the Whorl Turns
by Brendan I. Koerner
The case against Robert Hood is far
from airtight. The Colorado Springs resident is charged with aggravated
robbery and kidnapping; in June, he allegedly forced his victim into a car
trunk at gunpoint and drove him around for hours, demanding his ATM
password, before abandoning the vehicle at a 7-Eleven. When the victim
mentioned that his attacker sported a gold tooth, detectives immediately
keyed on Hood, who is also a suspect in a separate murder case.
that lustrous tooth, however, Hood seems like the wrong guy—at least
according to his lawyer. The victim said his kidnapper stood 5 feet 11;
Hood is barely 5-4. The victim described the attacker's hair as short,
dark, and curly; Hood has been bald for years. The victim stated that his
tormentor spoke with no discernible accent; Hood speaks with a thick
Memphis drawl. According to public defender Deborah Grohs, the victim even
fingered someone else. "The day after the man was robbed, he was on
the street and he saw the man who robbed him," she says. "The
police didn't follow up on it. We found that dude, and he's got a gold
tooth! But they arrested Robert anyway."
weak identification didn't bother the cops one bit. They lifted several
partial fingerprints from the vehicle, and a faint palm impression was
linked to Hood. That's usually enough to force a plea bargain, since
fingerprints have been considered rock-solid forensic evidence for nearly
a growing number of legal experts are now questioning whether fingerprints
deserve to be a legal slam dunk; they believe that matching crime-scene
prints to suspects is more an art than a science, and an imprecise one at
that. The skeptics were heartened on January 7, when a court in
Philadelphia ruled that fingerprints should not be characterized as
scientific evidence. That decision, in the murder-for-hire case U.S.
v. Plaza, roiled a forensic
discipline once considered beyond reproach, and prosecutors begged Judge
Louis Pollak to reconsider. Last week, to the surprise of many, Pollak
stepped back from the brink—though he maintains that the science is
unproven, he will allow fingerprint experts to offer opinions in his
the willingness of so prominent a jurist to seriously question the
validity of fingerprints should encourage a fresh wave of challenges.
"This is one decision by one trial judge," says Robert Epstein,
the public defender in Plaza.
"Ultimately, the court of appeals is going to resolve this issue,
either in this case or in some other case."
for those who claim to have been wrongfully convicted on the basis of
shoddy fingerprints, the present furor won't be a ticket to freedom.
Unlike revelations provided by DNA evidence, which can positively verify a
convict's innocence, a post-verdict quibble over fingerprints will carry
little legal heft. But the uproar has given hope to current defendants
like Hood, who formerly stood almost no chance of beating a rap once a
fingerprint examiner took the stand. "I've been doing this for 17
years, and every fingerprint case we ever got before, you'd go,
'Fingerprint case? Oh, better plead,' " says Grohs. "We never
attacked the reliability of the procedure."
fingerprint brouhaha has its roots in a 1993 Supreme Court decision, Daubert
v. Merrell Dow Pharmaceuticals. For 70 years, scientific testimony had
been governed by the so-called Frye standard, which required only that
scientific evidence enjoy "general acceptance" to be admissible.
Daubert raised the bar
significantly, mandating that scientific techniques undergo rigorous
testing and peer review. Justice Harry Blackmun, author of the court's
opinion, also wrote that a technique should have a "known or
potential rate of error . . . and the existence and maintenance of
standards controlling the technique's operation."
the strictness of those criteria, some legal observers wondered whether
fingerprints could pass muster. Despite the widespread acceptance of
fingerprints among courts and the public alike—how many Law & Order plots could work without them?—the technique has
seldom endured laboratory scrutiny. The methods by which examiners analyze
loops and whorls date back to the late 19th century, when phrenology and
water cures were the rage, and have changed little since. Simon Cole,
author of Suspect Identities: A
History of Fingerprinting and Criminal Identification, says that
untrained records clerks, not doctors, pioneered the use of fingerprinting
for law enforcement purposes; they wantonly added the
authoritative-sounding letters FPE to
their names, though historians argue over whether the E
stood for examiner or expert.
