Breaking NEWz you can UzE...
compiled by Jon Stimac
Case Takes on
LOWELL SUN, MA - Sept 18, 2005
...fingerprinting is coming under
assault in the state's highest court, with lawyers arguing that the
practice is both unreliable and unscientific...
Finger Points to Crime – NEW
YORK DAILY NEWS, NY - Sept 18, 2005
...fingerprint identification systems began
revolutionizing the way police search for suspects in the early 1990s...
Fingerprinting is Not Infallible
ALL HEADLINE NEWS
- Sept 13, 2005
...while forensic scientists have long claimed
fingerprint evidence is infallible, University of California-Irvine
criminologist Simon Cole disagrees...
'CSI Effect' To Be
Discussed At Law, Science Conference –
TAMPA TRIBUNE, FL - Sept 12, 2005
...the impact of the CSI Effect is among the topics that will be
debated at the National Conference on Science, Technology and the Law...
Recent CLPEX Posting Activity
Last Week's CLPEX.com
Confirmation Bias Study on Experienced Examiners
L.J.Steele Sat Sep 17, 2005 6:33 pm
Quality Assurance of Chemicals
LPE Thu Sep 15, 2005 3:23 pm
Daubert Hearing on Simultaneous Impressions
Mark 685 Thu Sep 15, 2005 12:43 am
"Flyspray" and concealing prints
1L.J.S. Wed Sep 14, 2005 9:30 pm
Penny Tue Sep 13, 2005 10:00 pm
Expert difference of opinion
Iain A J McKie Mon Sep 12, 2005 8:00 pm
charlton97 Mon Sep 12, 2005 5:00 pm
Use of Cyanoacrylate on Vehicles
Bob, Holly, Barbara (DPD) Mon Sep 12, 2005 5:39 am
UPDATES ON CLPEX.com
No major updates on the site this week.
Steve Ostrowski brought us an update on the
Patterson Daubert hearing being held in Massachusetts.
Pat Wertheim brings us an update
on a recent Daubert-style challenge in San Diego County, California.
Report on an Evidence Admisibility Hearing
CN 167405 P v Pena, San Diego County, CA, August 25, 2005
by Pat Wertheim
Kelly-Frye rules (general acceptance) apply for introduction
of scientific expert testimony in states that do not use Federal Rules of
Evidence for state courts. However, since the introduction of Daubert in the
early 1990’s, some non-Daubert states have seen cases of Daubert-styled motions
filed as Frye or Kelly-Frye motions to exclude evidence under thinly disguised
Daubert criteria. This has been especially true in fingerprints since the
Daubert hearing in Federal Court in the Mitchell case in Philadelphia in July,
One such motion to exclude fingerprint evidence was argued recently in the case
of Jaime Isla Pena, charged with murder in San Diego County, California. In that
case, two palm prints from a homicide scene were identified to Pena by examiners
at the San Diego County Sheriff’s Crime Laboratory. One of the palm prints was
left in blood identified by DNA as the victim’s blood. The motion to exclude the
palm print evidence alleged that palm print identification does not have general
acceptance in the scientific community. The motion went on to list all of the
other defense complaints generally used against fingerprint evidence in Daubert
motions, especially focusing on reliability and error rate issues.
An evidentiary hearing was scheduled for August 25 and while not technically
called a Daubert hearing, for all practical purposes that is what it was. The
defense disclosed Dr. Simon Cole as their witness. I received a phone call from
Myrna Lerma, a fingerprint examiner for the San Diego Sheriff’s Department,
asking if I could help them prepare for the hearing. After discussions between
Myna, Karl Eppel (the prosecutor), and myself, I agreed to appear as an expert
for the prosecution at the hearing.
The following report was prepared from my notes of that hearing. Statements
attributed to persons and placed in quotation marks might more correctly be
characterized as paraphrasing. This was done as best I was able based on my
notes and on reviewing the tapes of the hearing. No claim is made that these
quotes are accurate in exact wording. I have tried to be as accurate as possible
in wording and have tried scrupulously to be accurate in meaning.
The hearing was held as scheduled on August 25. The defense read its motion and
called Dr. Simon Cole to the stand as its witness. Dr. Cole stated his
credentials and immediately distanced himself from the initial allegation in the
motion by stating that he does not generally distinguish between fingerprints
and palm prints. He went a step further by declaring that he accepted the
premise of uniqueness of even small areas of friction skin whether on the
fingers or palms. It was apparent from the outset that although Dr. Cole is no
friend of the science of fingerprint identification, he was not going to slant
his answers to suit the defense or to satisfy the motion to exclude the palm
print evidence, but was going to state his honest opinions and beliefs
regardless of what the defense attorney might be trying to get him to say.
