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we looked at the defense perspective on
psychological influences in forensic science.
Steve Ostrowski brings us
the latest on the Daubert
challenge currently being decided in Massachusetts.
Daubert Challenge to Simultaneous Impressions
by Steve Ostrowski
This past Wednesday morning (September 7, 2005) was another very
important day in the legal life of the science of fingerprint identification.
The Massachusetts Supreme Judicial Court (SJC) heard oral arguments on the
admissibility of simultaneous impressions as well as the science of fingerprints
as a whole. Many examiners from around the country tuned in as the proceedings
were broadcast live through a website established and maintained by Suffolk
University Law School. Although the feed was intermittent and fitful, much was
gained from the experience.
The debate is to determine whether fingerprint evidence should be admitted at
the upcoming retrial of Terry L. Patterson. Mr. Patterson was initially found
guilty in the 1993 slaying of Boston Police Department Detective John J.
Mulligan. Reports state that Patterson and a friend (who was also convicted of
homicide in a separate trial) shot Det. Mulligan five times in the face as he
sat in his vehicle while on a paid work detail. Five years ago, the SJC
overturned Patterson's conviction based on a lawyer-defense witness issue.
Patterson’s attorney, John H. Cunha, Jr., Esq., has been contesting the
fingerprint evidence since 2002 and the issue has only gotten more intense on
the heels of the exoneration of Stephen Cowens in 2004.
During the initial trial, prosecutors introduced a latent fingerprint developed
on the window of the driver side door of Det. Mulligan's vehicle. Boston Police
Department Sergeant Robert Foilb determined that the “streaked” grouping of four
adjacent prints was in fact simultaneous and he subsequently identified the
print to Terry Patterson. The defense claims that this method of identification
in which the aggregate of detail from separate fingers is not a generally
accepted, standard method for identification.
impression was analyzed by many different examiners during the past twelve
years. Besides the examiners at the Boston Police Department, four examiners at
Massachusetts State Police Crime Scene Services (MSP-CSS) also looked at this
impression and concurred. These examiners included Sgt. Brian Winsor, Tr. Susan
Ricci, Lt. Deborah Rebeiro and Cpt. George MacDougal. In preparation of the
upcoming Patterson retrial, Lt. Det. Kenneth Martin, also of MSP-CSS, looked at
the impression and concurred with the findings. Additionally, three examiners
from Ron Smith and Associates (Ron Smith, Jamie Bush and Bob Garrett) also
concurred with the simultaneous print identification.
For clarification purposes, there is a second latent impression in this case.
For anyone reading the amici briefs or additional accounts, there was a single
latent fingerprint impression on the passenger side door of Det. Mulligan’s
vehicle. This impression was determined to be identifiable and the FBI excluded
it as having been made by Terry Patterson. There are no suspected erroneous
identifications in the case.
The SJC consisted of a panel of six justices lead
by Chief Justice Margaret H. Marshall. As many of you recall from an earlier
edition of The Weekly Detail, amicus briefs were requested by the SJC in
this case. Amicus briefs are ‘friend-of-the-court’ briefs that provide detailed
information and legal citations for the justices to better understand the issue
at hand. The request of the SJC was:
The Justices are soliciting amicus briefs. This reservation and report seeks
pretrial resolution of the issue whether the Commonwealth has met its burden
under Commonwealth v. Lanigan, 419 Mass. 15 (1994) and Daubert v. Merrell
Dow Pharmaceuticals, 509 U.S. 579 (1993), to establish the reliability of
latent fingerprint individualization applying ACE-V methodology to
There were a total of four amicus briefs submitted. Two briefs supported
the views of the defense and two briefs supported the views of the
Commonwealth. In the following paragraphs, I have tried to summarize the
arguments made in each of the briefs without making a full critique of the
first of the defense’s amici briefs listed Mark Acree, Simon Cole,
Stephen Fienberg, John Vokey, Sandy Zabell and others as supporting amici.
The brief describes Mark Acree as holding a M.S.F.S. degree, being a former
FBI latent print examiner and current president of APEX Consulting, LLC.
This brief also credits Drs. Lyn Haber and Ralph Haber as scientists
“trained in fingerprint comparison.” The brief outlines views from the
amici (scientific and legal “mainstream”) which included 15 law professors
and scientists. The brief argues, among other things, that fingerprint
analysis has no uniform standards for measuring sufficiency in points of
comparison when effecting an individualization. This brief was authored by
David M. Siegel, Esq. (New England School of Law), Stanley Z. Fisher, Esq.
