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Monday, December 15, 2003

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


Fingerprint Expert Set to Show Link in Slaying - AL.COM - Dec. 11, 2003 ...fingerprint expert was subpoenaed to tell a jury how he linked the suspect to the victims home...

Lawyers Seek More Time - GRAND JUNCTION SENTINEL, CO - Dec. 10, 2003 ...attorneys for murder suspect asked a judge to give a defense expert more time to analyze fingerprints from the home where victim was killed...

Mistaken ID: Murder Suspect Still at Large - B92 YUGOSLAVIA - Dec. 7, 2003 ...Dutch authorities report that one of two men arrested in connection with the murder of Serbian Prime Minister Djindjic had been misidentified...

New Fingerprinting Device Helps Identify Criminals - SABC NEWS, So AFRICA - Dec. 7, 2003 ...Police: About 51 detainees at police cells were fingerprinted, and seven of them identified as being wanted for other crimes...
 


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.

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Last week, Craig Coppock related some thoughts on minimum information in fingerprint identification.  This week, we examine the dissenting opinion in U.S. v. Crisp.
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On December 6, 2002, the Fourth US Circuit Court of Appeals decided that "while [the Defendant, Patrick] Crisp may be correct that further [fingerprint] research, more searching scholarly review, and the development of even more consistent professional standards is desirable, he has offered us no reason to reject outright a form of evidence that has so ably withstood the test of time." The court also quoted Judge Pollak's decision in US v. Llera-Plaza: "while further research into fingerprint analysis would be welcome, to postpone present in-court utilization of this bedrock forensic identifier pending such research would be to make the best enemy of the good." Llera Plaza, 188 F. Supp. 2d at 573 (internal quotation omitted).

Ultimately, the rulings of the district court and the conviction of Patrick Crisp based on fingerprint evidence was affirmed. However, a very strong dissent from Circuit Judge Michael serves as insight into the perspective of some “critics” of the science of fingerprint examination. In the introduction of the dissent, Judge Michael explains that in Crisp, “the government did not prove that its expert identification evidence satisfied the Daubert factors or that it was otherwise reliable”. He also clarified that he wasn’t saying that fingerprint evidence in general was unreliable… just that it hadn’t been proven reliable under the Daubert standards in this case.

First I will briefly overview the content of Judge Michael’s dissent; the remainder of this week’s Detail will be the dissent in its entirety. The entire 30-page District Court decision including the majority opinion is archived under “Crisp” at the bottom of the “Mitchell” page of CLPEX.com

Summary of Judge Michael’s Dissent:

- Just because fingerprint examination is generally accepted under Frye doesn’t mean it’s admissible under Daubert standards

- Adversarial testing is not just cross-examination; it also involves independent review and analysis of the FP evidence in the case. However, many defendants are indigent, and there is often a lack of funds to hire an independent examiner. Further, there is a lack of independent crime laboratories to complete the work.

- The government failed to satisfy the Daubert factor of testing and validation. They did not offer a record of reliability testing, and it appears there have not been sufficient validation tests to prove that a latent print will match only one known print in the world. Proficiency tests are inadequate when they involve “superior” latent prints that do not reflect “real-world conditions.” “The government did not introduce evidence of studies or testing that would show that fingerprint identification is based on reliable principles and methods.”

- The government failed to satisfy the Daubert factor of peer review and publication. Fingerprint publications do not prompt critique or reanalysis by other scientists, and therefore fingerprint-related identification analysis techniques and methodologies, have not changed much over the years.

- The government ignored the Daubert factor of error rate in this case. The examiner testified that “[a]s far as statistics, off the top of my head at this point, I cannot give you any. I do know that… errors have been made in the field of fingerprints” . Error rate must be demonstrated by reliable scientific studies, not by assumption. Further, proficiency tests containing non-real world latent prints are not sufficient to test the error rate of individual examiners. The 1995 CTS proficiency data and a similar 1998 test reveal that about half of the examiners were able to make correct identifications and eliminations on all the prints. “An error rate that runs remarkably close to chance can hardly be viewed as acceptable under Daubert.”

