CLPEX Chat Board

See attached for official document

Background:

https://m.phys.org/news/2017-08-justice ... ience.html


Rod Rosenstein's announcement at the AAFS last week

https://www.forensicmag.com/news/2018/0 ... nitiatives


Innocence Projects' response to Rod Rosenstein's announcement last week.

www.innocenceproject.org/innocence-proj ... -sciences/

While none of us reading this would ever say the NAS report from 2009 didn't exist, it always irks me that those people that are still carrying the pitchforks against forensic science neglect to mention the plethora of research that has come after the NAS. We learned a lot from it and a big takeaway was there was no money for research. The NAS opened that conduit and created a lot of opportunities.

In the IP's response, they didn't mention any studies that have been published after the 2009 report. They didn't mention the creation of OSAC. They didn't mention the DNA calculation error(s) from 2015 and still hold DNA up as the gold standard.

Does more research need to be done? Of course. Do forensic organizations need to take a larger stake in standards? Of course. But, to get it right, they take time. That doesn't mean the pursuit of justice needs to stop.

I was at the AAFS last week and I can assure you that even the 'gold standard' of DNA is assailed just as much as fingerprints from the validity to statistical calculations, to their interpretations, to the applicability and framing of the weight of a statistical measure to the non statistical deliberation of a jury.

I think the skepticism of forensic evidence is to be expected, it's just part of having an adversarial legal system. The demand for proof by the defense is to be to a degree that it causes doubt to the trier of fact. I would say that the skepticism is reasonable but logically it's a double edged sword that falls under the notion of 'Hume's Razor'
, namely that 'extraordinary claims require extraordinary evidence'. So, logically then there's two routes to take before the burden is put back on the skeptic. First, that the claim is so extraordinary that some extraordinary proof is required. (e.g. show me the evidence that fingerprints are unique). Secondly, that the evidence for an ID is mistaken. (e.g. it's subjective, no standards for thresholds, you might change your conclusion later (aka Dror)). Logically speaking, if claims to the contrary are taken (fingerprints are not unique/you made an error), the burden falls back on the skeptic to show evidence of their claim. I would argue it's why many of the questioning routes of the defense is for you to admit to various possibilities (Is it possible that...) as opposed to putting out actual assertions.

Obviously, in our legal system the burden of proof isn't actually placed on the defense, usually they just have to show reasonable doubt. While this can be done by actual contradictory evidence (this was a presentation/case study I saw at the AAFS. It was pretty awesome), it's not required that the defense provide evidence at all. Since the presumption is one of innocence, they can merely argue that the prosecution hasn't met their burden of guilt or provide an alternate context for the evidence. Since our testimony is sanitized of context, we're nothing more than the tool in the hands of the prosecution and defense. It's going to be framed in the most positive or negative way in the closing arguments anyway.

I firmly believe that, when doing a fingerprint comparison and making an identification, the mental process our brains go through today is exactly the same as the mental process in the brains of the fingerprint experts who founded the IAI over a century ago. Only the explanations have changed through the decades as we struggle to find a better way to describe a subjective mental process we cannot fully comprehend.

This scheme of evolving explanations is a game of leap frog with opposing counsel. We find an explanation that works and we win cases. It seems to be an honest, reasonable, logical explanation. It is the truth and we believe it. Opposing counsel eventually comes up with an attack that works, and we lose a case or two. We come up with a better explanation and we win again. Opposing counsel tries new attacks until one works, and we lose. We come up with a new word or two and we win again. Etc., etc., etc.

When new examiners who have trained in the last decade read the transcripts from the Daubert Hearing in the Byron Mitchell case (1999), they shake their heads in disbelief that we would ever try some of those ridiculous arguments. The same arguments today ("Zero Error Rate," for example) would lose the case, get you laughed out of court, and possibly force you to launch a new career, say, in the fast food industry. But at the time, they were new arguments for which the defense had not had time to formulate effective counter arguments. Those arguments sounded perfectly reasonable to us, we believed them, and they worked.