Dr. Cole was well versed in the terminology of fingerprint identification and
conscientiously used terms such as “friction ridge skin” and
“individualization.” He did a very good job of explaining the distinction
between “identification” and “individualization,” then used the latter
throughout his testimony better than I did. At one point when the defense
attorney asked how many points two people can “share,” Dr. Cole quickly
corrected the attorney in stating that people cannot “share” friction ridge
details. He very obviously stays current on articles in the field and stays up
to date on discussions on the websites. I dare say that he is better versed in
that regard than many active fingerprint examiners I know.
Dr. Cole got into the meat of his testimony by stating that “fingerprint
identification is just another pattern recognition task.” In support of that
belief, he relied on the research of psychologists who have studied pattern
recognition and eyewitness identifications. He provided names like Professor
Michael Saks, Dr. David Stoney, Professor James Starrs, Dr.’s Ralph and Lynn
Haber, and others as the basis for his belief.
The main gist of Dr. Cole’s testimony came early in response to the question,
“How do we know a latent print examiner can validly identify a latent print to a
known?” Dr. Cole’s answer was, “Well, we don’t. We don’t have any studies that
show us latent print examiners can validly identify latent prints. We don’t know
how accurate they are, how often they are correct, and how often they are not.
Unless we know the accuracy rate, we don’t know what significance to attach to
Dr. Cole then compared fingerprint identification to hair analysis and to DNA
analysis by discussing the reliability studies and estimated error rates of
those disciplines, placing fingerprint identification closer to hair analysis
than to DNA. He discussed the three levels of comparison but emphasized that
there are no standards or “no established amount of detail needed. No analogous
‘random match probabilities,’ as in DNA.” There are no studies showing how much
detail is needed or how often latent print examiners are wrong.
Similarly, Dr. Cole attacked the ACE-V methodology (Analysis of the latent or
unknown print, followed by Comparison with the inked or known print, followed by
Evaluation of the two to determine if there are sufficient details for
individualization, followed by Verification by a second examiner). He charged
that there are “no studies to show it gives the right conclusion some acceptable
amount of the time.”
The defense then took the questioning in the direction of error rate to show
that it might be unacceptably high. Of course, that brought Dr. Cole into
testimony about proficiency tests and errors that have been reported by
Collaborative Testing Services (CTS). Dr. Cole was careful to stress that
proficiency tests are not validity tests and he carefully differentiated between
the two. Still, he implied that error rates reported by CTS of between 0.0% and
4.5% support his allegation that the error rate of fingerprint identification
might be unacceptably high. He went on to testify that there are no studies
showing how often a second examiner fails to verify a latent print
identification, implying that a failure to verify indicates an erroneous
Dr. Cole then directed his testimony into material from his most recent article,
“More than Zero: Accounting for Error in Latent Fingerprint Identification,”
which appears in The Journal of Criminal Law and Criminology, spring 2005
(volume 95, issue 3). In this phase of his testimony, Dr. Cole discussed
publicized cases of erroneous fingerprint identifications, going into most
detail on the recent case of Brandon Mayfield’s arrest by the FBI based on an
erroneous fingerprint identification. He also went into some detail in the cases
of Shirley McKie, David Asbury, and Stephen Cowans. Dr. Cole said these are just
the tip of the iceberg and we cannot tell how many other cases there are because
exposure of such cases is only “happenstance.” There is no set way to go about
searching for other cases.
