T H E
W E E K L Y D E
T A I L
Welcome to the first "Detail," a weekly e-mail
newsletter that greets you every Monday morning. The purpose of the Detail
is three-fold: to help keep
you informed of the current state of affairs in the latent print community, to
provide an avenue to circulate feedback
received FROM you, the members of our profession, TO you, and to announce
important events as they happen in our field.
Since this is the first Detail, I think it is
appropriate to dive into one of the hottest issues currently raging around us.
These are certainly tumultuous times in the latent print discipline, but
I believe as a result it will make us stronger and improve our science and its
public perception. The 1993 Daubert
decision addresses the admissibility of scientific evidence in Federal court,
but also applies to other jurisdictions that adopt it.
The decision gives 4 issues that the trial judge can use to insure that
scientific evidence presented is relevant and reliable.
Traditionally, these issues are addressed in a pre-trial motion, and
testimony in a subsequent hearing (if granted by the judge) is given outside the
presence of the jury. However, in
several recent trials, these issues were raised during voir dire, and in one
case, on cross-examination! And
many jurisdictions in which Daubert-type issues have been raised have not even
officially adopted Daubert as the standard!
In other words, just because you are not a "Daubert State"
doesn't mean you don't have to worry about this subject.
Daubert has already changed the way latent print
examiners should be testifying. A
Daubert challenge to the science of fingerprints could launch the direction of
YOUR next testimony in a completely different direction. Examiners today need to be prepared to address several
specific Daubert issues with the same calmness and security used to address
every-day issues on the witness stand. The
reason is because these issues now ARE the everyday issues, and if you don't
know them, it is just a matter of time before you see them.
To brush up on what Daubert is and get the specifics on each
case, visit Ed German's excellent page on this subject.
If you have never heard the term, "Daubert," start with the
link at the top: "What is a Daubert hearing".
To go straight to the cases, scroll down the page: http://onin.com/fp/daubert_links.html
Sixteen cases to date have been decided, all in favor of the science of
fingerprints. More links to Daubert
issues are located at the newest site for latent print examiners, www.clpex.com.
Go to the "Library" and scroll down to the "Legal Issues" section.
If YOU want to be the one to break the winning streak, don't worry about
knowing this information. If you
don't want to be the weakest link then be prepared to address these issues.
What is the error rate of fingerprint identification?
If you answer, "uhhh... um...,"
then you ARE the weakest link. Goodbye.
In order to fully address this issue, you must decide
which error rate you are going to address.
Two types of error are involved: PRACTITIONER error and the error of the
SCIENCE of fingerprints. The fact
is, nobody knows exactly how many comparisons have been done and how many people
have made mistakes, so you can't answer that issue. Of course the error rate for the SCIENCE itself is zero.
The way to answer this question on the stand might
sound something like: If by error
you mean HUMAN error, then I would answer that there is no way for me to know,
since I do not have detailed knowledge of casework results from departments
throughout the country. However, if
by error you mean the error of the science itself, then my answer is definitely
If follow up questions are asked, you can explain:
There are only three conclusions a latent print examiner can come to when
comparing two prints: Identification, Elimination, or Insufficient detail to
determine. (Explain each of these) Insufficient
doesn't apply, because you are asking about the error rate involving
identification. The fact is, any
two prints "of value" either A: were made by the same source, or B:
they were not. There is no
probability associated with that fact. Therefore,
the science allows for only one correct answer, and unless the examiner makes a
mistake, it WILL be the correct answer. That
is what I mean when I say the error rate for the science of fingerprints IS
zero. (the little emphasis on "is", as you nod your head once to the
jury, doesn't show up in the transcript, but it sure helps get the jury to nod
back in agreement!!)
Of course, you could follow this approach with a classic
example of the difference between practitioner error and error of the science.
Steve Meagher uses the example of mathematics: Just because a
mathematician gives the incorrect answer to a problem, does not invalidate the
science of mathematics. Joe Polski,
of the IAI, recently used the example of pilot error causing an airplane crash. This accident doesn't mean the scientific principles that
explain flight are flawed. There
could be hundreds of examples given where practitioner error can be separated
from the error of its respective science.
Next week another of the Daubert issues will be
addressed. After each issue is
discussed, we will look at how this debate is affecting us in areas other than
the legal arena.
If you have questions or comments on this weeks issue,
please visit the Discussion forum. (I apologize in
advance for the advertisements... that is part of using "free" message
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Until next Monday morning, don't work too hard or too little.