I see the current DOJ document as a very reasonable way to articulate our process. Not that I necessarily agree with every word of it, but my years of perspective allow me to see it as merely the latest effort to leap ahead of critics. While the DOJ document sounds reasonable to me, I would not be surprised if opposing counsel devise a clever attack in a year or two, and we have to figure out another new approach.

The best strategy for latent print examiners is to stay current, study the latest attacks, and learn the best way available today to explain what we do. The situation five or ten years from now will probably be different. But for now, this new DOJ document seems well suited for the court environment in which we find ourselves.

Pat

I agree almost completely with your analysis of how things have come to be and the adversarial nature of the court system, thus our testimony. But you seemed resigned to the current state of changing language and even philosophies every couple of years (or decades. the Mitchell case was twenty years ago. Where does the time go?) I would prefer to eliminate the need to keep changing things as a reaction.

You and I trained around the same time, so I know you will agree that we were taught to present the strength of our conclusion in the strongest way possible. It was up to the defense attorney to bring out any weaknesses. and heaven help an expert who would testify for the defense "against" us. We remained steadfast in saying that an "Identification was an Identification" all with equal weight. I certainly would never have said "this was a difficult call" during testimony and our reports conveyed no such distinction. But we all had cases that were "easy" "normal" and "difficult"

Perhaps the answer lies, not in the words we use but in the idea that it is okay to make distinctions between easy and difficult. Most of the past errors brought to light appear to be on "difficult" comparisons. But without explaining the differences in identifications, we lead our critics to criticize the whole discipline. I don't think the words we use (identification, individualization, inference, etc.) help us identify the cases that need stronger quality assurance by both the prosecution and the defense.

The "science of fingerprints" sounded good in the 70's and 80's and we liked the strength that that term implied when we testified. But now we are faced with the other pesky requirements of science, nothing is 100 percent absolute, science always leaves the door open to better conclusions based on additional data, etc. Science has been around a lot longer than pattern evidence identification. Maybe we should fully embrace science and abandon the adversarial nature of court when we conduct comparisons and make decisions. I think that is happening with the younger generation of examiners.

I'm hopeful at least that if we can "get it right' this time we could avoid having to backtrack in the future.

Bill Schade wrote: ↑Sun Mar 04, 2018 2:41 pm You and I trained around the same time, so I know you will agree that we were taught to present the strength of our conclusion in the strongest way possible. It was up to the defense attorney to bring out any weaknesses. and heaven help an expert who would testify for the defense "against" us.

From the perspective of the defense bar, one of my major concerns is avoiding wrongful convictions as early in the process as possible. Once a bad conviction happens -- be it plea or trial, there's huge institutional inertia against recognizing and fixing error

I would hope your job would be to present the strength _and limitations_ of your conclusions fairly and honestly to the jury, no matter which attorney you are testifying for. While I would love to have every defense attorney able to fairly cross-examine every kind of forensic expert, that's just not possible or practical. Worse many cases will never go to trial and will be resolved on your reports and how well they present your conclusions to a pair of busy laymen (the prosecutor and defense attorney).

As long as your language is accurate, with reasonable support in research, establishes that your procedure is sound, establishes that you followed that sound procedure, establishes what information you had that might not be task-relevant, and clearly explains its limitations (if any), as appellate defense counsel I won't have much to say about it.

Part of the issues with wording is that, for perhaps the first time, the bench and bar are actually looking at the research on jury comprehension and jury decision making to try to figure out the best way to present information.

I believe that "present the strength_and limitations_ of your conclusions" to both sides is what I was advocating and where I believe we need to go.

I think that is what is happening these days along with the research that is trying to figure out what a jury "hears" and "believes" in our testimony.

But words alone cannot change generations of acceptance of fingerprints as "positive" so I think being more transparant in presenting strength and weakness will have a more positive impact than debating and changing words.