- The government failed to establish the Daubert factor as to whether there are standards that govern the application of the technique. Testimony by the examiner that the degree of similarity required to find that prints are matching “is left up to each individual examiner.” One forensic expert (Stoney) contends that there are no standards; there are no minimum point requirements. The movement away from point requirements “is not based on scientific study. (Epstein)” and there is disparity in the field regarding the use of level 3 detail for identification. (because of distortion) “One dissimilarity” in two impressions is thought to be a universal standard, but if an examiner believes the prints match they explain away the difference rather than discounting the match. Verification is considered to be essential, but cases exist where no verification took place; and even verification that does take place is not independent and objective. All of this leads (Stoney and Cole) to the belief that “[t]he criteria for absolute identification in fingerprint work are subjective and ill-defined.”

- The government failed to establish the Daubert factor of general acceptance by the scientific community. General acceptance by fingerprint examiners, the public or the legal system does not sufficiently establish that fingerprints has valid, general acceptance in the scientific community.

- “Even if the proponent of scientific expert evidence does not satisfy the Daubert factors, the evidence may be admissible if it is otherwise shown to be reliable. The government also failed to provide other reasons to establish that its fingerprint evidence in this case is reliable.”

- “To put it bluntly, the precedent of prior admission, rather than exacting scientific scrutiny” has led to the general acceptance of fingerprint evidence.

- Fingerprinting arose because it offered a “quick, cheap, supposedly less scientific way of identifying those whose crimes did not justify the expense of anthropometry” under the Bertillon system, even though fingerprinting was “believed to be considerably less reliable."  Demonstrating this is an FBI survey involving two crime scene impressions sent along with the defendant’s exemplars to all fifty state crime laboratories. The results suggest that the profession of absolute certainty in fingerprint identification is “a false comfort.” “The history of fingerprint identification and the dogged certainty of its examiners are insufficient to show that the technique is reliable.

- I conclude that the district court’s decision to admit the fingerprint evidence was an abuse of discretion. “A judge who takes Daubert’s commands seriously would be hard pressed to write a coherent opinion justifying a decision to admit the expert opinion.” (Faigman)


[The entire dissent is represented below:]

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. PATRICK LEROY CRISP, Defendant-Appellant.

No. 01-4953

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.

(CR-01-236)

Argued: December 6, 2002
Decided: March 31, 2003
Before WILKINS, Chief Judge, and MICHAEL and
KING, Circuit Judges.

P15:

MICHAEL, Circuit Judge, dissenting:

The majority believes that expert testimony about fingerprint and handwriting identification is reliable because the techniques in these fields have been accepted and tested in our adversarial system over time. This belief leads the majority to excuse fingerprint and handwriting analysis from the more careful scrutiny that scientific expert testimony must now withstand under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), before it can be admitted. In Patrick Leroy Crisp’s case the government did not prove that its expert identification evidence satisfied the Daubert factors or that it was otherwise reliable. I respectfully dissent for that reason. In dissenting, I am not suggesting that fingerprint and handwriting evidence cannot be shown to satisfy Daubert. I am only making the point that the government did not establish in Crisp’s case that this evidence is reliable. The government has had ten years to comply with Daubert. It should not be given a pass in this case.