because these guys don't have college degrees or Ph.D.'s, it doesn't mean
they don't know what they're talking about," says Cole, who himself
holds a Ph.D. in science and technology studies from Cornell. "It
could be that it's just an experience-based skill that they've acquired,
like an artisanal skill. . . . It's just that you shouldn't call it
the late 1920s, few if any courts doubted that fingerprints qualified as
ironclad scientific evidence. In 1930, for example, an Oklahoma court
cited a scene in Mark Twain's Pudd'nhead
Wilson as proof that fingerprints were a valid tool for criminal
identification. Cole maintains that dissent was squelched by an unspoken
professional code he calls "the occupational norm of unanimity—the
creation of this sense that fingerprint [examination] should not be a
profession of dueling experts on the stand. . . . If you made an
identification, then the whole rest of the profession should back you
Daubert entered the books,
several law professors balked at the dearth of formal studies and lack of
an error scale. They were especially troubled by the use of
"latent" fingerprints, which are recovered with the aid of
chemicals or ultraviolet light. Latent prints are typically faint or
incomplete, and thus tricky to match to an immaculate "rolled"
print taken in a police station. In a series of tests conducted by a
company called Collaborative Testing Service from 1995 to 2001,
misidentification rates for latent prints ranged from 3 to 20 percent.
legal minds called for fingerprints to be subject to the same scientific
inquiry as DNA, the validity of which has been proven time and again in
laboratory studies. "A vote to admit fingerprints [as evidence] is a
rejection of conventional science as the criterion for admission,"
wrote Michael Saks, an Arizona State University law professor, in 1998.
"A vote for science is a vote to exclude fingerprint expert
by such rhetoric, defense lawyers launched a slew of fingerprint
challenges, beginning in 1999. All were curtly rejected. "The
reaction I got was 'You've got to be kidding. How could anyone think there
is any viable challenge here?' " says Michael Burt, a public defender
in San Francisco who tried to exclude fingerprints that implicated a
client named Robert Nawi. "I think the courts felt this was way too
novel to really take seriously."
a Brooklyn case, New York v.
Hyatt, during which the defense tried to use Cole as an expert
witness, the court was coldly dismissive: "To take the crown away
from the heavyweight champ you must decisively out-score or knock him out.
Going 12 rounds will not do. What Dr. Cole has offered here is
interesting, but too lacking in scientific method to even bloody the field
of fingerprint analysis as a generally accepted scientific
Faigman, a professor at the University of California's Hastings College of
Law, is baffled by such logic. He recalls one case, U.S. v. Havvard, in which
the court concluded that fingerprints satisfied Daubert because they'd been used in trials for so long.
"Anybody who has even a minimal amount of scientific training
wouldn't think that the adversarial process satisfies the testing
requirement that Justice Blackmun quoted," says Faigman.
"Testing means clinical testing, proficiency testing, double-blind
testing. . . . The adversarial process is not about empirical
testing—it's a competition."
Plaza, fingerprinting had
weathered nearly two dozen challenges unscathed. But Judge Pollak was less
than impressed with the government's proof of fingerprinting's
infallibility. He noted that in a previous case, U.S.
v. Mitchell, an FBI survey
of state crime labs had "offered scant support for the accuracy of
fingerprint identification. Nine of the 34 responding agencies did not
make an identification in the first instance." He also disapproved of
the paucity of studies he deemed adequately peer reviewed.
was careful to emphasize that he did not wish to discredit fingerprinting
entirely—"putting at naught a century of judicial acquiescence in
fingerprint identification processes would be unwarrantably
heavy-handed." In his January decision, he ruled that fingerprint
examiners could not present "their 'opinion' that a particular latent
print is in fact the print of a particular person." That would have
meant no more climactic courtroom scenes in which an examiner definitively
states that, yes, the print found at the crime scene belongs to the
in his March 14 reversal, Pollak softened his stance considerably. He
still knocked the FBI proficiency tests that supposedly demonstrate the
accuracy of fingerprinting, and he still refuses to characterize
fingerprinting as a science. Nevertheless, he concluded that he was
"not persuaded that the courts should defer admission of testimony on
fingerprinting . . . until academic investigators . . . have made
substantial headway on a verification and validation research
agenda." In other words, the burden lies with fingerprint critics to
back up their doubts.
attorneys are puzzled by the flip-flop, since the original edict merely
put fingerprints on par with other brands of expert testimony. "If a
psychologist testifies, the psychologist has to say, 'It's my opinion
based on a reasonable degree of medical certainty,' " says public
defender Grohs. "And in DNA they have data banks, and they do
probability—they'll say, 'The probability of this being from somebody
else is one in 20 billion,' or whatever. So why is it that fingerprint
experts have been allowed to say, 'This is a match'? "
scientists, of course, were aghast at Pollak's initial ruling, which they
ascribed to the defense team's skewing of evidence against the technique's
reliability. They still question whether Pollak—and other well-educated
judges—may harbor an ingrained bias against fingerprint examiners merely
because they lack Ivy League pedigrees; in his initial opinion, the former
Yale Law School dean noted that "even those who stand at the top of
the fingerprint identification field . . . tend to be skilled
professionals who have learned their craft on the job without any
concomitant advanced academic training. It would thus be a misnomer to
call fingerprinting examiners a 'scientific community' in the Daubert
experts' most venomous attacks, however, have been reserved for Cole, whom
forensic scientists regard as a publicity-seeking dilettante bent on
marketing Suspect Identities.