(Boston University School of Law), and Daniel Givelber, Esq. (Northeastern
University School of Law).
John Vanderkolk, Dr. Thomas Busey and others, along with myself, had an
opportunity to review the Siegel brief and make comments to the Norfolk
County District Attorney’s Office during the drafting of their own amicus
brief. As expected, I found this brief to contain many misconceptions,
half-truths, out-of-context citations and blatant false statements. The
brief contains classic Daubert verbiage such as:
of fingerprint identification has not been established;
there are no
studies showing the validity of identification through simultaneous
there are no
standards for the application of the ACE-V methodology beyond each
examiner’s judgement (sufficiency / subjectivity);
cannot agree among themselves as how to deal with a simultaneous impression
(or any noncontiguous friction ridge skin impression);
individualize simultaneous impressions are not following generally accepted
examiners claim to be infallible;
merely technicians in a self-proclaimed “scientific” community absent of
are not as reliable as the well-tested DNA analysis with their population
defense amicus brief was submitted on behalf of the National Association of
Criminal Defense Lawyers (NACDL), the Massachusetts Association of Criminal
Defense Lawyers and the Committee for Public Counsel Services. This brief
was prepared by Lisa J. Steele, Esquire.
A few days succeeding the oral arguments, I was able to obtain a copy of the
NACDL amicus brief. This document was very well compiled but, like the
Siegel amicus brief, contained many assumptions, speculations, poor
interpolations of scholarly “scientific” experiments involving students and
lack of a true fundamental understanding of the comparison process. The
brief includes typical Daubert verbiage such as:
the amount of
reported erroneous identifications is only the tip of the iceberg;
the UK had a
16-point minimum standard which is not exercised in this country;
comparison has become a synonym for reliability;”
including exemplars, are distorted and thus the identification process is
inherently flawed due to the high level of subjectivity in distinguishing
between dissimilarities and discrepancies (differences);
bias exists and is “impossible to avoid” because the Evaluation and
Verification phases of ACE-V is subjective and judgmental;
verification is necessary in all cases in order for the ACE-V method to be
should consider whether, when a match involves allegedly simultaneous
impressions, an adequate amount of comparison information is found on each
The NACDL brief also describes how the Commonwealth
anticipates offering Kenneth Martin to testify to the theory of simultaneous
impressions identification via the ACE-V methodology at the retrial of Terry
Patterson. The brief claims that Sgt. Foilb and Lt. Martin should not be
permitted to testify because the testimony would be unreliable. The NACDL
amici believe their testimony is not reliable because the Commonwealth
failed to introduce supporting testimony to the court in the following
Martin’s qualifications with respect to
the methodology Martin used to analyzed the
latent and exemplar prints;
how Foilb and Martin avoided conformational
how Foilb and Martin dealt with high-profile /
high-pressure situations created by the homicide of a police officer;
the fact that Foilb and Martin did not use
the fact that Foilb and Martin did not properly
document their conclusion of simultaneity.
Two amicus briefs were submitted in support of the
Commonwealth’s views. One was prepared by the Norfolk County District
Attorney’s Office and the other was submitted on behalf of the Secretary of
Public Safety by the Attorney General’s Office.
Attorney’s Office brief was well put together. It touched on the facts
of the case at hand, the history of Daubert reliability challenges to
fingerprints and clarified some of the misinterpretations in the defense’s
briefs. The brief also focused on how a complete, successful analysis during
the ACE-V process would establish a noncontiguous impression as one whole
impression in which the aggregate of the detail can be used for comparison
and identification purposes.
The second of the Commonwealth’s amicus briefs was submitted on behalf of
the Secretary of Public Safety by the Attorney General’s Office. I have not
had to opportunity to review this brief and I am looking forward to
receiving a copy in the near future. I envision a particular holy grail of
fingerprint reference material to have these briefs in the future for all to
During oral arguments, each side was allowed fifteen minutes to present
their views and answer a litany of questioned posed by the SJC. The
proceedings were very well attended and the defense presented their argument
first. Atty. Cunha argued that there is not a scientific basis or a
national standard in place to determine when a smudged fingerprint contains
enough information to individualize a person to the exclusion of all others.
