CLPEX Chat Board

Let's shift from the "You said . . . I said . . . he said . . ." silliness to a point that was brought up in one of those discussions, which I had hoped would be followed up more. "Say What" challenged Pat on the "science" involved in his conclusions in the South African case. Pat conceeded that his examination would not qualify as science under the Daubert criteria, but said that he believes his results are reliable as a technical field in which he is an expert.

I see Say What's point. In broader application, when do you cross the line from science into a lower order that would not be considered true science? The fingerprint critics all point to DNA as a true science, but argue that fingerprint identification is not science. None the less, most courts accept fingerprint identification as good science. But now, one judge in Maryland has ruled that fingerprint comparison is not science. Presumeably, that judge would still allow DNA.

What is "Science?" Where do we draw the line? If fingerprint comparison is science to some, but not to others, how can we raise the bar? Or do we even need to?

In periferal fields such as the one Pat testified to in that South African case, are his conclusions really reliable even though they are not scientific? What about footwear examinations? Are they "science" under Daubert? Firearms? Documents? Fracture matching? Isn't this line between "Science" and "Technical" a little hazy and subject to judicial interpretation and even variable interpretation in different judges' rulings?

Thomas,

As a bit of an aside, but directly responding to the following statement:

Pat conceeded that his examination would not qualify as science under the Daubert criteria, but said that he believes his results are reliable as a technical field in which he is an expert.

As a result of Kumho, isn't it true that a field doesn't have to be scientific to undergo a Daubert challenge? That being the case, it doesn't have to be scientific to pass a Daubert challenge. Or basically, Daubert isn't there to determine if a technique is scientific.

This is from everyone's favorite resource, Wikipedia, but it represents my understanding:

In Daubert, the Court found in the text of Rule 702 a gatekeeping function for federal trial judges who had to determine whether expert scientific testimony was admissible in a federal trial. But Rule 702 applies to "scientific, technical, or other specialized knowledge." "This language makes no relevant distinction between 'scientific' knowledge and 'technical' or 'other specialized' knowledge." True, Daubert only dealt with scientific knowledge. But that was the nature of the case, and did not stray beyond the facts of that case.

The Court observed that the line between "scientific" and "technical" knowledge is not always clear. "Pure scientific theory itself may depend for its development upon observation and properly engineered machinery. And conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases." If the line between "scientific" and "technical" knowledge was not clear, then it would be difficult for federal trial judges to determine when they were to perform Daubert's gatekeeping function and when to apply some other threshold test the Court might craft for applying Rule 702. Furthermore, the Court saw no "convincing need" to draw a distinction between "scientific" and "technical" knowledge, because both kinds of knowledge would typically be outside the grasp of the average juror. Accordingly, the Court held that the gatekeeping function described in Daubert applied to all expert testimony proffered under Rule 702.

So whether or not a technique is science doesn't matter under Kumho for the purposes of Daubert, just that it's being proffered under Rule 702.

So maybe this can be applied to your final question that we don't even need to...

Pats arguments may not qualify under Daubert standards but that does not make them any less "scientific"

Daubert is a way for courts to gauge what types of scientific testimony should be allowed into the courtrooms and does not decide the scientific nature of his work.

In the case of the DVD cover Pat tested his hypothesis and found evidence to support his argument. If Pat had found that the lifts looked the same as the drinking glass he would have had to abandon his hypothesis and his testimony would have been different.

Astrology has tried for a while to be included as a science and some belive it to be one however they would be wrong as astrology only seems to hold on to evidence that supports its claims while ignoring facts that deride from its claims.
The same could be said for religion ... there is no evidence to examine per se and no way to test religions claims and no way to prove or disprove its tenants. Not to say that that is nessisary for religion but it does show why it is not a science.

Is fingerprinting technical or scientific? I think we get off point with this question. Because it is both. Running a DNA test is a technical skill that does not require any scientific background to preform. But that does not make anyone question the fact that DNA is a science.

Judicial definitions aside "Science" is simply the study of the natural world through testing and evidence gathering. Its claims are based on facts and direct or indirect obervations of the universe around us and should the observations change then so should the claims.

Fingerprint identification is a science and should there be a case of identical fingerprints or of a tape lift from a DVD case looking like a drinking glass then we are going to have to act like scientist and be open to the evidence in front us.

I think it's important to put the almighty 'science' in perspective.

The simple answer to your question is that science is organized knowledge seeking.

The logical fallacy that is appealing to the authority of the great and almighty "Science" rears its head all too often at the hands of the modern day kibitzer.

