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Monday, September 9, 2002

BREAKING NEWz you can UzE...
by Jon Stimac


Four to Appear in Court for Alleged Plots Against U.S. Targets in Europe THE SAN FRANCISCO CHRONICLE - Sep. 1, 2002  ...fingerprints were found at four sites where passports were stolen in the Netherlands in 1997 and 1999, according to the arrest warrants...

2nd Arrest in Slayings Of Prince George's Deputies -THE WASHINGTON POST - Sept. 4, 2002  ...police say suspect aided the shooter by wiping fingerprints from the alleged weapon...

Psychiatrist Points to Evidence Showing Yosemite Killer Was SaneTHE SAN FRANCISCO CHRONICLE - Sept. 5, 2002 ...expert listed dozens of examples that showed Yosemite killer was sane, including wiping his fingerprints from evidence...

Anti-Terror Screening Draws Fire THE LOS ANGELES TIMES - Sept. 5, 2002  ...tracking system that will require fingerprinting visitors to the U.S. is prompting an angry outpouring from Muslim nations...

The IAI Website Has a New Look!
Check out the fast-loading pages and new content of the IAI's website.

NIJ Crime Laboratory Improvement Grants (from the IAI Monthly Update by Joe Polski)  Five million dollars of NIJ grant assistance is now available under the Crime Laboratory Improvement Program (CLIP), funded by the Paul Coverdell/National Forensic Science Improvement Act.  That is the funding the Consortium of Forensic Science Organizations (CFSO) has been working on for the past several years.  Although this amount is a small portion of what we hoped to get appropriated, it is a good start and a building block for the future.  If your agency is interested in applying for some of these funds, please visit the website listed below for more information and an application form.  The program is administered by the National Institute of Justice (NIJ) as the granting agency.  http://www.ojp.usdoj.gov/nij/nfsia/html

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 finished up our ten Daubert Concepts that we compiled into a comprehensive Daubert Card to be used however you see fit.  The card is continually updated, so please submit any questions  that address concepts we have not already explored.  This week, Glenn Langenburg brings us the first of a three-part series, "Defending Against the Critic's Curse."  We start with Dr. Simon Cole, next week we will look at Professor James Starrs, and we will finish up with Dr. David Stoney.  The entire three-part article will end up being archived in the "Legal" section of the "Articles" page of this site, as well as in the Archive section of the Weekly Detail.  If you normally print each Detail, you may wish to wait for the entire article together, as it will be black text on a white background instead of the white on black format of this page.


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Defending Against the Critic's Curse
Chapter 1, Dr. Simon Cole

Glenn Langenburg, Latent Print Examiner, Minnesota Bureau of Criminal Apprehension


I.  INTRODUCTION

Kasey Wertheim and a few others have asked if I would put into writing some of the issues I discussed during my presentation at the ABFDE (American Board of Forensic Document Examiners) entitled “Defense Against the Dark Arts: Defending Against the Critic’s Curse”.  I have agreed to do so and will attempt to address the three most vocal critics: Dr. Simon Cole, Professor James Starrs, and Dr. David Stoney.  The purpose of these writings, as was the purpose of the original presentation, was not an attack on these three individuals, but rather an objective (as possible) examination of who these individuals are, what are their major arguments and tactics, and then most importantly how to defend against their attacks and where to obtain the information to support your defense against their “curses”.  This is hardly all encompassing, and any additional information that you can provide would be most helpful.  P lease email any comments that you may have to me at glenn.langenburg@state.mn.us.  Any anonymous comments that you wish to make, please send to Kasey and he will forward them to me without any identifiers.  Please be critical if you see an error.

The first of these writings is focused on Dr. Simon Cole.  I first had the opportunity to see Dr. Cole present at DePaul University at a Daubert symposium in Chicago, Illinois on April 15, 2002.  I will be brief in my assessment of that afternoon: the fingerprint information, as presented by a latent print examiner of some experience, was not presented particularly well, was not articulated well, and did not address current and topical research that support our science and methodology.  I don’t question that examiner’s ability to perform comparisons, nor do I question that examiner’s good intentions.  However this is a new era for this profession and stagnation cannot be tolerated.  A fundamental aspect of this profession is an understanding of the science, the supporting body of knowledge, and the articulation of it.  It has been both bane and blessing that the critics and Daubert challenges have appeared, as it has raised the bar considerably on the depth of knowledge examiners must possess.  The counter arguments of the DePaul Symposium, as presented by Dr.’s Cole and Stoney, were presented very well and effectively whipped the attorneys and skeptics present into a frenzy.  This was embarrassing to me and other latent print examiners and forensic document examiners that attended the symposium.  This became the driving impetus behind my understanding of the critics.  How should I properly prepare against them and what to have ready should they come to the “Land of 10,000 Lakes (and Jesse Ventura)” to present or testify.

