“[Fingerprinting/Fingerprint identification] does not meet a reasonable
definition of being a scientific field or scientific conclusion” (5)
Reliability of examiners is unknown and potentially quite low (6)
Historical/anecdotal attack and support for his arguments
Examiners maintain a “united front” by not openly disagreeing with one
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
identification] does not meet a reasonable definition of being a scientific
field or scientific conclusion”
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.
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
IV. ISSUE 2
Reliability of examiners is
unknown and potentially quite low
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,
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)
V. ISSUE 3
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…”
The best thing here is to know
what’s coming. He is likely to reference any of the following historical cases:
Jennings (96 N.E. 1077, Illinois, 1910)
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)
Caldwell (322 N.W. 2d 574, Minnesota, 1982)
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.
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).
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
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
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.
The People of the State of New
York vs. James Hyatt, Ind. No.
8852-00, Frye Hearing, NY 2001, p. 11.
Cole, Simon. Suspect Identities. 2001.
Hyatt, p.11, 18.
U.S. v.Byron Mitchell, No.
96-407, PA 1999, Day 5 of Daubert hearing, p. 9-13.
Hyatt, p.18, 23.
Hyatt, p.12-18 and DePaul
University Daubert Symposium notes, Chicago, IL, April 15, 2002.
Hyatt, Decision; Conclusions of
Law, p. 3.
Cole, Simon. “Latent
Fingerprinting Evidence and Expert Knowledge”, Fingerprint Whorld, Vol.
28, no. 107, Jan. 2002, p. 37.
Ibid. p. 38.
Wertheim and Grieve
(Asbury/McKie case); Hyatt p.20-21.
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