Breaking NEWz you can UzE...
compiled by Jon Stimac
Body Wash Bottle Leads
to Arrest - THE
TENNESSEAN, TN - Mar
21, 2004 ...a bottle on the ledge inside
a bathroom window was a burglary suspect's downfall...
Old Police Technique Enters Digital Age -
ALBERTA DAILY HERALD TRIBUNE, CANADA - Mar 18, 2004
...a cutting-edge gadget cuts the time-consuming -
and often messy - job of fingerprinting suspects down to just
FBI to Solve Delays in Fingerprint System
ON SAN DIEGO, CA - Mar
17, 2004 ...FBI is working to
overcome obstacles that could delay integration of fingerprint
systems with the Border Patrol until 2008...
Trial Cites Grisly
Fingerprint Procedure -
DENVER POST, CO - Mar 16, 2004
...testimony about the fingerprinting, done in a
crime lab, came at the end of a day of evidentiary testimony in the
Last week, we read another article by Simon Cole
that seemed to direct attack more toward practitioners and less toward the
science. Although many of his arguments are evolving, we saw excellent
discussion on the CLPEX.com message board regarding his position. One of
the issues that arose dealt with the introduction of biased into the
identification process. Several posts detail the fact that if an
identification decision is weighted due to outside factors, then the ACE-V
process was not followed and the opinion falls outside one of science. One
of the references cited in the posts deals with expectation and suggestion in
forensic science; it was authored by critics of questioned document analysis.
This is another of those articles which are healthy to read; but portions must
be taken with a grain of salt. Below I have posted the summary and
introduction to the article, and it has been placed on the CLPEX.com Reference
page in its entirety.
The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden
Problems of Expectation and Suggestion
Risinger +, Michael J. Saks ++, William C. Thompson ++, and Robert Rosenthal ++
+ Professor of Law, Seton Hall University School of Law, B.A.,
Yale University, 1966, J.D., Harvard University, 1969.
++ Professor of Law and Professor of Psychology, Arizona State University,
B.A., B.S., Pennsylvania State University, 1969, M.A., Ohio State University,
1972, Ph.D., Ohio State University, 1975, M.S.L., Yale University, 1989.
++ Professor, Department of Criminology, Law and Society, University of
California at Irvine, J.D., University of California at Berkeley, 1982, Ph.D.,
Stanford University, 1984.
++ ++ Distinguished Professor of Psychology, University of California at
Riverside, and Edgar Pierce Professor of Psychology, Emeritus, Harvard
University, Ph.D., U.C.L.A., 1956.
Copyright (c) 2002 California Law Review
California Law Review
90 Calif. L. Rev. 1
LENGTH: 26899 words [summary and introduction reproduced
... And the constellation of expertise is "forensic science" in general, and
especially those forensic science practices utilizing subjective human judgment
as their primary instrumentality, and not based on techniques derived from
normal science methodology. ... Such exercises may precipitate a change in
focus leading to the discovery of more dependable information that was
previously overlooked, even if the exercise is itself without rational content.
... A forensic scientist is not a detective. ... The Whitehurst affair is
merely a manifestation of the leavening of the traditional forensic science
laboratory culture with personnel seriously trained in the methods of academic
science, who come to their new jobs primarily for the science and less for the
law enforcement satisfactions involved. ... In brief, for forensic science
examiners, a properly constructed evidence lineup would accomplish at least the
following. ... The goal of the Justice Department in promulgating its
eyewitness guidelines, namely, reducing the incidence of false positive errors
without reducing the incidence of true positive identifications, can be achieved
equally well for forensic science. ... " However, the weight of the research and
the condition of normal forensic science practice render such a response so
irrational that in the long run it cannot prevail over the responsibility to
evaluate the reliability of such testimony pursuant to Daubert and Kumho Tire.
One must not equate ignorance of error with the lack of error. The lack of
demonstration of error in certain fields of inquiry often derives from the
nonexistence of methodological research into the problem and merely denotes a
less advanced stage of that profession. n1
This is a criminal investigation, sir. You are asking about bias controls, which
refers to research. n2
The Requirements of Kumho Tire Co. v. Carmichael
In Kumho Tire Co. v. Carmichael n3 the United States Supreme Court put forward
two important principles for the control of expert evidence. The first is that
the judge's gatekeeping responsibility to insure minimum reliability of expert
testimony pursuant to Federal Rule of Evidence 702 n4 applies to all proffered
expert testimony, not just the explicit products of "science." n5 The second,
less explicit but no less important, is that this judgment must be made
concerning the "task at hand," n6 instead of globally in regard to the average
dependability of a broadly defined area of expertise. n7 In other words,
reliability cannot be judged "as drafted," but must be judged only specifically
"as applied." The Court repeatedly made this clear in Kumho Tire, n8 perhaps
best when it said:
contrary to respondents' suggestion, the specific issue before the court was not
the reasonableness in general of a tire expert's use of a visual and tactile
inspection ... . Rather, it was the reasonableness of using such an approach,
along with [the expert's] particular method of analyzing the data thereby
obtained, to draw a conclusion regarding the particular matter to which the
expert testimony was directly relevant ... . The relevant issue was whether the
expert could reliably determine the cause of this tire's separation. n9
As the Court further stated, "Rule 702 grants the district court the
discretionary authority ... to determine reliability in light of the particular
facts and circumstances of the particular case." n10
As a result of Kumho Tire, courts will be called upon to develop criteria for
the proper delineation of both the "task at hand" and the particular
circumstances affecting its reliability. n11 The development of such criteria is
not a trivial task, both because individual cases may present complicated
situations, as Kumho Tire illustrates, and because not all considerations that
may bear on the reliability of an expert assertion should be taken into
account in a Rule 702 determination. n12 For example, it seems that at a
minimum, expert veracity and sincerity are not proper Rule 702 factors and, for
good or ill, are to be left to the evaluation of the trier of fact as they are
in regard to fact witnesses. n13 In addition, it seems inappropriate for a court
to exclude relevant and reliable expert testimony simply because the judge had
concluded based on other evidence in the case that the expert was simply wrong.