This entire article regarding Dr. Simon Cole can be summarized very quickly: read a transcript of Cole’s testimony from The People of the State of New York vs. James Hyatt (Frye hearing, Ind. No. 8852/00, NY 2001).  In this hearing, the prosecutor, Caryn Stepner, does a fantastic job of analyzing and attacking Cole’s statements.  In her cross-examination, she revisited criticisms that Justice Joyner raised during U.S. v. Byron Mitchell, regarding the lack of data or research Cole did to support his theories.  A good example is at the end of a grueling cross-examination, Cole states, with respect to his theories, “My theory does not purport to be science.  I haven’t tested it.  Through experiment, it purports to be scholarship...it’s not a scientific theory, it’s an opinion based on scholarly research.”  Every prosecutor that will question Cole as a hired defense witness will want a copy of Hyatt. A .pdf copy can be found at www.onin.com

II. BACKGROUND

Dr. Simon Cole has a Baccalaureate of Arts (BA) degree from Princeton University in History.  He earned a Doctorate of Philosophy (PhD) from Cornell University in Science and Technology Studies.  This is a history and sociology degree.  Do not be fooled by the title “Science and Technology”.  This program focuses on the history of science and technology and the social implications of such (1).

Dr. Cole is a historian. He is not a scientist.  Even he will readily admit: “I view myself primarily as a sociologist and historian of science and technology” (2). 

His unpublished thesis studied the history of fingerprint science and technology, and the impact on society and jurisprudence (3).  This thesis material was the basis, as well as additional methods of identification, for his published book “Suspect Identities—A History of Fingerprinting and Criminal Identification” (4).

Dr. Cole’s main attacks are as follows:
 

1)      “[Fingerprinting/Fingerprint identification] does not meet a reasonable definition of being a scientific field or scientific conclusion” (5)
 

2)      Reliability of examiners is unknown and potentially quite low (6)
 

3)      Historical/anecdotal attack and support for his arguments
 

4)      Examiners maintain a “united front” by not openly disagreeing with one another (7)
 

 

Each attack is discussed below, accompanied by a possible defense.  I will not go into detail on our stance on each of these issues.  I will leave that to the issues of the “Daubert card” as proposed by Scarborough and York. 

III.  ISSUE 1
 

“[Fingerprinting/Fingerprint identification] does not meet a reasonable definition of being a scientific field or scientific conclusion”
 

Attack:
 

This issue has been raised by Cole because “pure”/“real” scientists don’t accept fingerprint science as true science (8).  “Real” scientists such as Prof. Starrs and Dr. Stoney and legal scholars such as Michael Saks and David Faigman agree, so there’s his proof.  And the primary research and studies done in our field are within our field, and not addressed by academic and research scientists (at a University for example).  Lastly he also says that it is not scientific because of the falsifiability principle (9).  Because one cannot prove an examiner wrong, that is not scientific, nor based on scientific method.
 

Defense:
 

How many scientists does it take to make a consensus?  Supporting our science are numerous scientists, both of academic and forensic background: Dr. Babbler, Prof. Moenssens, Donald Ziesig, Dr. Bruce Budowle, etc.  Furthermore the wealth of statistical studies and biometric application research is more often than not initiated by the academic and private industry sectors.  Clearly Simon Cole does not have his finger on the proverbial pulse of academia and the scientific community.  Just because he cannot walk onto a generic University campus and find a scientist familiar with fingerprint science does not invalidate the science.  I would argue that I had not heard of “Science and Technology Studies” prior to his appearance on the scene and not all universities have such a program.  Does that invalidate his degree?
 

IV.  ISSUE 2
 

Reliability of examiners is unknown and potentially quite low
 

Attack:
 

A favorite of Cole’s is to address the 1995 Collaborative Testing Services (CTS) exams (10).  He will then often segue into anecdotes of famous erroneous identifications (Caldwell, McKie, etc.).
 

      Defense:
 

CTS tests are not controlled experiments, nor do they reflect actual casework.  When Dr. Cole reports an error rate from a CTS exam, he should be promptly asked were the errors: erroneous identifications, clerical errors, or misses? How many actual trained examiners took the exam?  He will not know.  Neither do we.  He will also bring up the fact that blind proficiency testing is not done routinely in our field.  Some departments do this and have it well documented.  Some departments don’t.  In my opinion they should.  This type of proficiency testing does imitate real case work and can be done in conjunction with CTS testing by those labs which must take CTS exams as per the American Society of Crime Laboratory Directors (ASCLD) requirements. 
 