The defense asked if there are scientists who say that latent print
identification is reliable and Dr. Cole named Andre Moennsens. Then the defense
asked if there are other scientists who say no, and Dr. Cole read a list of
eighteen names, people who had signed an amicus brief in the Patterson case in
Massachusetts. Dr. Cole excluded fingerprint examiners from the “relevant
scientific community” in assessing the accuracy or reliability of latent print
identification. He defined that “relevant scientific community” as “those who
know how to conduct validity studies, what a validity study is, what validity
is.” (The prosecution returned to this point in cross examination, as related
During his testimony, Dr. Cole characterized a “split” in the fingerprint
community over “point counting” as a methodology in contradiction to ACE-V. The
implication of this area of testimony seemed to be that there is a major ongoing
battle between proponents of two opposing methodologies. It seemed to me the
further implication was that there were roughly equal numbers of fingerprint
examiners on each side of this alleged conflict. I believe the point in this was
to try and show that there is no accepted methodology, even among fingerprint
The defense closed the direct questioning of Dr. Cole with the question of
“whether there is a difference between uniqueness and reliability?” Dr. Cole
answered, “Yes. The uniqueness of friction ridge skins is necessary but not
sufficient to establish the reliability of individualization. To draw an
analogy, I don’t think that two people have the same faces. Even identical twins
are not exactly alike. But I don’t think that eyewitness identification is 100%
reliable, or even that it’s reliable at all. There are no studies in friction
ridge skin individualization, but there are studies in eyewitness
For the cross examination of Dr. Cole, the prosecutor began with uniqueness and
elicited testimony that, “yes, all friction ridge skin is equally unique –
fingerprints, palms, soles, and toes.”
Asked if fingerprint identification couldn’t be done accurately, Dr. Cole
responded “Latent print individualization can be done accurately, it can be done
inaccurately, and it can be completely wrong.” He accepted that it may be a
reasonable or common sense assumption that latent print examiner qualifications
and experience are factors and that the size and quality of the latent print
itself are factors, but “these are assumptions that have not been studied or
Then the prosecutor went to the issue of the relevant scientific community and
asked Dr. Cole what “relevant scientific community” he was referring to. Dr.
Cole replied, “The relevant scientific community for assessing whether the
reliability of individualization has been validated.” The prosecutor asked “who
is that relevant scientific community?” and pressed for specific names. The
prosecutor asked if the list of 18 names read earlier from the amicus brief in
the Patterson case made up that “relevant scientific community?” Dr. Cole
responded that those 18 are “the majority of people who have studied the issue.”
Pressed further, he also testified that the “tens of thousands” of latent print
examiners are NOT part of the “relevant scientific community” as he defined it,
nor are the members of SWGFAST.
The judge then questioned Dr. Cole from the bench. First, he asked if there are
validity studies regarding hair comparison. Dr. Cole replied, “Yes, pretty weak
studies, pretty heavily criticized.” But they do point up a serious error rate,
much of it discovered through subsequent mitochondrial DNA. The judge then
asked, “Are there studies of the reliability of latent print examination similar
to the studies of the reliability of eyewitnesses?” Dr. Cole discussed
psychologists’ studies of reliability of eyewitness identification and repeated
that no such studies have been done for fingerprints.
The prosecutor then cross-examined Dr. Cole with one more series of questions:
Q: “Is it your opinion then that fingerprint evidence should not be admitted in
court at all?”
A: “Well, that’s a legal question. It’s my opinion that it does not meet the
admissibility standard set forth under Daubert, under Frye, or under Kelly-Frye.
So my opinion is it does not meet the admissibility standard.”
Q: “So it should not be admitted in court at all?”
A: “It should not be admitted in court as it currently stands.”
Q: “Simple question, yes or no, we should introduce fingerprint evidence or
(Dr. Cole struggles for words. Defense attorney: “Objection.” Judge: “Sustained.
You don’t have to answer yes or no. You can explain as much as you need.”)
A: “As the evidence is currently constituted, it should not be admissible in
With that, the defense rested and Dr. Cole was excused. I was called by the
prosecution to provide rebuttal to the testimony given by Dr. Cole.
After my qualifications, I began my testimony by stating my belief that ACE-V is
not a new methodology at all, but that the acronym itself has not been in use
that long. I referred to articles from the 1940’s setting out the foundation of
“ridgeology” but acknowledged that even the term “ridgeology” wasn’t around
then. But I supported my assertion by saying that the human brain works the same
today as it did in the early twentieth century. The mental process is the same
but we are always looking for a better way of articulating what we do.
I discussed “point counting” from a historical perspective dating back to Galton.
I explained that statistical studies provide support for uniqueness, just as the
biological research provides that support. I pointed out that while some state
agencies still have point minimums on the books, those agencies also allow for
exceptions to the minimums with higher degrees of verification, so that the
point minimums are not true minimums but rather quality control measures to
assure accurate identifications through enhanced verification.