For far too long the myth of the "Scientific Method" has persisted. I reject the notion that there exists a single "Scientific Method" which enables science to supply us with truths in a mechanical fashion. If there was such a methodology in existence, there would be no such thing as 'junk science' because its application to an area of study would, by definition make something 'scientific'.

Furthermore, application of the "Scientific Method" which is lauded so frequently provides no hypothesis, law, theory, as to why "scientific" disciplines have had to revise their findings over time. A quick cursory survey of any field of discovery will show that applying the 'Scientific Method' has resulted in revisions that contradict earlier findings. Does this mean that the "Scientific Method" itself has an inherent error rate?

What critics fail so often to recognize is the personal, tacit knowledge that is inherent in the evaluation of observations in knowledge seeking. You cannot remove the observer from the observation. Our skills, biases and passions play important roles in discovery and validation.

The fact that we know more than we can articulate is evident in the notion of 'Sufficiency' in individualization standards, in the apprentice style nature of training LPE's, and exists at the heart of dismissing a point standard.

However, this debate is nothing new. It's a rehash of the Postivist movement in the philosophy of science and even begins to speak to the rationalism vs. empiricist debates of long ago.

Ahh. The old What Is Science? discussion.

We get bound up in this science question. But, "What Is Science?" has always been a running question across all fields. There are plenty of definitions, including the casual usage to talk about mere application of skill, like the "science" of knife sharpening. The ones we look to speak of facts and knowledge gained by systematic observation.

Lots of sciences are done largely by observation, analysis, and articulating principles. Science generally boils down to dealing with the nature of natural phenonena. Sometimes, that evokes philosophical argument which is often, I think, more or less an interim argument pending more knowledge. It comes up in mathematics with the question of whether or not one or another area is entirely artificial or reflects the natural order. But, since the goals are almost always to develop tools to apply to phenomena, it all involves development of scientific knowledge.

What makes me, what qualifies me to be, one of that particular field whose work might be taken seriously? Obviously, study of what has come before and some proof of my ability to make other observations that have led to generally accepted knowledge. If I were an untrained and unexperienced person, I might make an interesting, even a momentous, observation, but my proposed conclusions wouldn't be taken seriously until the real behavioralists had duplicated it. If a lay person were to report finding two people with a substantial portion of friction ridge skin identical, we would scoff, and some would look at the offered images to see where he went wrong. If Pat reported finding such, we might think about (1) hiring a hit man or (2) starting to take courses in firearms examination.

But are those who apply the knowledge for practical ends "doing science?" A body of hard-won theorizing, inspiration, systemizing, and checking against physical observation developed the calculus. It was driven by both the need to predict physical phenonena and the entirely valid (and maybe primary) desire to discover tools that would one day point to new fields of observation.

Engineers apply the calculus. Few of them develop new mathematics. But the validity of their application of calculus to build things that will kill thousands of people if it's misapplied is virtually universally accepted. Their applications are never absolutely correct, never the exact representation of physical reality, since there are many variables. Their calculatons are always an abstraction, but it works so well and reliably that we will use their bridges and ride in their aircraft.

Are fingerprint examiners' analysis and conclusions "science?" Are the engineers' conclusions "science?" It's not whether or not they use mathematical arguments. Nor is it that there is a 100 percent certainty that their calculations are an absolute model of reality. It's based on scientific knowledge, a lot of experience about reliabiliity, and some assumptions. The assumptions may be important. An engineer concludes that that particular bridge will perform as needed, assuming the materials and methods used meet criteria. He has no knowledge of the actual construction and certainly no direct knowledge of the actual manufacture of those materials.

I think we can get off track when we put a lot of effort into arguing that we model the comparison process on the scientific method of analysis, hypothesis, testing, and verification. It's fine. It's a good way to think about it. But doing the comparison is not "doing science." It is, though, a process of applying scientific knowledge. It's not significant that there can be no observation of every person's physical characteristics. If a field of scientific inqury is worth doing, it's generally because it applies to something that exists in sufficient quantity to be important (or at least inportant to those in the field). If it's that common a subject, one is unlikely to examine every example.

I think the key to fingerprint comparison is that I can explain just why I came to that particular conclusion. Everything I cite falls within generally accepted knowledge. I can show biological studies of friction ridge formation. I can walk someone through my analysis and comparison. For every question that someone might raise about that comparison, I can explain my interpretation. And I'm not ignoring scientific knowledge or observations that don't support my methods.

Is is important that every examiner agree with me? Hardly. The differing opinions of experts is the core of a great many lawsuits. It's true that most examinations are relatively straightforward, and it would be hard to find any argument over what was observed in those cases. The important arguments are over conclusions, and we certainly know that quite well qualified experts can and do differ. And they differ in ways that both can't be right. But the mere fact that examiners CAN look at each other's conclusions and follow the same process to different conclusions means that the process is systematic. They may even differ over the interpretation of what is observable. But the fact that they can argue the interpretations or the conclusion does not invalidate the practice of fingerprint comparison.

