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Monday, October 22, 2007

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

Voters to Decide Fate of El Paso's New Crime Lab EL PASO TIMES, TX - Oct 20, 2007 ...crimes in El Paso might be solved faster if voters give a thumbs-up on the Nov. 6 ballot...

Police Crack a 54-year-old Cold Case... DAILY MAIL, UK - Oct 19, 2007 ...then refused to reveal the name of the killer for fear of offending the criminal's family.

Lotz Accused Cross-examined in Court  MAIL & GUARDIAN, So. AFRICA - Oct 18, 2007 ...Fred van der Vyver was questioned closely on on how he came to know that his student-girlfriend Inge Lotz had been stabbed...

China to Open First Fingerprint Museum CHINA.ORG - Oct 16, 2007  ...featuring more than 1,000 items
with pictures and displays for the visitors...

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Recent CLPEX Posting Activity
Last Week's Board topics containing new posts
Moderated by Steve Everist

Give us your opinion
RJ Hillman 138 Sat Oct 20, 2007 9:45 pm

Daubert case?
Pat A. Wertheim 161 Sat Oct 20, 2007 8:41 pm

Statistics and Misidentifications - The weeks Detail
Michele Triplett 25531 Fri Oct 19, 2007 6:57 pm

Raise The Banner
Charles Parker 577 Thu Oct 18, 2007 7:59 pm

Are you a LEO.gov user?
Steve Everist 119 Thu Oct 18, 2007 2:26 pm

Fingerprints and Intelligence
Charles Parker 503 Thu Oct 18, 2007 2:15 pm

SWGFAST, ASCLD-LAB, et al
Ernie Hamm 345 Thu Oct 18, 2007 12:11 am

ASCLAD Related question
Alphabrit 2144 Wed Oct 17, 2007 11:46 pm

ULW and IAFIS
Charles Parker 348 Tue Oct 16, 2007 3:29 pm

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

 
UPDATES ON CLPEX.com


Updated the Fingerprint Interest Group web page with FIG # 18.

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Last week

we looked at a recent article in Forensic Magazine on the movement from film to digital imaging by Steve Scarborough.

This week

we look at the following:

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Conclusion of Circuit Court Judge Susan Souder - Grants Motion to Exclude Testimony of Forensic Fingerprint Examiner - Capital Murder Case: State of Maryland v. Bryan Rose

Highlights from the 32-page Decision Paper
http://www.clpex.com/Information/STATEOFMARYLAND-v-BryanRose.doc
(http://www.clpex.com/Information/STATEOFMARYLAND-v-BryanRose.doc)

Pending before the Court is Defendant’s Motion to Exclude Testimony of Forensic Fingerprint Examiner and Request for a Frye Hearing (paper 100000, “Motion to Exclude”). The State opposed the Motion. The Court granted the request to have a Frye hearing and the hearing was held May 29 and 30, 2007. Each side presented testimony of one expert to support its position. For the reasons set forth herein, the Court will grant the Motion because the State did not prove in this case that opinion testimony by experts regarding the ACE-V method of latent print identification rests on a reliable factual foundation as required by MD Rule 5-702.

Case Summary

The instant case is very briefly described as follows based on the State’s summary of certain proffered evidence in connection with another motion. A college student parked his car one day. Some days later, the student cannot find his silver Dodge Intrepid and reported it stolen. The Intrepid was listed on a “hot sheet” of stolen cars sought by the Regional Auto Theft (“RAT”) police detectives.

On Tuesday, January 5, 2006 at approximately 10:00 a.m., two RAT detectives spotted the Intrepid. They attempted to stop the Intrepid; a chase ensued. The Intrepid got away. The driver and passenger in the Intrepid cannot be identified except as black males.

At approximately 10:30 a.m. the same day, the Intrepid was seen in the Security Square Mall parking lot next to the Victim’s Mercedes. A struggle ensued. The Victim was shot by a black man who got into the Intrepid which sped away. No one can identify the driver or passenger except as black males. The abandoned Intrepid was eventually located at the Owings Mills Metro.

At first, no latent fingerprints were identified by the Crime Lab. Homicide detectives suggested names of suspects to the Crime Lab. The known prints of the suspects were compared to the latent prints recovered. Eventually, a couple of latent prints on the cars were identified as those of the Defendant. The identification by one Crime Lab Technician was provided to a second Crime Lab Technician to “verify.” She agreed with the identification of her co-worker. These opinions, that the latent print(s) on the cars match Defendant’s prints, appear to be the heart of the State’s case.
Such a summary cannot do justice to the full presentation of evidence by the State, nor to the cross-examination or presentation of adverse evidence by the Defense. No facts concerning this case have been determined by the Court.

Both sides have requested that the Court determine the issue of reliability of the ACE-V methodology, and consequent admission vel non of the latent fingerprints, without reference to the specific fingerprint evidence in this case. Despite having held a hearing on the case specific fingerprint evidence, the Court has acquiesced in the parties’ requests that the Court determine the admissibility of latent fingerprint identification opinions without consideration of the case specific information presented.

Issue Presented

Whether ACE-V is a methodology which establishes the reliability of the general practice of latent fingerprint identification.

Defendant contends that ACE-V is not a methodology which has been subjected to scientific testing. As a result, the error rate in latent print identifications is unknown. Absent an error rate, reliability of the methodology is unproven. A fundamental problem, according to Defendant, is that the subjective comparisons in ACE-V involve psychological phenomena known as “confirmation bias.” Further, Defendant argues that the “standards” for latent fingerprint identification are inadequate.

