How expert is the expert?

[Iain McKie]

One of the issues I hope will be covered by the ongoing 'Fingerprint Inquiry Scotland' is the reluctance by the legal establishment to challenge 'expertise' in all its forms. The true expert has nothing to fear from examination. The incompetent and the charlatan has milked the system for too long.

The legal magazine ‘The Firm’ devoted much of its last issue to this very question and these are links to a couple of articles by myself and Donald Findlay QC who successfully defended Shirley against the SCRO in 1999.

http://www.firmmagazine.com/features/53 ... _dare.html

http://www.firmmagazine.com/features/53 ... _dock.html

Is there scope for international standards to be applied?

Your thoughts would be appreciated.

[Pat A. Wertheim]

Dear Iain,

As you probably are aware, the National Academy of Sciences in the US has recently issued a lengthy report titled Strengthening Forensic Science in the United States: A Path Forward ( hereinafter refered to as "NAS Report"). There are some who believe the recommendations in that report are unnecessary, and too harsh. There are others who believe the actions recommended are way overdue. The most likely result of that report will be the gradual adoption of the majority, if not all, of the recommendations.

For a good, brief summary of that report, see http://www8.nationalacademies.org/onpin ... rdID=12589

There are some excellent forensic laboratories in the United States. There are some excellent forensic laboratories in the UK and in Scotland. The US is handicapped in this area by a form of government that mandates local autonomy and virtually prevents federal interference at a state and local level. We have around 22,000 (the number varies, depending on the source) independent law enforcement agencies. The vast majority do not have laboratories. Most do not even have a single trained crime scene or fingerprint officer. Even in the police agencies that have forensic laboratories or practicing experts, implementing the recommendations of the NAS Report will be an almost impossibly complex and difficult task.

If a similar set of recommendations were to be considered in Scotland, implementation could be effected by a vote of Scottish Parliament and accomplished at lightning speed, compared to what we in the US are capable of.

If pressed, some who are familiar with Shirley's case and a multitude of others in Scotland (as discussed daily at http://shirleymckie.myfastforum.org/forum1.php ) would suggest that the reforms set forth in the NAS Report are more necessary in Scotland than in the US. I would not disagree with that assessment.

[Charles Parker]

The following is my POV and mine alone.

In the federal system governing expert testimony it follows FR702 which basically states that an expert may testify from 'Scientific', 'Technical' or 'Specialized Knowledge'. My state a long time ago adopted FR702.

Now for Scientific Expert testimony certainly a central board would be helpful. I have my doubts about one for Technical Knowledge, and those experts who testify based upon 'Specialized Knowledge' would be very difficult to manage from a central forensic board.

By requiring all 'Expert Testimony' to be first certified by a central expert board would in effect limit the testimony that the fact finder could find useful in deciding an issue. It would limit those experts that a prosecution might use to prove their key points, and it would also limit those expert witnesses that would be there for the defendant to rebut the prosecutions key points.

Scientific Expert Testimony---perhaps. Technical and Specialized Knowledge Expert Testimony----I do not think so.

[Gerald Clough]

As you say, there is a great deal of expertise grown out of experience that has a lot of value. I think that's why the higher courts consistently refuse to concoct specific checklists for admissibility and give considerable deference to the trial court's judgment. What's been viewed with alarm is the representation of conclusions that purport to be scientific truths when there is no valid evidence that propositions taken to be true in rendering the conclusions have been established to be true. I think the concern is largely that the arena contains many conclusions that do indeed grow out of scientifically valid propositions and that less substantiated and unsubstantiated conclusions often improperly take on the same status as science.

I see many of the latter sort in appeal cases. Often, plain guesses are stated as absolute conclusions that sometimes don't even rise to the level of opinions based on considerable clinical experience. They are still at the lowest level of speculation, the sort of thing that might prompt research, but they are rendered as an opinion in exactly the language of scientific conclusion. They are expressed by scientists, but they are in no way scientific. One of the good effects of being prompted to explore this issue has made it possible for me to craft challenges to this kind of unvalidated opinion.

The more I look at this, the more I come to realize how much improper weight has been given to clinical notions that were presented and accepted as scientific conclusions. I would offer as an example one of the most common types of conclusions, time of death. Time of death has long been one of the most difficult of forensic inquiries. In some cases, the conclusions are solidly valid. In some, the conclusions are strictly guesses, and although stated in an absolute range, neither end of the range can be shown valid from the information available to the analyst. They are not dishonest conclusions. But they could perhaps best be characterized as "common sense," if the person applying the "common sense" happened to have a body of experience examining the dead and observing the relationships between what they see and what was known. This is quite a different thing from the conclusion of an entomologist who concludes from a large body of validated knowledge and who clearly states the presumed exclusion of misleading special circumstances.

An important benefit of a more determined effort to explore the validity of scientific conclusions is clarification of what testimony is clinical and which is scientific and which aspects of any expert's work may properly be challenged and which is beyond reasonable challenge. We see a number of cases in which the scientific basis for fingerprint identification is challenged and few in which accuracy of the observations are challenged. We should be working in a field in which the conclusions can be validated and only the observations that produced the data are subject to challenge. This has nothing to do with any benefits of certification. Some of the most public erroneous identifications were made by highly qualified and certified examiners who made errors in interpreting what they observed. I have to think a lot of that grows out of the bassakward situation in which challenges are expected to be faced in the wrong aspects of the examination. (Not wrong today, but wrong in the sense that we can establish validity and moot those issues.) A lot of data was generated to overcome the vague threshold of conclusion, but rather uncritical observations could be made with confidence.

I think this whole thing will ultimately result in a very high degree of confidence in fingerprint conclusions and a more appropriately critical approach to interpreting observations and reexamination of those interpretations as the appropriate way to explore the possibility of challenging a conclusion. And the forensic science world is far bigger than our own little corner. I think it will lead to putting purely clinical guesses in their proper places as evidence. We have to view science not as something apart, but as merely the process of establishing what can stand up to rigorous inquiry and therefore can be accepted with high confidence. The function of the relevant law is to protect the finders of fact from conclusions that cannot have that status and from concluders who do not understand the nature of their own conclusions. It's not to keep useful information from them. It's simply to give it appropriate weight.

[raybie]

Just an observation. There appears to be a lot of academics represented in the National Research Council (belonging to other field such s biometrics etc. mentioned at the end of the article) and not enough forensic practitioners.

If we are to really get to the root of deficiencies within fingerprints, we need to get the top fingerprint experts contributing to these discussions.

Just my opinion.

[Gerald Clough]

Part of that is simply that top practitioners are largely busy with examinations, rather than rigorous publishable research. But examiners are involved in current and upcoming research. Is is also important that examiners be willing to contribute time when invited to participate as subjects in controlled reliability studies, which often involve issues of potential biases (using the term "bias" very broadly).

It is especially important that experienced examiners join in helping to craft validation studies. Those will need a lot of input from examiners, if the studies are to be applied to what examiners use or would find it possible to use in examinations.