The error of many critics is to try to take fingerprint comparison in isolation, trying to treat each comparison as a separate scientific study. It would be as if we had encountered only one latent print, that it was the only one ever found, and that we had discovered the only person known to us to exhibit friction ridge skin, that we were able to determine how that skin had formed on that one person, we had little or no information about other people, and we were trying to apply the scientific method to determine if that person was the source. We could not establish identity in that case. We could not apply the vast experience of observing skin impressions in reaching a conclusion. I would not be surprised if that body of observation was the greatest body of observation available to any field. Note I didn't say it represented a vast body of testing of comparisons, just that it might be more instances of observations than have been made in any other expert field.

That experience leads to a useful and pretty powerful assumption about people's friction ridge skin. And we can lend some support to that assumption with arguments about the nature of random events. Now, the process of constructing a human is not so amenable to analysis as are many of the assumptions made by the engineer. But that they are different in nature doesn't make one of them all that much less useful. I can't offhand think of a field of science in which only absolute knowledge is all that can go into the pot. For that matter, if that were available, those scientists could all take the rest of the year off.

I don't think it's a matter of needing to raise the bar in fingerprint comparison. There will no doubt be more knowledge come from the biological sciences. That will be as it will be. What is important, I think, is that we be as prepared and practiced as possible to explain what we do and how we do it and why we believe it is reliable. It is also important that prosecutors know that we need to cover the ground well and get those things into the record, even when the defense is naive. Appeals courts give great deference to trial judges in decisions on admissibility, but before they set a hearing, they will see if they can decide from the record. It is when the information is not in the record that they will agree to hear from someone new. We can't deny the existence of errors. We can be prepared to satisfy anyone interested that our conclusion is not one of them.

A specific examination leading to a specific conclusion -- is it science? I had a wonderful discussion one time during the early days of Daubert hearings on fingerprints, I believe it was with Dave Grieve. At the time, we, as a discipline, were focusing on each of the four criteria set forth by the Supreme Court in Daubert. In the conversation with Dave, as I recall, I was trying to put strict interpretations on each of the four criteria. Dave was growing increasingly frustrated with my failure to come down from the high ground. Finally, he crystallized the thought for me: Science in the Courtroom is not necessarily the same as Science in a Laboratory. Bingo! I got it! In the courtroom, if the judge accepts something as science, it IS science, at least for that specific case at trial and for the testimony you are giving. The defense may not like it, but your testimony has been accepted as science. The pure academic scientists may not like it, but it is not their courtroom.

I believe that was a thread woven through Gerald's comments, the concept that you should be able to explain what you do. If you can articulate the underlying principles and methodology sufficiently to convince the judge, then fingerprint identification or any other field of observation/conclusion will be accepted as science by that judge.

Does the exception prove the rule? Judge Pollak ruled against fingerprints as science based on his reading of the transcripts from the Byron Mitchell case, but reversed himself when he heard testimony presented by Stephen Meagher. On the other hand, Judge Souder in the recent Bryan Kieth Rose case in Maryland heard Stephen Meagher testify and ruled that fingerprint identification did not meet the test of science. Since I would assume that Stephen's testimony was essentially the same as it had been in the Mitchell case, I conclude that it was Judge Souder's interpretation that was different. Apparently, Stephen articulated the principles sufficiently for Judge Pollak, but not so for Judge Souder.

And what about that case that "Say-what?" was asking me about? Is the determination of fingerprint substrate from a lift a scientific endeavor? I really don't want to go there, but I think on a spectrum between Daubert and Kumho Tire, it is much closer to Kumho Tire. It becomes irrelevant, however, when the judge accepts the testimony.

And "What is Science?" begs the follow up question, "What kind of science?" Pure science? Applied science? You can't apply one definition and one description of science to every field that has aspects of science to it. In court it's up to the witness to understand what he/she does and be able to explain it so that the judge can understand it as science. If the witness succeeds, it is science. If the witness fails, it is not science.

But even if it is not science, it is admissible if the judge agrees to admit it. Now I understand perfectly.

That's the sort of thing I've had to adapt to working cases in the federal appeals courts. When I hit a case where the appellant was putting forth the results of his polygraph exam, my reaction, from years in getting cases through trial court, was, "Say what?!" The explanation to me was that the judges will hear whatever they decide to hear and decide for themselves if it has any weight. It makes for some interesting issues, sometimes.