They relish pointing out that the bookish Cole has zero formal training in
either forensic science or law enforcement. "[Cole's] book is
comprised mostly of historical accounts, related in a manner that, if
anything, demonstrates the superficiality of the author's understanding of
that about which he writes," wrote Andre Moenssens, a law professor
at the University of Missouri at Kansas City, in an essay condemning
Pollak's first opinion as "unwarranted."
is information out there that flies in the face of what [Cole] says,"
adds Joe Polski, secretary of the International Association for
Identification (IAI). "He's just chosen to take the path he
has." The rare mistakes that do occur, he says, are due to human
frailty rather than any problem with the method. To discount the entire
science because of a few foul-ups, then, is akin to dismissing aviation
because a plane crashes, or junking mathematics when an eighth grader
bungles a quadratic equation.
who shrugs off the personal attacks as a substitute for reasoned
arguments, regards that defense with skepticism. "I think that the
fingerprint community did some clever things about managing errors,"
he says. "There was this idea that the error would always be
attributed to the practitioner and not to the method, and therefore the
method is still infallible even if there's an error." In the FBI
survey referred to in Pollak's January opinion, for example, the agent in
charge offered a range of excuses for the nine examiners who failed to
identify the prints, from "inexperience" to "insufficient
time" to "attitude toward survey was not as serious as it should
Pollak's hedge, fingerprint experts are aware that their trade is about to
come under unprecedented scrutiny. Defense bar celebrities Peter Neufeld
and Barry Schleck have called on the National Institute of Justice to fund
scientific studies of the technique, and next month the IAI will hold a
conference at the University of West Virginia to hash out how forensic
scientists should deal with the challenges. Faigman believes the
controversy will compel the Justice Department to "go out and do what
they should have done 100 years ago, which is collect data on the
empirical validity of fingerprint technology. And my guess is that, at
some level, it will be demonstrated to be valid. And it'll probably have
some weaknesses, too."
studies could take years to complete. For people like Robert Hood,
however, the fingerprint debate will have a more immediate payoff. At a
pre-trial hearing in mid January, Grohs asked the court to rule out the
prints. The controversy's big guns were present—Cole traveled to
Colorado to testify for the defense, while the state called Stephen
Meagher, chief of the FBI's fingerprint unit. The judge ruled the evidence
admissible, but a mistrial was declared soon after on unrelated grounds.
For the retrial, Grohs hopes to enlist the aid of James Starrs, a George
Washington University law professor infamous for exhuming the corpses of
Jesse James and Meriwether Lewis; he's also a noted fingerprint skeptic
who has derided the technique as a "miasma."
will be on the lookout for jurors willing to consider the fallibility of
fingerprints—a difficult task, given the number of Americans weaned on Matlock
reruns and Agatha Christie mysteries. "We talked to [the first
trial's jurors] just about fingerprint evidence, and it was hard to get
them to open up," says Grohs. "They'd say, 'Well, if you have a
fingerprint, then he did it.' But when we'd ask why they thought that,
they'd say, 'I don't know, I guess I've seen it on TV, [or] in the
movies.' Does that make it true?"
predisposition to trust fingerprints could theoretically render any
scientific attack moot. Defense experts may attack the technique as
flawed, but jurors long exposed to courtroom dramas might tune out the
criticism. As Arizona State's Saks puts it, if "the government expert
gets up there and puts up his chart and says, 'This point matches this
point, and that point matches that point' . . . then jurors will be very
likely to say, 'Well, that's a match then.' "
the sake of defendants whose freedom hinges on the veracity of some
smudges, Grohs hopes that isn't the case. "Everyone's going to have
to keep fighting, fighting, fighting before we get people to budge,"
she says. "It's kind of hard to overcome 100 years of babble."
Brendan I. Koerner is a Markle Fellow at the New America Foundation.