I readily endorsed the type of validation studies Dr. Cole says are needed, but
pointed out that in all scientific disciplines research is an ongoing process to
refine science. I added, “You never reach a state of perfection where you can
quit doing studies into your science.” But the mere fact that more research is
being done or should be done does not automatically invalidate any science as it
is currently being practiced.
I then testified about policies and procedures for dealing with latent print
examiners who are found to have made erroneous identifications. I also discussed
IAI Resolution VII of 1973 and testified that there is no such major split in
the community of fingerprint examiners as implied by Dr. Cole’s testimony. I
pointed out that people who might be characterized as “point counters,” such as
Dusty Clark and Christophe Champod are included in the SWGFAST membership and
support the guidelines adopted by SWGFAST.
I testified that although errors are made in fingerprint identification, “in any
field of human endeavor, there exists the potential for human error,” and the
fact that errors are made does not shake my confidence in the reliability of
Under cross examination by the defense attorney, I testified to my personal
experience in teaching over 80 classes in comparison techniques with 1500 to
2000 students that erroneous identifications are rare, although I admitted I had
never calculated an error rate nor published my findings. I mentioned that
studies of the kinds suggested by Dr. Cole are underway, but admitted that none
of these studies have been completed, peer reviewed, or published yet.
The defense also questioned me on “confirmation bias,” which I explained is a
very real concern. I explained that awareness of the problem is the first step
in avoiding its pitfalls, but I don’t know how to eliminate it.
The defense attorney asked me if I didn’t think fingerprint examiners should
tell the jury about errors and the potential for mistakes. I answered that of
course they should, but that it was his job to bring that out by asking those
questions at trial.
On redirect, the prosecutor asked me about the studies I had testified to on
cross-examination. I went into a little detail on the preliminary results of the
error rate study presented at the IAI conference in Dallas by Glenn Langenburg
and Kasey Wertheim, which showed a 0.034% error rate on training exercises. But
I stressed the limitations of that study and the inappropriateness of applying
it to case work.
The prosecutor then questioned me about “abandonment” of the “point standard.” I
replied that “it’s not an issue of people in gray uniforms and people in blue
uniforms fighting a civil war for control here. The whole issue of points, now,
in today’s environment, since I’ve been in this business, is to validate
statistically what we conclude biologically as far as uniqueness.”
The prosecutor and defense attorneys then engaged in re-cross, re-re-direct,
re-re-cross, etc., swapping questions one by one with me. At one point, the
defense attorney commented, “So you’re saying we shouldn’t just ‘throw the baby
out with the bath water’?” – “Exactly!” I responded.
After I was excused, the attorneys gave their closing arguments. The defense
stated basically that uniqueness of friction ridge skin is not at issue, “it’s
the reliability of the identification” that cannot be proven. The prosecution
responded that the challenges “are spurious, made by a historian/social
scientist, not by someone within the scientific community.”
After a brief recess, the judge returned with his ruling. He said that he saw
the arguments as basically encompassing two issues. First, is Kelly applicable?
And second, the question of reliability. He pointed out that fingerprint
comparison/identification does not rely on “the same data collection process as
DNA” and referred to the struggle with multiple variables in latent print data
The judge then surprised both the prosecutor and me with the comment, “I think
this really is sort of akin to eyewitness ID. This is not a truly scientific
comparison, but is akin to tool marks and bite marks. But the variables in
reliability don’t render it inadmissible, all those things that are comparative
analysis as opposed to a truly scientific analysis. There is science to this,
but the analysis is not as scientific. It’s visual.” He went on to say that he
didn’t think Kelly really applies.
The judge closed by addressing the defense attorney. “I’m going to deny the
request to exclude. I think, as Mr. Wertheim said, all you really need to do is
ask the questions about there are, in fact, errors, variables, error rate. Those
are all fair game for cross examination. And there you are.”
So we (the prosecutor and I) consider it a victory. The palm print
identifications will be admissible at trial just as they would have been before
this motion and hearing. The trial itself begins around the end of October and
the palm print identifications are anticipated to be presented during the second
week of November. It would appear the defense attorney and prosecutor both have
had a good practice run at the type of questioning that will dominate the
fingerprint testimony during the trial.
And I might add that Dr. Cole and I have had a good practice run for our
upcoming debate at the New England Division IAI conference the first week of
November. Hope to see you there!
Feel free to pass The Detail along to other
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latent print examiners, BY latent print examiners. There are no copyrights on
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Until next Monday morning, don't work too hard or too little.
Have a GREAT week!