Atty. Cunha stated that there could be up to 150 or 175 points for
comparison on the skin of a finger. He argued that 6, 10 or 12
corresponding “matches” does not individualize a donor because no testing
has been done. He proclaimed that there are no standards when it comes to
requiring a certain number of “matches” and that it is essentially left to
the ‘I-know-it-when-I-see-it’ feeling of every examiner.
With regards to simultaneous impressions, not much was argued. Atty. Cunha
conceded that even though the question at hand for the SJC to hear the case
was based on the methodology of identifying simultaneous impressions, it was
really based on the entire science itself, which is unsubstantiated. Thus,
in the middle of the proceeding, Cunha amended the question at hand to
include the reliability of the entire science.
A humorous point came when Cunha was describing how there is a gut feeling
that examiners get when comparing fingerprints. He related it to a 1960’s
television show where investigators develop a print and then they have their
guy - - case closed. His was cut short by Chief Justice Marshall and
instructed to leave the anecdotes aside.
The defense is hoping the
SJC rules that fingerprint evidence is inadmissible due to its unreliability
and thus excludes it from the upcoming retrial of Mr. Patterson.
Apparently, the fingerprint evidence was the only physical evidence in the
case. If the SJC rule that fingerprints are indeed admissible, the defense
hopes the court would take a more modest step and require juries be
instructed that fingerprint evidence is not infallible.
Appellate attorney Donna Patalano, an A.D.A.
from Suffolk County, represented the Commonwealth of Massachusetts. She
began by stating that Atty. David Meier,
Suffolk County's chief attorney for homicide cases, was unable to be
there because of a funeral. Atty. Meier is the lead trial attorney for the
Much like the Norfolk County amicus brief, Atty. Patalano talked about the
legal history of the science of fingerprints and how courts in all 50 states
have accepted this type of evidence as reliable for almost a century. She
spoke about the general acceptance of the ACE-V methodology throughout the
field of fingerprints, speaking specifically on the analysis phase. Atty.
Patalano explained how examiners could establish a noncontiguous impression
as one whole impression in which the aggregate of detail can be used for
comparison and identification purposes by often referring to FBI Special
Agent Stephen Meagher’s testimony from the original Patterson trial.
Atty. Patalano was asked some very challenging questions from the SJC.
Questions pertaining to the training of new examiners and determining their
competency and proficiency. Questions pertaining to the sufficiency of
friction ridge detail in latent impressions. At one point, Justice Robert
J. Cordy stated “How much similarity is enough? That's what we're
asking.'' Atty. Patalano did refer to the FBI’s 50K-50K study but the
justices cut Patalano short because they did not want to hear about
uniqueness and permanence. Nor did they want to hear about cropped exemplar
prints such as those in the 50K-50K study. The SJC wanted specific
information on latent impressions. They wanted information regarding how
many prints a trainee is required to examine and at what level of
competency. They wanted information on distortion and how examiners discern
between dissimilarities and differences, including a threshold at which
sufficiency in smudged latents is determined. Atty. Patalano offered
explanations of competency testing and CTS proficiency testing, but I felt
it was unfair to pose such abstruse, technical questions on the intricacies
of latent fingerprint identification to a lawyer not trained as an expert in
In hindsight, perhaps the Commonwealth’s oral arguments should have focused
more on competency and proficiency testing, practitioner error rate,
administrative rules and actions governing examiners, established protocols
and standards, certification, accreditation, etceteras. But then again, the
base argument was supposed to be solely on simultaneous impressions.
The SJC questioned both Cunha and Patalano intensely during their respective
arguments. There was no clear-cut winner at the conclusion of the
proceedings. I am confident that the justices will do their homework with
the amici briefs and other materials provided them. The court’s highly
anticipated ruling will hopefully be ordered before the average wait time of
4-5 months as indicated by several recent rulings on the SJC website.
If you missed the webcast and wish you had not, do not fret.
Joan Kenney of the Public Information
Office at the Massachusetts Supreme Judicial Court says that you will have
that opportunity. She confirmed that the SJC, in partnership with Suffolk
University Law School, is archiving oral arguments, beginning with the
September sitting this week. The archived proceedings will be available
within four days following the proceeding at
Therefore, by the time you are reading this edition of The Weekly Detail,
the archived oral arguments should be available for viewing.
Just look for Commonwealth vs. Terry L. Patterson
or search by docket number with SJC-09478.
Ostrowski, MSFS, CLPE
New Hampshire State Police Forensic Laboratory
33 Hazen Drive
Concord, New Hampshire 03305
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