The Daubert case lists five factors for assessing the reliability of expert scientific testimony: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has withstood peer review and publication; (3) whether there is a known or potential rate of error; (4) whether standards exist for the application of the theory; and (5) whether the theory has been generally accepted by the relevant scientific community. Daubert, 509 U.S. at 593-94. These factors are not meant to be exclusive or necessarily dispositive. Id. However, when "the Daubert factors are reasonable measures of the [expert] testimony’s reliability, the Supreme Court has instructed that the trial judge should consider them." United States v. Lewis, 220 F. Supp. 2d 548, 551 (S.D. W. Va. 2002) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (emphasis added)). The majority excuses fingerprint and handwriting analysis from any rigorous Daubert scrutiny because these techniques are generally accepted and have been examined for nearly one hundred years in our adversarial system of litigation. These circumstances are not sufficient to demonstrate reliability in the aftermath of Daubert. To say that expert evidence is reliable because it is generally accepted is to say that it is admissible under Daubert because it was admissible under the old rule articulated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (allowing expert evidence that had "gained general acceptance in the particular field in which it belongs"). Frye’s "general acceptance" rule was replaced by Fed. R. Evid. 702, which now requires expert testimony to be "the product of reliable principles and methods." Daubert, of course, outlines the factors that are relevant to the determination of reliability. Nothing in the Supreme Court’s opinion in Daubert suggests that evidence that was admitted under Frye is grandfathered in or is free of the more exacting analysis now required. See United States v. Saelee, 162 F. Supp. 2d 1097, 1105 (D. Alaska 2001) ("[T]he fact that [expert] evidence has been generally accepted in the past by courts does not mean that it should be generally accepted now, after Daubert and Kumho."). Nor is fingerprint and handwriting analysis necessarily reliable because it has been subjected to the adversarial process of litigation.

In a criminal case like this one, adversarial testing simply means that the defense lawyer cross-examines the government’s expert. That, I concede, is important, but it only goes part way. In most criminal cases, particularly those in which the defendant is indigent, the defendant does not have access to an independent expert who could review the analyses and conclusions of the prosecution’s expert. Simon Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification 280 (2001) [hereinafter Cole, Suspect Identities] (noting that defense lawyers rarely challenge fingerprint evidence, in part because they often do not have the funds to hire experts). Lack of money is only one problem. Lack of independent crime laboratories is another. The great majority of crime laboratories are operated by law enforcement agencies. Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439, 470 (1997); Paul C. Giannelli, "Junk Science": The Criminal Cases, 84 J. Crim. L. & Criminology 105, 118 (1993).

More important, criminal defendants do not appear to have access to experts who could challenge the basic principles and methodology of fingerprint and handwriting analysis. Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brooklyn L. Rev. 13, 38-39 (2001) [hereinafter Mnookin, Fingerprint Evidence] (explaining that fingerprint evidence came to be seen as particularly powerful in part because it was so rarely challenged by the defense); Cole, Suspect Identities, supra at 280 (reporting that New York City police officers caught fabricating evidence chose to create fingerprint evidence because it was so unlikely to be challenged). Our adversarial system has much to commend it, but it is not a general substitute for the specific Daubert inquiry. The system without Daubert did not work to ensure the reliability of fingerprint and handwriting analysis. As I point out in parts II.B. and III infra, fingerprint and handwriting analysis was admitted with little judicial scrutiny for decades prior to Daubert. Nothing in the history of the use of fingerprint and handwriting evidence leads me to conclude that it should be admitted without the scrutiny now required by Daubert. The government, of course, has the burden to put forward evidence "from which the court can determine that the proffered testimony is properly admissible" under Daubert. Md. Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998). The government utterly failed to meet its burden here.

At Crisp’s trial the government’s fingerprint identification evidence failed to satisfy any of the Daubert requirements for establishing scientific reliability.

