T H E
D E T A I L
Monday, March 18, 2002
Good morning via the "Detail," a weekly e-mail newsletter that greets latent print examiners around the globe every Monday morning. The purpose of the Detail is to help keep you informed of the current state of affairs in the latent print community, to provide an avenue to circulate original fingerprint-related articles, and to announce important events as they happen in our field.
Last week, we took a look at proficiency testing, and had some excellent discussion on the board. If you didn't get a chance to read over the article, it can be found in the Detail Archives. Visit the Detail chat board to catch up on some great comments. This week, we take a closer look at Judge Pollak's March 13 reversal of his January 7 ruling to exclude latent print examiner opinion testimony.
The first phase of Judge Pollak’s reversal was a review of the January 7 ruling. The reason given for reconsideration: namely, that the January 7 ruling “did not consist of testimony by witnesses I had actually seen or heard.” The first Government witness was Steven Meagher, who testified to the ACE-V process, no minimum number (citing IAI Resolution, Israel symposium, and SWGFAST), training and certification program, and a description and assessment of the FBI LPE Proficiency test given to FBI-certified latent print examiners. Kenneth Smith also testified for the Government as a CTS advisor, mostly to the preparation and content of CTS proficiency tests, and that the difficulty of these tests, in Judge Pollak’s words, “corresponds reasonably closely to the difficulty presented to fingerprint print examiners by their day to day work.”
Defense witnesses included Allan Bayle, Janine Arvizu, and Dr. Ralph Norman Haber. After examining the FBI proficiency test, Bayle found the relatively low quantity of non-identifications and the quality of the latent prints therein to be, “on the whole, markedly unrepresentative of the latent prints that would be lifted at a crime scene.” Upon cross-examination by the government, Bayle testified that ACE-V is reliable and is used by him in daily assignments. Upon further questioning, Bayle related to the court that erroneous identifications in the McKie and related case, as unveiled by Pat Wertheim and David Grieve, were still under inquiry. Janine Arvizu was “highly critical” of the FBI proficiency tests, citing few indications by the test makers as to what they intended to measure. Dr. Haber was also highly critical of the tests, and further testified that “V” for verification in ACE-V did not accurately reflect what was truly taking place, and that the term “Ratification” would be a more appropriate term for a second examiner repeating the ACE process for an identification known to have already been effected by the previous examiner. Both Arvizu and Haber further indicated that the “stratospheric test success rate” (Judge Pollak’s terminology) raised “red flags.”
CORRECTION OF THE
A. Whereas Jan 7 ruling stated that there were “no controlling standards” Pollak reconsidered because of Meagher’s testimony regarding IAI 1973, Israel 1995, and SWGFAST guidelines.
B. Whereas Jan 7 ruling stated that there were “no mandatory qualifications for becoming a fingerprint examiner” and “no uniform certification process,” Pollak reconsidered because of the FBI’s rigorous “qualification regime” detailed in the p.12 footnote:
Pollak restated Kumho’s flexible interpretation of the Daubert criterion, emphasizing that the trial judge enjoys the same flexibility in HOW reliability is determined as he/she does with respect to the ultimate reliability determination itself. In an awkward transition into justifying his change of mind, Judge Pollak quoted Kumho, offering the fact that “an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field,” as a reminder that “fingerprint identification is not a discipline that is confined to courtroom use.” Using the determination as to “whether an FBI fingerprint examiner operates at a proper level of intellectual rigor when she comes to court as an expert witness” seems to be shallow justification for reexamining the January 7 ruling. Nonetheless, at least he did… and he reversed himself.
From there, Pollak listed two points which he considered: 1) the extent to which the several Daubert factors “are reasonable measures of the reliability of expert testimony,” and 2) “whether the recent [reconsideration hearing] alters in some significant way the pertinent facts drawn from the Mitchell record.
He addressed these points first, through a consideration of peer review and general acceptance, but more striking than the reconsideration is the last sentence on page 30 of his ruling: “The fact that fingerprint specialists are not “scientists,” and hence that the forensic journals in which their writings on fingerprint identification appear are not “scientific” journals in Daubert’s peer review sense, does not seem to me to militate against the utility of the identification procedures employed by fingerprint specialists, whether on the witness stand or at the disaster site.” One major area of concern with this latest ruling involves the distinction between ACE-V as a technical versus scientific discipline. It seemed that Judge Pollak was making every effort throughout the record to attempt to establish that fingerprint examination does not meet traditional definitions of science. A noteworthy example is in his discussion of general acceptance: “By the same token, I conclude that the fingerprint community’s ‘general acceptance’ of ACE-V should not be discounted because of fingerprint specialists – like accountants, vocational experts, accident-reconstruction experts, appraisers of land or of art, experts in tire failure analysis, or others…” ART APPRAISERS??? “… and hence are not members of what Daubert termed a “scientific community.”
Is there a more classic example of the term “bitter-sweet” if this ruling is considered a victory for latent prints?
Next, Pollak considers the factor of “testing,” and refused to “depart” from his January 7 conclusion.
