T  H  E      D  E  T  A  I  L

The Detail Archives

Discuss This Issue

Subscribe to The Detail

 

Monday, February 4, 2002

 

BREAKING NEWz you can UzE...

Plaza: Gov. Memo in Support of the Motion for Reconsideration  Government lays it all out.

It's BidNow week!  Check out this great vingage fingerprint kit on Ebay!

Dave Charlton's site has moved to
http://www.david.charlton97.btinternet.co.uk/
And his e-mail address is now:
David.Charlton97@btopenworld.com

 

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 looked at David Ashbaugh's thoughts on the definitions of science.  If you didn't get a chance to read through these, check out the Detail Archives.  Also, there has been some excellent discussion at the Onin forum on this topic, under "From FP Experts to FP Experts" Topic: "The science of fingerprints: an exact science?"

The week before last, the Government filed a motion for reconsideration in the Plaza case.  Last week, the memorandum in support of this motion for reconsideration was filed.  The Plaza page of this site was updated the same day I received it.  As expected, this supporting memorandum re-enforces the Daubert issues addressed in the first series of Details and also adds a few new concepts.

Obviously, the Government submitted that Judge Pollak's ruling was at odds with Rule 702 of the Federal Rules of Evidence, and should be reconsidered and reversed.  Much of the supporting memo documents the reliability of the ACE-V methodology, as used by the FBI.  The Government went back to Daubert v. Merrell Dow in stating that the reliability requirement of expert opinion testimony is met if based on "good grounds," and that "...fingerprint examination as performed by the FBI is the paradigmatic example of 'good grounds' on which an expert may rely".

 

**********************************************************

The Daubert issues, amplified by the Third Circuit to eight distinct guidelines, were used as a template to direct the discussion of the methodology of ACE-V.  Below is listed each guideline, followed by the basic principles of support offered by the Government.

 

1:  Whether the method consists of a testable hypothesis

A. Proficiency Testing of examiners
B. ACE-V is not subjective; it's based on scientific method.
C. This method provides "good grounds" for an opinion, and is admissible under Rule 702.

 

2:  Whether the method has been subject to peer review

A. Peer review also consists of general scrutiny of the scientific community
B. Fingerprint analysis has long been subject to this scrutiny
C. Peers oversee test each other's work in the field on a daily basis.
D. Over 350 reference works (listed in Mitchell, Ex. 7-1 & 7-2) demonstrate review
E. 2000 Advisory Committee Notes: expert may be qualified on the basis of experience

 

3:  The known or potential rate of error

A. Supreme court clarifies in Daubert: error rate = methodology, not practitioner.
B. Error in the application of the method may be exposed by testimony of contrary experts
C. No erroneous identification has ever been offered in court by an FBI examiner
D. None of the 34 agencies surveyed ruled out Mitchell as the source of the latent prints
E. Even a "discernible" rate of practitioner error cannot preclude expert opinion testimony

 

4:  The existence and maintenance of standards controlling the techniques operation

A. The focus must be on the FBI's ACE-V method, not that different standards may exist in other jurisdictions.
B. The conclusion that subjective evaluation equals no standards is erroneous, and vitiates the very nature of expert opinion testimony
C. "subjective" is NOT synonymous with "impressionistic" or "speculative."  
D. Virtually all expert testimony is ultimately subjective, otherwise it would not be an opinion!
E. ACE-V uses a describable set of standards.
F. Handwriting is admitted, even though it is unique but lacks "permanence"
G. A physicians' diagnoses is admissible, even though the assessment can never be objectively tested or peer reviewed.
H. "A psychiatrist may testify to a person's mental state, even though none presumes to know for a fact the workings of the human mind."
I. Kumho: "no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience."

 

5:  Whether the method is generally accepted

A. Fingerprint opinion evidence is one of the classic examples of a generally accepted discipline

 

6:  The relationship of the technique to methods which have been established to be reliable

A. ACE-V is the "preeminent and most widely used" fingerprint examination method, and "has been established as reliable on countless occasions."

 

7:  The qualifications of the expert witness testifying based on the methodology

A. Training and Certification are not the only factors in qualifying an expert witness.
B. Details of the FBI's Training and Certification program were given
C. Annual proficiency testing demonstrates the reliability of an expert's work

 

8: The non-judicial uses to which the method has been put

A. Dr. Bruce Budowle's Mitchell testimony: smart cards, identity computer locks, paternity testing laboratory identification, driver' licenses, other identity cards worldwide
B. Disaster victim identification

********************************************************************

 

From the Governments conclusion:  ACE-V easily satisfies the Daubert factors.  It would be an abuse of discretion for this Court to exclude the opinion testimony of FBI fingerprint examiners.  "For nearly 100 years, courts have accordingly, with unanimity, welcomed the opinions of fingerprint examiners..."  "This Court's opinion represents a solitary break with these decades of precedent."  Fingerprint evidence "is not shaky; it rests on the scientific truths of uniqueness and permanence of friction ridges and their arrangements and on a solid foundation of empirical research and extensive experience.  The opinion testimony should be admitted."

The original Rule 702 Advisory Committee Notes: "There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." (Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952))  The opinions of latent print examiners rest on a clear ACE-V methodology, and are obviously helpful to an untrained jury.

The Government was also very clear on the consequences of this ruling, "if carried to its logical conclusion."  ..."the court's reasoning would virtually eliminate any expert opinion on the myriad of subjects on which subjective expert opinion has always been welcomed" in court.  They strengthened this standpoint later in the memo: "To say that an expert cannot express a subjective opinion which rests on his or her expertise and training would be to write Rule 702 out of the Federal Rules of Evidence."  (It should be followed by !!!  :)   Here's another quote of the week: "If experts were limited only to providing testimony regarding which there is empirical proof, there would be no need for expert opinions at all. (!!!)

Maybe by next week we will have the Court's response to this memorandum in support of the Government's motion for reconsideration of the ruling to exclude fingerprint opinion testimony.  Man, that's a mouth-full.  :)

As always, the Detail chat board is available for informal banter about the Detail, or other latent print matters.  The Plaza page will be updated, as appropriate.

 

UPDATES on CLPEX.com this week...

Updated the Plaza page and created a Mitchell page.

 

Feel free to pass the link to The Detail along to other examiners. This is a free service FOR latent print examiners, BY latent print examiners. There are no copyrights on The Detail, and the website is open for all to visit.

If you have not yet signed up to receive the Weekly Detail in YOUR e-mail inbox, go ahead and join the list now so you don't miss out!

Until next Monday morning, don't work too hard or too little.
Have a GREAT week!

 

The Detail Archives

Discuss This Issue

Subscribe to The Detail