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Monday, July 25, 2005

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

Over 100,000 criminal Aliens Captured RENEWAMERICA.US, D.C. - July 23, 2005 ...IAFIS enables Border Patrol agents to search fingerprint databases simultaneously...

Fingerprint Machine Out AGANA DAILY NEWS, GUAM - July 23, 2005 ...ID system at Criminal Investigation has been broken since 2001...

Fingerprints Going Digital   CHEYBOYGAN DAILY TRIBUNE, MI - July 22, 2005 ...residents used to go to law enforcement agencies to get their fingerprints taken for inked prints...

Fingerprint Could Hold Key To Case   ALBANY TIMES UNION, NY  - July 21, 2005  ...The case hinges, in large part, on a fingerprint forensics experts were able to lift from a Thruway toll ticket...

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Recent Message Board Posts
CLPEX.com Message Board

Photographing petrolem jelly on an object
Donna Fri Jul 22, 2005 5:13 pm

Detail # 104 Well, there you go again.
Paul Truedson Wed Jul 20, 2005 3:38 pm

Mayfield Case (from Detail 205)
Tim Print Tue Jul 19, 2005 5:02 pm

(http://clpex.com/phpBB/viewforum.php?f=2)

FUNNY FINGERPRINT FIND
by Steve Everist

"If fingerprints are similar to several files, then a detailed comparison has to be done against other files. The optical search or the automatic search may not be sufficient. And, according to Howie, the FBI wants to be sure that each and every swirl, whirl or loop is a definite match. There are no guesses. In these cases, it could take longer than the 15 days."

http://www.bankersonline.com/articles/bhv01n10/bhv01n10a1.html

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UPDATES ON CLPEX.com


Added 3 new smileys from last week, and one from this week to the Smiley Files, updated by the Smiley Czar, Bill Wolz.  Thanks as always to Bill for his work.

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Last week

we looked at perspectives involving IAI certification and the individuals involved in the erroneous Brandon Mayfield identification.

This week

we look at a recent Daubert challenge and related concepts in the disciplines of Firearms and Toolmarks.
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A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification
by Adina Schwartz [1]
The Columbia Science and Technology
Law Review: www.stlr.org
Article:
http://www.stlr.org/cite.cgi?volume=6&article=2

Firearms identification, often improperly referred to as "ballistics identification," is part of the forensic science discipline of toolmark identification. Despite widespread faith in "ballistics fingerprinting," this article contends that because of systemic scientific problems, firearms and toolmark identifications should be inadmissible across-the-board. This article explains that similarities between toolmarks made by different tools and differences between toolmarks made by the same tool imply that a statistical question must be answered to determine whether a particular tool was the source of an evidence toolmark. What is the likelihood that the toolmarks made by a randomly selected tool of the same type would do as good a job as the toolmarks made by the suspect tool at matching the characteristics of the evidence toolmark? Firearms and toolmark examiners evade this question by claiming to be able to single out a particular firearm or other tool as the source of an evidence toolmark.

The article further explains that the absence of statistical empirical foundations cannot be excused on the ground that, regardless of how they do it, firearms and toolmark examiners reach accurate identity conclusions. Although firearms and toolmark examiners have feared that Daubert would lead courts to exclude their testimony, both before and after Daubert, firearms and toolmark identification testimony has largely been admitted as a matter of course. No court, including the two recent courts that have excluded particular identification testimony, has recognized the systemic scientific problems with the field. Nonetheless, because of the risk that innocent people will be convicted or even sentenced to death on the basis of erroneous identifications, all firearms and toolmark identifications should be excluded until adequate statistical empirical foundations and profiency testing are developed for the field.

I. INTRODUCTION

In 2004 in the District Court for the Eastern District of Pennsylvania, a systemic Daubert challenge was brought to the admissibility of firearms and toolmark identification. The expert testimony in the case, United States v. Kain, [2] was typical of that offered by firearms and toolmark examiners. The goal of the forensic science discipline of firearms and toolmark identification is to identify particular tools, such as a bolt cutter or the barrel of a particular gun, as the unique source of marks on crime scene evidence, such as a fence or a fired bullet. [3] In accord with this, the prosecution expert in Kain sought to testify that cuts in a fence and grate were made by a pair of bolt cutters found in the defendant’s car, to the exclusion of all other bolt cutters in the world. In challenging the admissibility of this testimony, the defense argued that adequate statistical and empirical foundations and proficiency testing do not exist for the discipline of firearms and toolmark identification. Hence, Daubert requires the across-the-board exclusion of firearms and toolmark identification testimony.