The first Daubert factor is whether the technique has been tested. The government did not offer any record of testing on the reliability of fingerprint identification. See J.A. 361 (testimony of the government’s fingerprint expert, an employee of the North Carolina Bureau of Investigation, stating that she was not aware of any testing on the validity of the science). Indeed, it appears that there has not been sufficient critical testing to determine the scientific validity of the technique. See United States v. Llera Plaza, 188 F. Supp. 2d 549, 564 (E.D. Pa. 2002); Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint "Science" Is Revealed, 75 S. Cal. L. Rev. 605, 624-26 (2002); David A. Stoney, Fingerprint Identification: The Scientific Basis of Expert Testimony on Fingerprint Identification, in 3 Modern Scientific Evidence: The Law and Science of Expert Testimony § 27-2.0, § 27-2.1.2[6] (David L. Faigman et al. eds., 2002). Specifically, with respect to forensic fingerprint examination, there have not been any studies to establish how likely it is that partial prints taken from a crime scene will be a match for only one set of fingerprints in the world. Stoney, supra at § 27-2.3.2 ("The issue is not the finding of two fingerprints that are alike, but rather the finding of prints from two different fingers that can be mistakenly judged to be alike by a fingerprint examination."). Although the government introduced evidence that its fingerprint expert in this case had taken and passed proficiency tests, see J.A. 362-63, this evidence gave no basis for a conclusion that these proficiency tests reflect real world conditions. Proficiency testing is typically based on a study of prints that are far superior to those usually retrieved from a crime scene. Llera Plaza, 188 F. Supp. 2d at 565 (acknowledging that proficiency tests may not reflect real world conditions); compare also Lewis, 220 F. Supp. 2d at 554 (noting that proficiency tests are inadequate when everyone passes), with J.A. 362 (testimony of the government’s fingerprint expert in this case, saying that she always achieved a perfect score on proficiency tests). The government did not introduce evidence of studies or testing that would show that fingerprint identification is based on reliable principles and methods.

The second Daubert factor is whether the science or technique has been subjected to peer review and publication. Again, the government offered no evidence on this factor at trial. Fingerprint examiners, like other forensic scientists, have their own professional publications. Epstein, supra at 644. But unlike typical scientific journals, the fingerprint publications do not run articles that include or prompt critique or reanalysis by other scientists. Indeed, few of the articles address the principles of fingerprint analysis and identification at all; rather, most focus on the process of lifting fingerprints from crime scenes. Epstein, supra at 644. This lack of critical analysis in the fingerprint identification field has had a predictable effect. Unlike traditional scientific fields where criticism and vibrant exchange of ideas have led to dramatic advances, the techniques used by fingerprint analysts have changed little over the years. Simon Cole, What Counts for Identity? The Historical Origins of the Methodology of Latent Fingerprint Identification, Sci. in Context, Spring 1999, at 139, 165 (noting that little change has taken place in the methodology of analyzing latent prints).

The third Daubert factor calls for consideration of the known or potential rate of error. The government has not tested the reliability of fingerprint identification, so it ignored the error rate factor in this case. J.A. 360 (testimony of government’s expert that "[a]s far as statistics, off the top of my head at this point, I cannot give you any. I do know that . . . errors have been made in the field of fingerprints."); see also Epstein, supra at 633. Some courts have merely assumed that the rate of error in fingerprint identification is low. See Llera Plaza, 188 F. Supp. 2d at 566 (concluding that the absence of evidence of high error rates means that the error rate is not unacceptably high).

And that may be. But an error rate must be demonstrated by reliable scientific studies, not by assumption. Nor is it sufficient after Daubert for a proponent simply to show that a particular fingerprint examiner scores well on proficiency tests. First, it is unclear whether the proficiency tests taken by the examiner in this case were representative of real life conditions. Cf. Llera Plaza, 188 F. Supp. 2d at 565 (acknowledging that proficiency tests may not reflect real world conditions).

Second, where tests have attempted to imitate actual conditions, the error rates have been alarmingly high. Epstein, supra at 634. In a 1995 test conducted by a commercial testing service, less than half of the fingerprint examiners were able to identify correctly all of the matches and eliminate the non-matches. On a similar test in 1998, less than sixty percent of the examiners were able to make all identifications and eliminations. Id. at 634-35. An error rate that runs remarkably close to chance can hardly be viewed as acceptable under Daubert.