Beyond this, however, after Kumho Tire it appears both appropriate and necessary
for the judge to consider any factor that could be shown to affect the
reliability of an expert's testimony under the "particular circumstances of the
particular case." n14 Because Kumho Tire obligates a trial court to make a
reliability determination under Rule 702 where any proposed expert testimony's
"factual basis, data, principles, methods, or their application are called
sufficiently into question," n15 it would seem incumbent upon judges and lawyers
to inform themselves concerning the status of knowledge bearing on such factors.
It is the aim of this Article to aid in this process. Specifically, we will show
that there are certain factors which, when present, undermine to some degree the
reliability of virtually any form of expertise. Further, we will show that the
extent to which reliability is undermined depends not only on the presence of
such factors, but on the characteristics of the expertise at issue, most
particularly the degree to which it depends on subjective human judgment.
Moreover, we will show that there is an entire established constellation of
expertise, celebrated in popular culture and heretofore generally admissible, in
which such factors form a rampant and uncontrolled part of normal practice. We
will then put forward some practical proposals for reform of internal practice,
and some suggestions about the proper legal response to an admissibility
challenge under Rule 702.
The factors we refer to are primarily expectation and suggestion, which drive
much of what is globally labeled "observer effects" in social psychology and
research methodology. And the constellation of expertise [*6] is
"forensic science" in general, and especially those forensic science practices
utilizing subjective human judgment as their primary instrumentality, n16 and
not based on techniques derived from normal science methodology. n17
I Observer Effects
A. Evolution of the Awareness of Observer Effects
An elementary principle of modern psychology is that the desires and
expectations people possess influence their perceptions and interpretations of
what they observe. In other words, the results of observation depend upon the
state of the observer as well as the thing observed. This insight is not new;
long before cognitive scientists began formally studying the psychological
foundations of such effects, the phenomenon was noticed and commented upon.
Julius Caesar, for instance, noted that "men generally believe quite freely that
which they want to be true." n18
Sensitivity to the problems of observer effects has become integral to the
modern scientific method. Soon after Renaissance natural philosophers began
creating the scientific method, they began paying specific attention to the
problem of observer effects. The writings of Sir Francis Bacon in 1620, for
example, recognized the problem. Bacon suggested that "the human understanding,
when any proposition has once been laid down ... forces everything else to add
fresh support and confirmation; and although ... instances may exist to the
contrary, yet [the understanding] either does not observe or despises them ...
." n19 Bacon also posited that "it is the peculiar and perpetual error of the
human understanding to be more moved and excited by affirmatives than negatives,
whereas it ought duly to be impartial; nay, in establishing any true axiom, the
negative instance is the most powerful." n20 In the first passage, Bacon
anticipated what modern [*7] research has shown to be the cognitive
phenomenon of selective attention: the tendency of observers to seek out some
information and avoid other information. n21 In both passages, Bacon anticipated
what modern cognitive scientists refer to as confirmation bias, the tendency to
test a hypothesis by looking for instances that confirm it rather than by
searching for potentially falsifying instances, even though most scientists and
philosophers of science today agree with Bacon that the best scientific method
is to proceed by doing the latter. n22 Bacon adds that "the human understanding
resembles not a dry light, but admits a tincture of the will and passions, which
generate their own system accordingly, for man always believes more readily that
which he prefers." n23 Like Caesar before him, Bacon took a step beyond
cognition and raised the issue of motivational or attitudinal effects on what a
person thinks he or she has observed.
[a list of observer effects is given and each is discussed at length;
expectation, anchoring, role, conformity, experimenter, pervasiveness, desire
and motivation, confidence, etc.
The remainder of this article is available in the Reference library under "Legal
To discuss this Weekly Detail, log on to the CLPEX.com
message board: (http://www.clpex.com/phpBB/viewforum.php?f=2)
More formal latent print discussions are available at
Don't allow 'reverse delegation'
Once you've assigned a task to an employee, don't allow yourself to be talked
into relieving the person of their responsibility. That can happen in the
blink of an eye.
You allow yourself to be bottonholed in a hallway or the elevator. The
conversation begins "I think we have a problem." The "we" implies that the
person would like to bounce the task back to you. If you're not careful,
the problem will end up on your desk.
How should you handle this kind of situation? Make sure that the next move
belongs to the person to whom you have delegated the task.
Say "You're right. There is a problem here. What are your
alternatives? Give me a call tomorrow and tell me how you've decided to
handle it. I support you 100%."
-Adapted from Work Smart, Not Hard, George Sullivan,
via Communication Briefings,
December 2003, 800.722.9221, briefings.com.
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Until next Monday morning, don't work too hard or too little.
Have a GREAT week!