At the Daubert hearing, Judge Anita M. Brody recognized the breathtaking implications of the defense challenge in Kain. She stated that, “[w]hat’s concerning me is that this is a generic issue and I don’t know whether the Government recognizes it. I’ve been a judge for 23 years, nobody has ever challenged this. This is an issue that has great moment for the Department of Justice. . . . If I preclude this testimony, it will make ripples all over the country.” [4] She further explained that she had gotten “so agitated” because “there’s rarely a case of any magnitude in ballistics or in arson or anything else that I don’t get some of this testimony.” [5] Before the judge could rule on the issue, however, the government offered the defendant a plea bargain that was too good to refuse. [6]

This article seeks to show that the defense position in Kain was correct: because of the systemic scientific problems, firearms and toolmark identification testimony should be inadmissible across-the-board. [7] After explaining the scientific issues in Part II, I survey the case law in Part III and show that no state or federal court – either before or after Daubert – has understood the scientific problems with firearms and toolmark identification. I conclude that because of the risk that innocent people will be convicted or even sentenced to death on the basis of erroneous identifications, all firearms and toolmark identification testimony should be excluded until adequate statistical empirical foundations and proficiency testing are developed for the field.

II. THE SCIENTIFIC BASIS OF FIREARMS AND TOOLMARK IDENTIFICATION

The premise underlying the forensic science discipline of firearms and toolmark identification is that individual tools leave unique marks on surfaces. Firearms identification is a subspecies of toolmark identification dealing with the toolmarks that bullets, cartridge cases, and shotshell components acquire by being fired and that unfired cartridge cases and shotshells acquire by being worked through the action of a firearm. [8] Firearms and toolmark examiners use comparison microscopes to compare evidence toolmarks on ammunition components or other evidence found at crime scenes with test toolmarks that they make with tools that are candidates for having made the evidence toolmark. If an examiner determines that the evidence and test toolmarks are sufficiently similar, a firearm or other tool is identified as the one tool to the exclusion of all others that produced the evidence toolmark.

This section’s account of the systemic scientific problems with firearms and toolmark identification will proceed, first, by distinguishing between class, subclass and individual characteristics of toolmarks in Part A. On this basis, Part B will explain that there are three major sources of misidentifications by firearms and toolmark examiners: (1) the individual characteristics of toolmarks are comprised of non-unique marks, (2) subclass characteristics shared by more than one tool may be confused with individual characteristics unique to one and only one tool, and (3) the individual characteristics of the marks made by a particular tool change over time. Part C will then show that the similarities between toolmarks made by different tools and the differences between toolmarks made by the same tool imply that a statistical question must be answered to determine whether a particular tool was the source of a toolmark on an object recovered from a crime scene. What is the likelihood that the toolmarks made by a randomly selected tool of the same type would do as good a job as the toolmarks made by the suspect tool at matching the characteristics of the evidence toolmark? A comparison with forensic DNA identification will be used to show that firearms and toolmark examiners have taken only the most minimal steps towards developing the necessary statistical empirical foundations for their identity claims.

A further, fundamental scientific problem will be discussed in Section D. Adequate proficiency testing has not been developed for firearms and toolmark identification.

Nonetheless, such proficiency tests as exist show that examiners make both misidentifications and missed identifications. Part E will explain that far from curing the fundamental scientific problems, the development of computerized firearms identification has shown that the possibility of missed and misidentifications by firearms and toolmark examiners is even greater than previously believed.

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The remainder of this 42 page article is located in its entirety at:

http://www.stlr.org/cite.cgi?volume=6&article=2


ENDNOTES

1 B.A., Oberlin College, 1971; Ph.D., The Rockefeller University, 1976; J.D., Yale Law School, 1985; Associate Professor, John Jay College of Criminal Justice and The Graduate Center, City University of New York. Vol. VI The Columbia Science and Technology Law Review 2005

2 United States v. Kain, Crim. No. 03-573-1 (E.D. Pa. 2004). The author was employed as an expert on firearms and toolmark identification by the defense in Kain.