The fourth Daubert factor asks whether there are universal standards that govern the application of the technique. The government did not establish that there are such standards. Its expert asserted that her department had controlling standards, yet when pressed on the point, she admitted that the degree of similarity required to find that prints are matching "is left up to each individual examiner." J.A. 363. As one forensic expert contends, "[a]ny unbiased, intelligent assessment of fingerprint identification practices today reveals that there are, in reality, no standards." Stoney, supra § 27-2.3.1[2]. Many fingerprint examiners testify in terms of matching points, that is, the number of similarities between the ridges in the print taken from the crime scene and the ridges in the defendant’s known print. But the trend has been toward eliminating any requirement for a minimum number of matching points before an opinion can be given that a latent print and a known exemplar are attributable to the same person. See J.A. 363 (testimony of the government’s fingerprint expert that no minimum number of points is required); Llera Plaza, 188 F. Supp. 2d at 570 (somehow concluding that the fingerprint examination field has uniform standards because most examiners agree that no minimum number of points is required to confirm a match). The trend away from a minimum-point requirement may not be unreasonable because the requirement, although adopted by some agencies (and countries), is not based on scientific study. Epstein, supra at 637 (quoting a fingerprint expert as saying that the point system is based on "educated conjecture"); Cole, Suspect Identities, supra at 270 (discussing Britain’s eventual rejection of the sixteen-point minimum). Examiners have not, however, been able to replace the point system with anything more concrete. Epstein, supra at 638-39; Cole, Suspect Identities, supra at 268-69. There is even disagreement as to what aspects of the fingerprint the examiner should rely on. One prominent expert rejects traditional reliance on ridge characteristics and calls on examiners to look at other details such as sweat pores and ridge edges. Epstein, supra at 639; Cole, Suspect Identities, supra at 267. Others, however, vehemently reject this approach, explaining that variations in these particular details are especially common because of differences in pressure, residue on the fingers, the condition of the surface on which the print is left, and processing techniques. Epstein, supra at 639-40. All of this leads one expert to conclude that "[t]he criteria for absolute identification in fingerprint work are subjective and ill-defined. They are the product of probabilistic intuitions widely shared among fingerprint examiners, not of scientific research." Stoney, supra § 27-2.3.1[1]. See also Cole, Suspect Identities, supra at 268-69.

Further, even the safety checks that are thought to be universally accepted are not consistently followed. For example, fingerprint experts are supposed to reject as matching a pair of prints that contain even one dissimilarity. Epstein, supra at 640. At least one expert, however, has said that when fingerprint examiners believe the prints are a match, they explain away the differences rather than discounting the match. Epstein, supra at 640-41. Moreover, independent verification of a match by a second examiner is considered to be essential. See Cole, Suspect Identities, supra at 269; Epstein, supra at 641. Yet in many cases, including this one, no verification takes place. See ante at 9 n.4 (noting that no independent review took place in this case); Epstein, supra at 641; Cole, Suspect Identities, supra at 282 (explaining that an error made by Scotland Yard was attributed to the fact that independent verification did not take place); see also Cole, Suspect Identities, supra at 280-81 (detailing extensive fabrication of fingerprint evidence in the New York City Police Department that was not uncovered sooner in part because no independent verification took place). Moreover, any verification that does take place is not independent in the truest sense. The reviewer is usually a supervisor or colleague in a forensic lab associated with law enforcement, so the reviewer may share the same inclinations as the original examiner. See Cole, Suspect Identities, supra at 269. In short, the government did not establish that there are objective standards in the fingerprint examination field to guide examiners in making their comparisons.

