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.
we looked at a recent appellate court ruling from Florida regarding the digital
enhancement of latent print images. This week, in Wisconsin, a group of 22
examiners gathered together to discuss the applied science behind what we do,
the fundamental principles which allow us to apply this science, the methodology
and philosophy of that science, and the Daubert principles we are finding
ourselves challenged with on a daily basis. As with every Ridgeology
Science Workshop, we discussed how horrible it would be to be faced with a
courtroom challenge and not be able to address these principles in an articulate
way. We reviewed the most simple way to cover each of the issues we are
being challenged on today. To see comments about the workshop by those
attendees who offered feedback, see the RSW15 page (of the CLPEX.com Training
section under "Past Courses"). On the first day of class last week, I
received an e-mail from a student I had in a Ridgeology Science Workshop about a
year ago who, among other things, related the following:
… “I am not sure if I told you or not but I am going to do
a Daubert Hearing on a rape case that I ID’d. It is with a judge that will
definitely give me a challenge. I am looking forward to it…”
I know this examiner... and I know he realizes the importance of success in this
hearing. He has been studying the Daubert concepts, knows the foundation
of his science, and he feels confident to address this challenge
knowing that failure is not an option. As it has been said before, the
first examiner to lose a challenge will surely go down in fingerprint history!
:) But he is confident in his ability to address these issues and prevail
under what he knows will be tremendous pressure from the defense attorney,
apparently the judge, and possibly defense witnesses who are critical of
fingerprint examination. He is also confident under the tremendous
pressure from the fingerprint community toward success at all costs.
John Nielson's question to you this morning is this: Do you have that
The State of Ship
“Red sky in the morning, sailor take warning. Red sky at night, sailor’s
For centuries, sailors used this adage to ensure their survival. In the age
of wooden ships held together by soft iron spikes and wooden pegs, getting out
of the way of dangerous weather was the only sure way to see tomorrow.
It’s my understanding that the saying is rooted in sound meteorological
principles. But sailors of old didn’t require a Ph.D. in meteorology or have to
know the error rate of their method to the third decimal point to invoke it. All
they needed to do was to look, to observe, to ponder, and to understand the
In the mid-1970’s I remember pondering and extrapolating population trends. They
say that demographically, the Boomer generation looks like a snake that
swallowed a pig—a huge bulge passing through from one end of the snake to the
other. Assuming nearly static population growth, it didn’t take an economics
degree to see a problem ahead. Social Security started out with the “very few”
being sustained by the “very many.” But one day, there would be more “takes”
than “puts”—unless people were willing to surrender ¼ of their paycheck for
Social Security alone.
Concurrent with this revelation I was taking one of those “enrichment” courses
intended to produce a more well rounded person—I think it was Marriage and
Family Interaction. At some point in the class it seemed appropriate (only to
me) to state, “In its present form Social Security cannot last for our
lifetime.” I remember almost every set of eyes looking at me with a mix of, “In
what language are you addressing me?” and “On what planet do you reside? Social
Security will always be around.” Only the instructor’s quick intervention,
changing the subject, saved me from absolute visual ridicule.
Of course, I didn’t account for at least one FICA tax increase and the general
population growth. Not publicly discussed until the 1990’s, the government now
predicts insolvency around 2035.
I don’t expect a Nobel nomination for economics. I offer it as an example to
show you that you too can be prescient; all you have to do is to read the signs.
Red sky in the morning…
What does this have to do with Ridgeology? Read the signs. The morning sky is
More than 40 Daubert hearings have been documented to date. Recently, Pat
Wertheim recounted the defense strategy of demanding a Daubert hearing in
an effort to keep evidence of past crimes out of a sentencing hearing by
challenging the validity of 10 print-to-10 print idents. Only the aggressive,
proactive actions of the prosecutor caused the defense to abort their strategy
in the middle of the proceedings. As Pat observed,
I have a sneaky suspicion that had the prosecutor not
stood her ground and insisted on a separate qualified Daubert witness in
a separate hearing, the defense would have indeed made a big issue out of it.
But by playing her cards the way she did, the prosecutor forced the defense to
either run the bluff or fold her hand. [Detail # 112, www.clpex.com ]
I have written previously,
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. [Are You Dead?, JFI, 53:1]
Red sky in the morning…
Get ready to put on your looks of incredulity, distain, and ridicule. Being a
slow learner, I’m about to have another “Marriage and Family” moment. At the
absolute limit, it will be no more than three years before a full-blown
Daubert-style hearing is held in this state. And I think that is wildly
optimistic. A credible “home grown” attack could occur in as little as 3 to
6 months. If an outside consultant is retained, it could happen tomorrow—as you
have probably heard, attorneys go to continuing education courses, too, and
learn about the Mitchell case. Perhaps is has already happened and I’m
not aware of it. We may be a Frye state and it may not be called a
Daubert hearing, but taking the stand will create enough openings to allow
opposing counsel to “Daubertize” you.
And why shouldn’t it happen?
…challenges will [only] 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. … [Ibid]
Are you ready? Tempestuous seas are brewing. They will require advanced planning
and action—and charting a careful course, lest you end up on the shoals breaking
There are a number of probable consequences that result from the coming storm:
1) Some Identification units might close down if they
are discredited. If courts routinely reject testimony, the DA will not be
motivated to enter the regatta if (s)he must bail water from a leaky boat that
is usually disqualified or finishes last.
