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Monday, October 21, 2002

BREAKING NEWz you can UzE...
compiled by Jon Stimac


The Utmost Measures: A word in behalf of Subjectivity - THE ATLANTIC ONLINE - Oct., 2002 ...subjective judgment has been maligned for decades, on grounds of capriciousness and unfairness, and because it is "unscientific"...

Fugitive in Man's Death Is Found Killed in Tijuana - THE NEW YORK TIMES - Oct. 13, 2002 ...a fugitive sought for his role in the 1990 killing of a gay man in Queens has been found shot to death in Mexico...

Box of Bullets Being Tested for Fingerprints - THE ROCKY MOUNTAIN NEWS - Oct. 17, 2002 ...a box of ammunition left near the anti-Columbus Day rally is undergoing fingerprint tests, police say...

DIA Gets a Read on Fingerprints - THE ROCKY MOUNTAIN NEWS - Oct. 18, 2002 ...airport rules require that positive identification be made on people using security-clearance cards...

Police ID Man Killed in Hit-and-Run - THE BALTIMORE SUN - Oct. 18, 2002 ...victim was identified through fingerprints...

Police Find Methamphetamine Lab in SMU music Practice Room - THE SAN FRANCISCO CHRONICLE  - Oct. 19, 2002 ...investigators collected several items used in the making of the drug, as well as papers bearing fingerprints...
 

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 latent print examination and science. 
This week we just take a look at an article by John Nielson, former editor of the Journal of Forensic Identification. 

********************
Are you dead? (Part I)

I once processed items recovered from a dentist’s office burglary. The victim had been practicing for a number of years and one item disturbed was a dental journal from the 1940’s. While performing my examination, it was impossible not to observe some of the content. One advertisement touted the healthful benefits of cigarettes—earnestly and (apparently) honestly targeted toward medical professionals. I recall that the general tone of the articles could best be described as quaint and—by today’s standards—primitive. For its time the writing style was acceptable. But scientific understanding and presentation style evolved, and the former style became outdated.

More relevant examples of this principle can be gleaned from the pages of the Journal of Forensic Sciences. Articles from the early issues display a style acceptable for the time but dated today. Even by the mid-seventies, an article on Trace Metal Detection Technique (TMDT) promised the ability to determine make and model of handgun held.[i] It is inconceivable to me that article would today be published “as is.” Times change.

In the mid-1980’s the IAI Publications committee presented a report presenting the results of a survey of the membership and our discussions. Recognizing that times had changed, we proposed that the Identification News be replaced by a periodical that reflected the changes in expectation for a professional/scientific publication. I recall one graphic we used in the formal presentation to the membership: the cover of a 1970’s News issue featured a chimpanzee dressed in a police officer’s uniform with a “suitable” caption.[ii] It may have been suitable for its time, but hardly presented a professional image by the mid-1980’s. Times had changed. And they continue to change, whether we want them to or not. Simply willing change to stop is as effective as standing in front of a speeding freight train and willing that it should stop—the train wins all ties.

One principle of our legal system is that opposing counsel doesn’t waste time challenging the inconsequential. The degree of damage a fact creates can be measured by either a) the ferocity of attack against it or, if unassailable, b) the willingness to stipulate (so as to not showcase it to the trier of fact) or to enter a plea. One of the reasons fingerprint testimony at trial is comparatively rare is that it is so devastating if prior legitimate access is not a defense. Only foolhardy proceed to trial in the face of irrefutable proof of presence, assuming a correct finding by the fingerprint examiner.

For that reason, friction ridge identification has become a logical target in the steady expansion of Daubert challenges. One of the first “established” forensic disciplines to be challenged was document examination. Once its vulnerability was established, fertile minds moved on. To date, not one Daubert challenge of fingerprints has been successful. But, I submit, this is not because of Divine Right but rather that the arguments have not yet sufficiently evolved and a similarly minded judge/panel has not yet heard them.

The single Daubert “loss”[iii] was reversed. While the prosecution brief laid out a number of compelling arguments for the continued recognition of fingerprints, it didn’t directly answer all of the Judge’s objections. Also of note, it focused on what the FBI does, leaving room to concede that the arguments may not be valid for the discipline in general.

One response to Judge Pollak’s original decision, declaring fingerprint opinion testimony to be inadmissible was “Daubert doesn’t affect us, we’re a Frye state.” [For state level cases.] That attitude is roughly akin to laying one’s head on the rail before the on-coming train and stating confidently, “it can’t hurt me, I’m not governed by railway law.” Minds brighter and more capable than yours and mine are finding ways to make the non-introducible and “irrelevant” relevant and introducible. Case law evolves precisely because previously unarticulated rights and principles win the day.

It is inconceivable that challenges will not increase in frequency, complexity, and sophistication.  The stakes are too high for opposing counsel: “Someone stole my hands” is not an adequate defense. If the fingerprint idents go away, the case goes away. In the 1970’s challenges to chain-of-custody were common, until it was established that almost every agency was in compliance almost all the time. Agencies and examiners must be prepared to make the same commitment to “tighten up” identification unit practice.



References:

[i]
Stevens and Messler, “Trace metal detection technique (TMDT): a report outlining a procedure for photographing results in color, and some factors influencing the results in controlled laboratory tests,” J. Forensic Sciences, July 1974, p. 496

[ii] Identification News, Vol. XXII, No. 3, March 1972.

[iii] U.S. v. Llera Plaza , et al., Cr. No. 98-362-10, 11, 12 (E.D. Pa.). See documents at www.onin.com/fp/

 

NOTE: Part II of this article appears in the Detail 81.

Next week, will play it by ear!

If you have anything you would like to submit to the Weekly Detail, drop me a note!


The informal CLPEX.com message board is available for banter about this week's Detail:
http://www.clpex.com/phpBB/viewforum.php?f=2
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 Newsroom

Updated the Detail Archives
 

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