3 See, e.g., Alfred Biasotti & John Murdock, The Scientific Basis of Firearms and Toolmark Identification, 3 Modern Scientific Evidence: The Law and Science of Expert Testimony 495, 496 (David L. Faigman et al. eds., 2002) (stating that as part of the broader forensic science discipline of toolmark examination, firearms examination “attempt[s] to identify whether a particular firearm made toolmarks on evidence items, to the exclusion of all other
firearms”). For failures to recognize that firearms and toolmark examiners aim to single out individual tools as the source of crime scene evidence, see Ramirez v. State, 810 So. 2d 836, 846 (Fla. 2001) [hereinafter Ramirez III] (suggesting that firearms and toolmark examiners have traditionally aimed to identify only the type of knife, as opposed to the particular knife, that caused a wound); Simon A. Cole, Fingerprinting: The First Junk Science?, 28 Okla. City U. L.
Rev. 73, 88 (2003) (erroneously assuming that the toolmark examiner in Ramirez III differed from “the profession as [a] whole” in claiming to be able to identify a unique tool as the only possible source of a toolmark); The Judicial Response to Firearms and Toolmark Identification Expert Evidence, 3 Modern Scientific Evidence § 29.10, at 74 (Supp. 2003) [hereinafter The Judicial Response] (implying that the Ramirez III court was correct in claiming that “such extreme statements [as that Ramirez’s knife was the murder weapon, to the exclusion of all others] were avoided in most toolmark cases”).

4 Transcript of Hearing at 87, United States v. Kain, (E.D. Pa. Feb. 24, 2004) (Crim. No. 03-573-1).

5 Id. at 101. See also United States v. Santiago, 199 F. Supp. 2d 101, 111-12 (S.D.N.Y. 2002) (referring to the fact that a significant number of convictions depend on ballistics identification: “The Court has not conducted a survey, but it can only imagine the number of convictions that have been based, in part, on expert testimony regarding the match of a particular bullet to a gun seized from a defendant or his apartment.”). Vol. VI The Columbia Science and Technology Law Review 2005

6 The government dismissed the defendant’s two-count indictment on a conspiracy charge and an arson charge that carried a five-year mandatory minimum sentence. Kain pled guilty to one count of misprision of felony, and received a ten-month sentence, consisting of five months in a halfway house and five months in prison. United States v. Kain, Crim. No. 03-573-1 (E.D. Pa. Mar. 15, 2004). For an amicus brief that was prepared but not submitted because of the plea bargain, see Adina Schwartz, A Challenge to the Admissibility of Firearms and Toolmark Identifications: An Amicus Brief Prepared on Behalf of the Defendant in United States v. Kain, Crim. No. 03-573-1 (E.D. Pa. 2004), J. Phil. Sci. & L. (2004), http://www.psljournal.com/archives/all/kain.cfm.

7 By contrast, Professor D. Michael Risinger has argued that the Daubert-Kumho test should be used to exclude only particular expert testimony offered in a particular case; testimony based on a particular field of expertise should never be excluded across-the-field. See Risinger, Defining the “Task at Hand”: Non-Science Forensic Science After Kumho Tire Co. v. Carmichael, 57 Wash. & Lee L. Rev. 767, 773 (2000) (stating that “what is clearly not consistent with Kumho Tire is any attempt to approach an issue of reliability globally. . . . The emphasis on the judgment of reliability as it applies to the individual case, to the ‘task at hand,’ runs through the opinion . . .”(footnote omitted)); see also Edward J. Imwinkelried, The Task at Hand, Nat’l L.J., Apr. 19, 2004, at 11 (praising Professor Risinger’s “insight,” and stating that “it is neither necessary nor sufficient for a judge passing on the admissibility of an expert’s testimony to make a global judgment about the general reliability of the expert’s discipline” ); The Judicial Response, supra note 3, at 72 (endorsing “Kumho Tire’s teaching that what is at issue is the admissibility of the task-at-hand in the case at bar; the issue is never the admissibility of ‘an entire field’ considered globally”).
This article aims to show that Professor Risinger’s task-at-hand approach is misguided. When, as in the case of toolmark and firearms identification, there are systemic scientific problems with an entire field, a failure to consider these problems is likely to lead judges to write scientifically misinformed opinions that serve as precedents for the admission of unreliable evidence. Part III will show, in particular, that this criticism applies to the two decisions on firearms and toolmark identification that commentators have praised for following the task-at-hand approach: the Florida Supreme Court’s decision in Ramirez III and the Texas Court of Criminal Appeals’ decision in Sexton v. State, 93 S.W.3d 96 (Tex. Crim. App. 2002). See text accompanying notes 144-150 and 179-190 infra (discussing Ramirez III and Sexton and criticizing the analysis of those cases in The Judicial Response, supra note 3, at 492-93 (3d ed. 2002) & at 73 (Supp. 2003)). Vol. VI The Columbia Science and Technology Law Review 2005

8 Although firearms identification is sometimes called “ballistics identification,” the term is improper because ballistics deals with the motion of projectiles within firearms. See Paul C. Giannelli, Ballistics Evidence: Firearms Identification, 27 Crim. L. Bull. 195, 197 (1991).

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