Kasey Wertheim observed,
Daubert concepts are being addressed during voir dire,
before the evidence in the case is even admitted. In this situation, you are
being cross-examined on your qualifications, and if you can't articulate the
fundamentals of your “alleged” science, as it would be put, then you run a great
risk of embarrassment, and possibly the exclusion of your testimony of opinion
in the case. Defense attorneys have recognized the potential for a successful
attack, and the attack surrounds the Daubert concepts. [Detail # 54,
2) The overhead
involved in maintaining a latent unit will dramatically increase for some and
will increase for almost everyone else. Since this requires money,
administrators will need to clearly see the off-setting benefits for the costs
incurred—or they might consider closing the unit. Every aspect will be
involved, not just examination requirements: proficiency testing, validation,
documentation and more.
3) Speaking of documentation, a tactic advocated at
this year’s Wisconsin State Public Defenders Conference is to demand the latent
examiner’s notes as part of discovery. If you respond by thinking, “OK, I just
won’t take notes then,” that idea is an absolute non-starter. And if your notes
are fragmentary you’ll be not much better off. How do you think a traffic
reconstruction expert would fare in court with the following notes: “5th
and Main. Skid marks. Windshield broken. Passenger dead. Driver charged.
No sketches.” As objectively as you can, look at your notes; do they share more
in common with the above example than not?
4) Court preparation will have to increase, at least
for several years while the initial burst of challenges occur. Most of you
probably don’t remember policing in the 1970’s—some of you don’t even
remember the 70’s. But it was a time when practically every case that was
going “all the way” included a chain-of-custody hearing. Chain had been recently
highlighted in court decisions as a soft underbelly of policing. [And,
pragmatically, why not? Until that time, it had not been a serious issue in
court and therefore probably not considered worthy of the scarce resources
needed to reform policies and procedures.] When it became evident that
departments were complying with judicial standards, the furor died down. So, I
believe will be challenges to friction ridge impressions.
President Harry Truman said, “If you can’t stand the heat, get out of the
kitchen.” Once you assume the mantle of latent print examiner, you’d better be
prepared to defend the theory and practice of the science. Some attempt to
bifurcate the practitioner from the science, suggesting that the examiner can be
discredited without harm to the science. But when you are on the stand you
are the science. The court will evaluate the reliability of the science
based on your testimony.
What, if anything, can be done?
1) Globally, we need scholars to defend and extend
understanding of the science. Chemistry, statistics, genetics, physiology of
friction ridge development, and forensic science are all needed. Like it or not,
alphabet soup equals credibility. The need is not necessarily local; around the
country there might be a handful of persons with Ph.D.s, educated in their
specialty and also committed to friction skin identification. They would be the
academic face of the science, filling in gaps in knowledge and responding to
intellectual and legal challenges. I’m not suggesting simply accumulating
degrees and degreed representatives for their own sake. Education broadens and
deepens knowledge and understanding; it sharpens intellectual nimbleness,
enhancing the ability to wrestle with intellectual problems, to propose
solutions, test them, and to articulate the result.
2) Globally, the NIJ grant to study fingerprint
probability needs to happen soon. A complex, multi-variable model is required in
order to move closer to accurate statistical calculations. I do not expect the
upcoming study to entirely achieve that goal, but we need to move incrementally
3) We must require adequate background and training
for those entering the field. This includes both academic preparation and a
meaningful training curriculum with enforced examination standards. The days of
casual, almost accidental entry into an Ident position are drawing to a close.
Some who might prove to be extremely gifted “technicians” may be excluded, but
it is the emerging reality.
4) Locally, we need to demonstrate—and be able to
articulate—the reliability of our methods and techniques, and our use of them.
Have you adopted SWGFAST guidelines? They will be criticized and ridiculed by
opposing counsel (that’s their job, in an effort to prevail in the argument
whether objectively true or not). But the confident, competent defense of your
practice and the theory of identification will go a long way to answering the
challenges and correcting the record.
5) Finally I believe that to achieve excellence, each
person needs to develop a commitment, a professional, personal passion. We must
improve individually in our understanding and defense of the history, the
concepts, and the emerging issues of the science. Are you just a technician who
follows a predetermined formula by rote without deeper understanding? Or are you
a practitioner of an applied science, a forensic scientist/latent print examiner
with all that title implies, ready for the rough-and-tumble of the adversarial
This probably will not occur strictly on the boss’ dime. If you think you should
be paid every time you open (much less buy) a book or serve in a
professional capacity, perhaps you should consider whether this is really where
you want to be. If you are not willing to take some degree of personal
responsibility for your professional development you are leaving yourself
exposed to the storms ahead. The 2003 Wisconsin State Public Defender’s
conference mantra, articulated to hundreds of attorneys over and over again was,
“Be prepared, be prepared, BE PREPARED” when it comes to the “expert” [note
sarcasm]. We must, likewise, be prepared or we will fulfill the caricature that
has been painted and prove to be the “expert” they claim that we are.
That it keeps one out of the weather and beats writing tickets or working as a
greeter at a mega-mart is not sufficient justification for continuing in the
None of this will be easy.
But I didn’t say it would be easy, just mandatory.
The sky is red. Is it morning or night on your ship of state?
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FUNNY FINGERPRINT FINDS