One Discrepancy Rule

[Outsider]

I am the person who wrote last week's ' Detail' about statistics and the Shirley McKie case. I hope nobody minds me jumping into this discussion with some observations.

I think that Pat Wertheim made an interesting point in his Aug 9 posting regarding AFIS. Statistical theory says that if you are working to identify or exclude a person who has come to you from an AFIS search of 1 million records, you have to be a million times more careful compared with a case where a detective gives you a suspect. This is simply because the AFIS is a million times more likely to present you with an innocent person who has a print that is extraordinarily like the latent. So a practice that might be safe for a 1 to 1 comparison may not be safe with AFIS.

You know, I cannot see any way you can come to conclusions about any of the points in this thread. In all walks of life just discussing things NEVER gets at the truth. Experience can give authority, but unless there is a feedback mechanism for practitioners to learn from mistakes, experience counts for nothing, or may even be dangerous. Theory must always be tested by experimentation.

Pat's 'playing' with the AFIS system to produce similar-looking prints is the kind of thing that can get at the truth. I don't know if you already do 'whole system' or 'closed loop' quality assurance tests, if not Pat's idea could form the basis of these. Set up a permanent department to find similar-looking latents and inked prints, and send them out to every fingerprint organisation in the world. Don't say if they are from the same person or not. Judgements are returned to the research department for analysis. It would be best if these tests could be 'slipped in' with the normal work, this way the whole system would be tested, individual skill, training, management practices, everything. This would all have to be done in a spirit of striving for 'continuous improvement' (to quote the great man W. Edwards Deming).

[L.J.Steele]

Whoever is looking into the validity of third level detail should be visiting the bibliographies of several authors who use this site including my own. Third level detail is as solid as the other two. In 'fact' all three are interdependent and biologically bound through embryology, physiology and anatomy. Scars would fall into a different subcategory of third level because of their set of variables.

I believe that would be the FBI and the National Institute of Justice (NIJ) pursuant to the Inspector General's report on Mayfield. They may indeed agree with you, but at the moment, OIG seems to think the issue is unsettled.

I too have had a defense lawyer say outside of court, ' we are not interested in the truth'. Its a bit like our system of parliamentary privilege but is consequence can be very harmful for victims of crime.

And the defense bar's job is not to establish the truth. The prosecutor's job, is to "do justice" according to the Supreme Court. The defense bar's job is to zealously represent the client within the bounds of the law, which includes our (and the prosecutor's) duty of candor to the Court.

Let's assume there's a fingerprint ID in a case that's the sole evidence linking my guy to the crime. As defense counsel, I have a reputed expert I trust go over the evidence. The expert tells me that the match is solid and there's no likelihood of fraud or fabrication. Client still asserts his innocence and wants to go to trial.

The prosecutor's job is to prove guilt beyond a reasonable doubt. My job would be to cross-examine the print expert and test their training, proceduces, chain of custody and so on. In the normal course, the expert and the prosecutor are going to do a fine job defending the work and the client is likely to be convicted. If, on the other hand, the expert or prosecutor come off poorly, the client may be acquitted.

The difference, and I admit it is a fine one, is between saying in summation:
"The state hasn't proven that the fingerprint is Doe's because Expert Jones did not follow proper procedure, or wasn't adequately trained, or didn't maintain a proper chain of custody of the exhibit."
and
"That isn't Jones' fingerprint." Or "The police planted that print."

Even today the Justice 1 Committee into McKie is hearing expressions that fingerprints are a 'police' science. While I can agree the majority of fingerprint collections are administered under a police management system the science of fingerprints stands within the general scientific community. Cheers.

I think there can be some legitimate concerns about potential for bias, never mind outright fabrication, when the lab analyzing the data works for one of the parties. In another thread, I just posted a recent story on the Cowans debacle in Boston where there have been allegations of misconduct by the examiners working on a case where an officer was shot and had ID'd Cowans as the shooter.

I think even the critics are agreed about some of the basics -- uniqueness, permanence, and the ability to match a large portion of a print to a known exemplar. The questions start arising when one has a poor quality latent of a small portion of skin that the examiner claims matches to the defendant and to no other -- and to bring this dicussion back to the original post -- when there's a significant disparity which the examiner says is an explainable distortion rather than a discrepancy that results in a non-match. I submit there are legitimate questions there, some of which have been discussed in this thread.