Pollak then addressed the issues of error rate and standards, on which he did significantly modify his January 7 position. Although additional testimony regarding the FBI proficiency testing convinced Pollak that the tests were “less demanding than they should be,” no testimony demonstrated that FBI examiners possess less than “acceptable” levels of competence. In short, there “was no evidence that the error rate of certified FBI fingerprint examiners is unacceptably high." With regard to standards, Pollak reviewed three elements of ACE-V, which contributed to his January 7 conclusion that there were no generally accepted controlling standards. 1) Whereas the Jan 7 ruling found no apparent agreement regarding qualification standards for fingerprint examiners, Pollak reconsidered, finding that “…the standards prescribed for qualification as an FBI fingerprint examiner are clear.” (training standards) 2) Whereas the Jan 7 ruling stated that “jurisdictions varied widely with respect to the minimum number of Galton points required for finding a “match,” Pollak reconsidered, stating that it had appeared that stringent standards in other countries (UK: 16 points, Australia: 12 points) as reflected in the Mitchell transcripts had made it appear that there was a “lack of rigor in FBI standards.” Pollak explains that the “Mitchell testimony… did not accurately reflect the then state of the United Kingdom and is now entirely out of date.” Pollak concluded that the abandonment of the numerical standard in the UK lends credence to the FBI’s position, and represents sufficient uniformity to satisfy Daubert. And finally 3) Whereas the Jan 7 ruling deemed the evaluation stage of ACE as subjective, Pollak reconsidered: “On further reflection, I disagree with myself.” … “I should have gone on to focus on the process the word [subjective] describes.” (Evaluation) To complete the acceptance of standards controlling the techniques of fingerprint examination, Judge Pollak explained that he was “now persuaded that the standards which control the opining of a competent fingerprint examiner are sufficiently widely agreed upon to satisfy Daubert’s requirements.”
I was surprised that the NIJ study was so abruptly introduced when Pollak concluded, “to postpone present in-court utilization of this ‘bedrock forensic identifier’ pending [NIJ or other public/private research] would be to make the best enemy of the good.” This goes further than implying urgency, and almost mandates “a ‘verification and validation’ research agenda” sponsored by NIJ. It will be interesting to see how long it takes to structure such an agenda, if plans are not already in the works.
Ironically, Pollak enters 3 more pages into the record of the Fauldsonite, Colin Beavan’s “admirably described” history of fingerprints before reassuring us that “the techniques of North American fingerprint identification specialists appear to have reached a level of sophistication paralleling that of their English counterparts.”
However, the most concerning prediction of Pollak was saved for the end: that “it is to be expected that English trial judges, in accordance with [Regina v.] Buckley, (1) will require a showing (or an agreement of the parties) that (a) a fingerprint examiner called as an expert witness is properly credentialed and (b) any prints presented in evidence will, at least arguably, possess the characteristics referred to by Lord Rooker as predicates for determining the existence or the non-existence, of a match; and (2) will, subject to such a showing (or agreement of the parties), permit the examiner to give testimony before the fact-finder. The ACE-V regime that is sufficiently reliable for an English court is, I conclude, a regime whose reliability should, SUBJECT TO A SIMILAR MEASURE OF TRIAL COURT OVERSIGHT, [caps added for emphasis] be regarded by the federal courts of the United States as satisfying the requirements of Rule 702 as the Supreme Court has explicated that rule in Daubert and Kumho Tire.” So what are the “characteristics referred to by Lord Rooker"? Are you ready for the U.S. “TRIAL COURT OVERSIGHT” recommended by Judge Pollak?…
In Regina v. Buckley, 143 SJ LB 159 (April 30, 1999), the Court of Appeal stated that “if there are fewer than eight similar ridge characteristics, it is highly unlikely that a judge will . . . admit such evidence . . .” and “the prosecution should not seek to adduce such evidence.” If there are MORE than 8 characteristics, then “a judge may or may not exercise his or her discretion in favour of admitting the evidence.” The court of appeal was nice enough to list some elements the judge could consider when making his fingerprint examination, including “the number of similar ridge characteristics, whether there are any dissimilar characteristics, the size of the print . . ., the quality and clarity of the print . . ., as well as factors such as smearing or contamination.” And of course, the judge must “warn the jury that it is evidence opinion only, that the expert’s opinion is not conclusive and that it is for the jury to determine whether guilt is proved in the light of all the evidence.”
SO… Are you ready for my take on the whole reversal of Judge Pollak’s own decision? Yikes. Here is what you would need to testify under Judge Pollak’s ruling:
So… A success FOR the science of fingerprints? Or a Trojan horse? Celebrate? I don’t want to be too pessimistic, but perhaps it might be wise to skip the party and prepare for attack. Don't get me wrong... I'm all for higher standards. And maybe this is what it will take to force that change. And yes, I may have slightly exaggerated (or only viewed the worst case scenario) of some of Pollak's implications from the information within his ruling. But I just hope and pray it doesn't provide any sort of foundation for future attacks on the science we practice. And I'm still confused about being grouped in a "non-scientific" arena with art appraisers!!
Let’s discuss this one on the message board. If I’m being to “down” on this ruling, feel free to slap me around a bit, but please defend your position with Pollak’s ruling. I did have this Detail reviewed by three persons before printing, and two out of three said I wasn’t being too harsh. I know many of you expressed notes of satisfaction with Pollak's reversal, but after a thorough reading, I felt somewhat less than satisfied. I hope I am wrong and that I have seriously misread Judge Pollak’s intentions, but I predict will be seeing his words being used against us in the years to come. So log on to the discussion board and give your input! The informal Detail "Chat board" is available, as is the onin.com forum.
On a much happier note, Judge Pollak announced that STEVE MEAGHER BECAME A REAL PERSON!!! Congrat’s Steve!! I hope I’m not the only one to send you a 1 year birthday card on the anniversary of your testimony, February 25, 2003. :--))) I had a neat idea for a cartoon that I just couldn’t get drawn up to look right… it was Pollak as Geppetto and Meagher’s head on Pinocchio, and from the bench, Pollak was cutting Meagher’s strings turning him into “A REAL PERSON!!!” ha ha haaaaa…. I will leave to your imagination whether or not Meagher had a long nose. He he heeee…
Over the next few weeks,
let’s look at some of these Plaza elements in more depth.
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Until next Monday morning, don't work too hard or too little.
Have a GREAT week!