The fifth (and final) Daubert factor is whether the technique has been generally accepted in the relevant scientific community. I acknowledge, of course, that the general public, which sees movies and television programs that regularly portray fingerprinting and other forensic techniques as key to crime solving, regards fingerprint identification as perfectly reliable. Moreover, several circuit courts since Daubert have held — without going deeply into the question — that fingerprint evidence is admissible. See United States v. Hernandez, 299 F.3d 984, 991 (8th Cir. 2002); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001); United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996). But "[t]he Daubert court did not suggest that acceptance by a legal, rather than a scientific community, would suffice." United States v. Starzecpyzel, 880 F. Supp. 1027, 1038 (S.D.N.Y. 1995). The fingerprint examination community is certainly a proponent of the technique. That community’s enthusiasm, however, must be subjected to objective scrutiny if Daubert is to have any meaning. One author asserts that "mainstream scientists, by and large, have ignored the question of whether individuals can be reliably identified through small, distorted latent fingerprint impressions." Epstein, supra at 646. At least two forensic commentators have expressed concern about the lack of objective scientific research into the reliability of the technique. Id. Nothing in the record in this case shows that the fingerprint examination community has challenged itself sufficiently or has been challenged in any real sense by outside scientists. Accordingly, the government did not establish that the technique has valid, general acceptance in the scientific community. The fifth factor is not satisfied. The government thus failed to demonstrate in this case that fingerprint identification is reliable under the specific Daubert criteria.

Even if the proponent of scientific expert evidence does not satisfy the Daubert factors, the evidence may be admissible if it is otherwise shown to be reliable. Cf. Daubert, 509 U.S. at 593-94; ante at 10. The government also failed to provide other reasons to establish that its fingerprint evidence in this case is reliable.

Fingerprint identification’s long history of use does not by itself support the decision to admit it. Courts began admitting fingerprint evidence early last century with relatively little scrutiny, and later courts, relying on precedent, simply followed along. To put it bluntly, the precedent of prior admission, rather than exacting scientific scrutiny, led to its universal acceptance. Cole, Suspect Identities, supra at 186 ("Fingerprint evidence won acceptance without being subjected to the kind of organized skepticism and careful scrutiny that is supposed to be inflicted upon scientific and legal facts."); id. at 259 (noting that fingerprint evidence had became widely accepted although "latent fingerprint identification was . . . not based on scientific research at all[ ] [but] [i]nstead . . . was based on anecdote, experience, and nineteenth century statistics"); Michael J. Saks, Merlin and Solomon: Lessons from the Law’s Formative Encounters with Forensic Identification Science, 49 Hastings L.J. 1069, 1104 (1998) (noting the lack of serious inquiry into the admissibility of fingerprint evidence in the early years). As a matter of fact, other forms of evidence in vogue at the time fingerprinting began to be commonly used were generally believed to be more credible. Cole, Suspect Identities, supra at 93, 146, 159. For example, experts in the Bertillon technique took minute measurements of the human body — including the bones in the face, arms, and feet, and the shape and size of the ears — to identify criminals. Id. at 34-44. The Bertillon system and its offshoots were widely used in France and were recognized by many states in the United States. Cole, Suspect Identities, supra at 146-49. It, like fingerprinting, was admitted as evidence in criminal cases. See, e.g., State v. Hill, 64 P.2d 71, 75 (Kan. 1937); see also Downs v. Swann, 73 A. 653, 654-55 (Md. 1909) (upholding as constitutional the use of Bertillon measurements for identification purposes in a criminal case); Cole, Suspect Identities, supra at 146-47 (noting use of Bertillonage and similar systems in the United States). Today, we consider the Bertillon system to be absurd. See People v. King, 72 Cal. Rptr. 478, 483-84 (Cal. Ct. App. 1968) (noting that we should heed the "tragic lessons of the Bertillon system"). Fingerprinting replaced the Bertillon system. But Bertillonage did not fall out of favor because anyone demonstrated its unreliability or fingerprinting’s superiority. Rather, law enforcement officials found the Bertillon system too cumbersome to use and too complicated to entrust to untrained technicians. See Cole, Suspect Identities, supra at 91, 93, 159.

