CLPEX Chat Board

Does anyone have any comments on this portion of the appellate court's decision:

"However, while a comparison of bullets, much like DNA evidence, can lead to certain identification, fingerprint examination, as recognized by our supreme court with its observation that points of comparison in our jurisprudence range from 4 to 20, is far more subjective..."

and

"Nor are we aware of any case that suggests either DNA testing or comparison of fired bullets involves the subjective input of the examiner."

I wonder how much good old Chicagoland politics had to do with Judge Reginald Baker's opinion. It appears that sub-circuit judges such as himself are elected and represent specific "districts" if you will as opposed to being voted on by everybody in the County.

A quick little google search for the Harvey Police Dept. also suggests that they don't have the best reputation or history in the area.

I think the quote below has some strong implications on how we document and report out our findings:

People v. Safford:
"We reverse for a new trial based on the first claim only. We find the trial court's decision to allow the fingerprint expert to testify where the expert did not provide an evidentiary foundation for his testimony impermissibly curtailed the defendant's right to challenge that testimony in cross-examination, which negatively impacted the defendant's right to a fair trial under the facts of this case. We briefly address certain of the defendant's other claims at the conclusion of our discussion on the expert's testimony."

I don't know about you, but I do know examiner's whose testimony would have been along the same lines as Cutro. How about your agencies?

Roy Marzioli, Manager-Central Identification Services
Contra Costa County Sheriff's Office

Although the opinion features some of the same sort of poor understanding frequently displayed in such things, including the very common misuse of "subjective" (the same misuse found in common speech), the case is of interest for the legal analysis. I don't think it is much unlike the case that had to do with chemical analysis results being introduced through the report, rather than testimony from the actual analyst. In both cases, there was no opportunity to explore the actual analysis or examination. In both cases, testimony amounted to "An analysis was done, and this is the conclusion." It wasn't failure of counsel to solicit testimony. It just wasn't available. In the tox case, the analyst wasn't at trial. In this case, the analyst didn't have the information, which pretty much amounts to the same thing. His testimony would have as well been covered by a simple written report of the conclusion.

Now, back when the Earth was still cooling, that's how we (at least I) was told to do it. Not actually told to forget the details. It was just implied that getting into that would just confuse things.

While the court addressed it in a harm analysis, I also see many courts making distinctions depending on how much other solid evidence there is. I personally don't think it should make the slightest difference in a question of how much will be heard about method or scientific issues. It should be heard or not heard, without regard to how likely it is that the analysis fingers the right person as indicated by other evidence. But they do it anyway.

As to the original question about "subjective," prosecutors have been as much at fault as defense counsels and courts in promulgating the incorrect meaning, that being that because you have to look at it and make judgments, it's "subjective." Properly used, subjective refers to outside influence, which can be a genuine concern but specifically NOT what they were talking about when they used the word. Even if examiners were applying some varying point counts as a threshold, it still wouldn't be subjective. Poor science, but not subjective, except in the more remote sense if an unsubstantiated threshold was simply taken on faith by an examiner who was told that was proper.

And the statement, "Nor are we aware of any case that suggests either DNA testing or comparison of fired bullets involves the subjective input of the examiner." is nearly too preposterous for comment. I guess I agree, though. DNA, fired bullet analysis, and latent print examination are all, when properly conducted, objective. Things are difficult enough without perverting the language.

Hi Gerald,

Unfortunately, we have been painted with that brush not the least because we don't have a quantifiable standard for what constitutes an identification. I am not saying that one is even possible since we have no studies of support one way or another. However, it doesn't helt our image if we can't in some way describe what it was in two prints which convinced us they were contributed by the same source.

I found it interesting that the court stated, "Nor are we aware of any case that suggests either DNA testing or comparison of fired bullets involves the subjective input of the examiner." Not so much from the DNA, but from the ballistics. I talk to firearms examiners in my lab and they are facing very similar issues as ours'. I think part of the perception problem we are facing has to do with the press we are getting both from cases like this and some of our high profile mistakes.

I'm not a firearms examiner, but it seems to me they have even greater difficulties. We at least understand well how the features we use come to be. We only have one "manufacturing process" to deal with and only one "model." And our manufacturing machinery doesn't wear over time. Nor does our skin, which makes the marks we deal with, changes their character with use. We have more difficulty clearly defining relationships among details, but firearms present many entirely different kinds of marks.

But we both interpret our marks strictly objectively. Even a vague threshold doesn't render interpretive judgments and conclusions subjective. Subjective is an animal behaviorist interpreting an observed action as, for instance, aggression, on account of anthromorphizing, which is a kind of bias. Interpreting behavior without that outside influence, even when the interpretation may not be grounded in scientifically accepted knowledge, is still objective. You can never make a blanket statement that fingerprint identification is subjective, unless you can show that all examiners' interpretations and conclusions are the result of outside influence. You have to look at each specific case. It's a bit disheartening that jurists, who are in a field which spends a huge amount of time wrangling over the precise meaning of words can't get it right, even when misled by "scientific" experts who should know better.

Does anyone have access to the transcript of the testimony in this case. If you do, could you please contact me. Thanks,
Bill Leo
wleo@lasd.org