[L.J.Steele]

I think there’s plenty of cases where attorney’s purposely give false information (or they twist the truth to suit their needs) and they do it so subtly that if their caught they can claim it was simply a misunderstanding.

The prosecution and I often have differing views of the same facts. At the appellate level, every fact should be cited to the transcript, an exhibit, or to a published source (a case, or an article). Thus, it can be verified. When I get the State's brief, I check their citations, particularly if it doesn't agree with my recollection or notes. I assume they do that to mine. Sometimes there is a mistake or misquote -- normally, I take it as an honest mistake. If it is serious, I will often let the State's Attorney know about it so he or she can fix it. If it isn't fixed, then I footnote the important errors to the Court. The prosecutor will often do likewise -- saved me considerable embarassment once when I missed a key "not" quoting transcript and had to file a supplemental brief re-writing the argument.

This is a bit harder for trial counsel who are working on a tighter schedule and generally from notes, not transcript.

Take for example in US v Byron Mitchell. * * *
There’s two false statements here. First, the article by Stephen Gray never states that 2 latent prints each had 16 points in common. The article states, “the standard requires at least 16 points”. The article never states this standard was met. The second part that’s twisted is when it says “These identifications, pursuant to standard Scotland Yard procedures, had been triple checked prior to the defendant’s arrest”. The article doesn’t state this either. It states that the prints were allegedly triple-checked.

I can see an attorney reading the article and making both logical leaps in good faith, assuming that normal procedures were followed and standards met unless there's a clear statement otherwise. And you are right that this sort of error can propigate because time-pressed attorneys do borrow from each others' motions without always verifying all the details, especially if the source is not readily available on line or in a local law library. (This is a dangerous practice as the ethics rules generally state that an attorney's signature on a document confirms that the attorney stands behind the research within.)

[Les Bush]

Hi Lisa,

I enjoyed your response it was a sit up at the desk moment. Your dissection and carving were well aimed but justifying the defense duty to a client as a paramount interest isnt a good political situation. This is a site for professional witnesses, experts in fingerprint science, we who believe in our knowledge and experience. To respond to your three replies is summed up in that one word, belief. We prepare our case and are prepared to defend our evidence within the rules of the science and law. The oath/affirmation of the court represents a critical factor in why we are there. Without the truth and being believed the judicial system and the community have few safeguards. We research our science and continue with contemporary change. We offer sound advice, freely. All of the above support the need for the truth. If you believe and trust your client then this concept would be understood. Cheers les

[Les Bush]

Hi Lisa,

I enjoyed your response it was a sit up at the desk moment. Your dissection and carving were well aimed but justifying the defense duty to a client as a paramount interest isnt a good political situation. This is a site for professional witnesses, experts in fingerprint science, we who believe in our knowledge and experience. To respond to your three replies is summed up in that one word, belief. We prepare our case and are prepared to defend our evidence within the rules of the science and law. The oath/affirmation of the court represents a critical factor in why we are there. Without the truth and being believed the judicial system and the community have few safeguards. We research our science and continue with contemporary change. We offer sound advice, freely. All of the above support the need for the truth. If you believe and trust your client then this concept would be understood. Cheers les

[L.J.Steele]

I enjoyed your response it was a sit up at the desk moment. Your dissection and carving were well aimed but justifying the defense duty to a client as a paramount interest isnt a good political situation. This is a site for professional witnesses, experts in fingerprint science, we who believe in our knowledge and experience.

Agreed. And I thank you folks for the forum. I think it is useful to explain why defense counsel does what he or she does. The defense duty in the U.S. is a constitutional obligation combined with manadatory rules of ethics enforced by the courts. For a defense attorney to not zealously represent a client, whether he or she thinks the client is factually guilty or not, is a disbarrable offense.

To respond to your three replies is summed up in that one word, belief. We prepare our case and are prepared to defend our evidence within the rules of the science and law. The oath/affirmation of the court represents a critical factor in why we are there. Without the truth and being believed the judicial system and the community have few safeguards. We research our science and continue with contemporary change. We offer sound advice, freely. All of the above support the need for the truth.

And we're in agreement. When I'm not representing a specific client, I want to see the prosecution get the right bad guy off the streets just as much as y'all do. I live in the community too. When I am representing that client, it's my job to make sure the prosecution plays by the rules, the trial is fair, and the case is proven by competent evidence beyond a reasonable doubt -- even if I think the client is guilty and deserves to go to jail for a long time.