Fingerprinting, on the other hand, rose in popularity because the prints could be taken and analyzed quickly by those with little training or experience. Id. at 159 ("Fingerprinting, then, emerged not as a method of criminal identification superior to anthropometry [Bertillonage] but rather as a quick and cheap, supposedly less scientific way of identifying those whose crimes did not justify the expense of anthropometry."). These advantages were seen to outweigh fingerprinting’s primary drawback — that it was believed to be considerably less reliable than the Bertillon system. Cole, Suspect Identities, supra at 87-88, 93-94. Fingerprint identification’s long history of use, therefore, does not itself establish its reliability. Fingerprint identification may also be seen as reliable because the examination community prevents its experts from testifying to a match unless they are certain of the match. Fingerprint experts, in other words, refuse to hedge their testimony in terms of probability. 3 David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony § 27-1.0, § 27-1.0 (2002 & Supp. 2003). This practice seems to have hastened the technique’s acceptance by courts, who have been attracted to its seeming infallibility. Mnookin, Fingerprint Evidence, supra at 36. Professions of absolute certainty by an expert witness, however, seem out of place in today’s courtroom. Even a DNA match has a small chance of being in error.

Indeed, there is some suggestion that the certainty requirement for fingerprint identification is a false comfort. In one case, two prints found at a crime scene — identified with certainty by FBI experts as matching the defendant’s exemplars — were sent along with the defendant’s exemplars by the FBI to all fifty state crime laboratories. See D. Michael Risinger et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 Cal. L. Rev. 1, 41 (2002). Seven state labs found that one print could not be conclusively matched; five labs said the same about the second print. Id. Faced with this result that violated the tenet that no identification should be made if there was room for disagreement, the FBI sent annotated versions of the fingerprints, indicating important points of similarity, back to the twelve labs that did not find complete matches. Id. With time to reconsider, the initially dissenting labs changed their conclusions to support the FBI’s original identification. Id. The amount of maneuvering it took to reach the certain match requirement in this one case raises doubts about whether this requirement can be relied upon to ensure reliability. The history of fingerprint identification and the dogged certainty of its examiners are insufficient to show that the technique is reliable.

Because of that and the government’s failure to show that its fingerprinting evidence is reliable under the Daubert standards, I conclude that the district court’s decision to admit the fingerprint evidence was an abuse of discretion. Cf. 3 Faigman et al., supra § 27-1.0 ("A judge who takes Daubert’s commands seriously would be hard pressed to write a coherent opinion justifying a decision to admit the expert [fingerprinting] opinion.")

(P18-25 UNITED STATES v. CRISP)

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FUNNY FINGERPRINT FIND

"This picture shows a pattern that has an arch with a loop and scar.  The FBI categorizes this type of pattern as an accidental"

From: http://www.math.arizona.edu/~lega/195/Fall00/projects/Fingerprints/fingerprints.htm


12-03, Contributed by Michele Triplett
KCSO
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MANAGEMENT CIRCLE

Deliberate, then decide

As a manager, you routinely make decisions, some more difficult than others.  With so many people counting on you, you want to avoid making mistakes.  But when you delay or avoid decisions, you weaken your authority.

Follow these steps to make smart decisions - without agonizing over every detail:

1) Define what you need to decide.  Limit your statement to one sentence.  Example: "We've got a 7 month backlog and we need to cut it down."  List as many options as you can to close the gap between where you are and where you want to be.  Don't jump on the first attractive alternative - and don't stop until you run out of ideas.

2) Reflect on similar problems you've dealt with in the past.  Ask yourself: "what does my experience teach me?"  Cite facts and lessons that relate to the current situation.  Recognize that you probably won't gather all the information you want.  Set the goal of making good decisions with sufficient information and limited time. 

3) Ask others to find flaws in your thinking.  Go to three people you respect for input.  Summarize their suggestions and note any overlap in their feedback.  If a pattern emerges, you may have a solution.

4) Stay flexible.  Don't constantly second-guess yourself.  But if new information comes to light, be willing to revise your initial decision.  And don't ignore your gut.

If you're wavering between two courses of action, go with the one that doesn't give you a sick feeling in the pit of your stomach.  Use Gen. George Patton's decision equation: If you're 61% sure your plan will work, execute it.  If you're 80% sure, "violently execute it."

-Adapted from
The Essential Leader, Briefings Publishing Group, via Communication Briefings, September 2003, 800.722.9221, briefings.com.


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