V.  ISSUE 3

Historical/anecdotal attack
 

Attack:
 

As a historian, and friend of Professor Starrs, Dr. Cole has excellent access to historical records, transcripts, and other resources.  A very common theme in his attack is to make a statement and then support it with an anecdote or two.  What he does not do is make a statement and then support it with: “…and to support that statement, the data from this research that I conducted is as follows…”
 

Defense:
 

The best thing here is to know what’s coming.  He is likely to reference any of the following historical cases:

People vs. Jennings (96 N.E. 1077, Illinois, 1910)

People vs. Crispi (New York, 1911)

U.S. v. Parks (CR-91-358-JSL) (A very important case we should all know about; though pre-Daubert the fingerprint evidence was ruled not admissible on very Daubert-like reliability issues)

State v. Caldwell (322 N.W. 2d 574, Minnesota, 1982)

David Abury/Shirlie McKie case of Scotland, U.K.
 

With respect to his theories and his statements, he simply has not conducted any statistical research to back up his claims; it has been scholarly research thus far.  This was a most effective tactic used throughout Hyatt and clearly recognized by Justice Michael Brennan in his decision (11).
 

VI.  ISSUE 4

Examiners maintain a “united front” by not openly disagreeing with one another.
 

Attack:
 

Early criminalists (Kuhne, Gribben, et. al.)—from writings over 80 years ago—wrote that latent print examiners must achieve a similar opinion when examining prints (12).  This created an atmosphere of infallibility and any deviation from the norm was an examiner’s error and that examiner would be sacrificed for the good of the profession.  Furthermore, disagreements between examiners’ opinions are settled “behind closed doors” rather than publicly aired (i.e. in court) (13).

 

Defense:
 

This is a very unfair painting of the scientific process through which we form our conclusions.  Consistency is not only expected, it is demanded by our methodology.  Of course examiners will all agree, if they are adhering to the methodology: it either matches, doesn’t match, or one cannot tell either way.  Rarely is the problem, other than the McKie case, that examiners maintain their opinion of an erroneous identification. 

More commonly, one examiner will effect an identification and another examiner will not have observed sufficient reliable detail in agreement to also effect that identification.  The second examiner does not think the prints don’t match, he or she is just not sure they do match to the exclusion of all other sources.  What is particularly lacking in Cole’s assessment of this, is affording examiners the luxury of any other scientific process—the opportunity to reassess one’s conclusions.  If an examiner points out detail that I did not observe or can show me further evidence to convince me of their conclusions, how is this any different than any other scientific process?  If I change my opinion based on new evidence (i.e. ridge detail) I failed to notice before, is this the result of a conspiratorial clandestine caucus?  I submit that in fact, this is SCIENTIC METHOD at work.

Lastly, the most obvious defense here is that it has been the examiners of talent and courage that spot the erroneous identifications that have occurred (14).  These examiners have not maintained any sort of “Code of Silence” with the phantom risk of ostracizing themselves and exposing fallibility in this profession.
 

SOURCES

(1)     An example of actual courses offered in S&T studies at Cornell include:Visualization and Discourse in Science; Enlightened Science; The Sociology of Science; Topics in the History of Women in Science; Biotechnology and Law; Law, Science and Public Values, etc.

(2)     The People of the State of New York vs. James Hyatt, Ind. No. 8852-00, Frye Hearing, NY 2001, p. 11.

(3)     Ibid. p. 5-6.

(4)     Cole, Simon.  Suspect Identities.  2001.

(5)     Hyatt, p.11, 18.

(6)     Hyatt, p.12-18.

(7)     U.S. v.Byron Mitchell, No. 96-407, PA 1999, Day 5 of Daubert hearing, p. 9-13.

(8)     Hyatt, p.18, 23.

(9)     Mitchell, p.21.

(10)  Hyatt, p.12-18 and DePaul University Daubert Symposium notes, Chicago, IL, April 15, 2002.

(11)  Hyatt, Decision; Conclusions of Law, p. 3.

(12)  Cole, Simon.  “Latent Fingerprinting Evidence and Expert Knowledge”, Fingerprint Whorld, Vol. 28, no. 107, Jan. 2002, p. 37.

(13)  Ibid. p. 38.

(14)  Wertheim and Grieve (Asbury/McKie case); Hyatt p.20-21.

 



The informal CLPEX.com message board is available for banter about the Detail, and the onin.com forum (http://onin.com/fp/wwwbd/) is also available for more formal latent print-related discussions.

 

UPDATES on CLPEX.com this week...


Updated the Daubert Training page.

Updated the Daubert Card page

Working on updating past RSW pages
 

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