Discussion

MD Rule 5-702 addresses the testimony of expert witnesses at trial. The Rule provides that expert testimony, in the form of an opinion or otherwise, may be admitted if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the Rule requires the court to consider whether the witness is qualified as an expert by knowledge, skill, experience, training, or education . . . the appropriateness of the expert testimony on the particular subject, and . . . whether a sufficient factual basis exists to support the expert testimony.

In short, the court must determine whether the opinion testimony of the expert rests on a reliable foundation.
Maryland adheres to the standard set forth in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), overruled by Daubert v. Merrell Dow, 509 U.S. 579 (1993), for determining the admissibility of scientific evidence and expert scientific testimony. Reed v. State, 283 Md. 374, 389 (1978). Under the Frye – Reed test, a party must establish first that a technical or scientific method is reliable and accepted generally in the scientific community before the court will admit expert testimony based upon the application of the questioned technique. Montgomery Mutual Ins. Co. v. Chesson, 399 Md.314, 327 (2007), citing Wilson v. State, 370 Md. 191, 201 (2002).

Maryland appellate courts have noted that before the testimony based on the questioned technique may be admitted into evidence, the reliability must be demonstrated. Wilson, 370 Md. at 201. The basic “gate-keeping” obligations imposed by the appellate courts on trial courts applies not only to “scientific” testimony, but all expert testimony. Conaway v. Deane, ___ Md. ___, n.57 (Sept. 18, 2007) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999). Kumho extended Daubert to non-scientific fields. In this category, for example, are the fields that are based on observations, such as latent fingerprint suspicion not traditional sciences such as land valuation, drug terms, agricultural practices. United States v. Hines, 55 F.Supp.2d 62, 66 (D. Mass. 1999) (concluding that expert can testify to similarities or dissimilarities between handwriting samples but not render identification).

The State is correct that fingerprint evidence has been used in criminal cases for almost a century. While that fact is worthy of consideration, it does not prove reliability. For many centuries, perhaps for millennia, humans thought that the earth was flat. The idea has a certain intuitive appeal. Indeed, there still exists a Flat Earth Society for people who cling to the idea the earth is not an orb. Armstead, supra at n.26. But science has proved that the earth is not flat; and, it is the type of fact of which a court can take judicial notice.
Maryland cases accepting latent print identifications in the past were not presented with proof of erroneous identifications which refute the infallibility claimed by the State’s expert in this case. Mr. Meagher has stated that the FBI testifies to “a 100 percent certainty that we have an identification.” By that, he meant that FBI agents do not go in court and say “I believe it’s a match with 80 percent certainty or 90 percent certainty.” Mr. Meagher claimed that there is no error rate for ACE-V. This testimony was not credible.

The 100 percent certainty expressed by Mr. Meagher in this case, as well as in other forum, and others has been persuasively questioned by some academics and defense counsel. The absolute certainty has been proved to be wrong in the past. The Mayfield case is not the only erroneous identification. See Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) and incidents mentioned in Defendant’s motion.
The Court does not by this conclusion suggest that latent fingerprint identification could never be admissible in another case. Future admissibility particularly may occur since the ACE-V methodology is changing, and as technology continues to improve.

The long history of use of fingerprint identification does not by itself support the decision to admit it. Courts began admitting fingerprint evidence early last century with relatively little scrutiny. Relying on precedent, later courts simply followed. The precedent of prior admission, rather than exacting scientific scrutiny, led to its universal acceptance. United States v. Crisp, 324 F. 3d 261 (4th Cir. 2003) Michael, Jr. dissenting, citing Cole (noting that fingerprint evidence 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”) (citations omitted).

Other forms of evidence in vogue when fingerprinting began to be commonly used were generally believed to be more credible. For example, experts in the Bertillon technique took minute measurements of the human body to identify criminals. The Bertillon technique is considered absurd today. See People v. King, 266 Cal.App.2d 437 (1968) (noting that we should heed the “tragic lessons of the Bertillon system”).
Fingerprinting rose in popularity because prints could be taken and analyzed quickly by those with little training or experience. It emerged as a method of identification not superior to anthropometry (the Bertillon technique), but quicker and cheaper. Crisp, supra. The long history of use does not itself establish its reliability.

While the ACE-V methodology appears amenable to testing, such tests have not yet been performed. United States v. Sullivan, 246 F.Supp.2d 700, 704 (E.D. Ky 2003) (finding expert’s testimony sufficiently reliable under Daubert). The principles underlying ACE-V, that is the uniqueness and permanence of fingerprints, cannot substitute for testing of ACE-V. There have been no 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. Id.

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.

The Comparison of known exemplars is not at issue. In any event, while Defendant has argued a number of reasons why general acceptance should be discounted, Defendant has not challenged the notion that latent fingerprint identifications have been generally accepted. Rather, Defendant’s contention is that the reliability of such identifications have not been proved since they have not been subjected to scientific testing.
In this case, as in others, the State introduced evidence that fingerprint experts take and pass proficiency tests. There is no basis for a conclusion that these tests reflect real world conditions. Crisp, supra (citations omitted).

Mr. Meagher incredibly testified that there is no error rate in ACE-V as it is an infallible methodology. He attributed all erroneous identifications to examiner error in applying the methodology. Mr. Meagher was neither credible nor persuasive in this regard. Without impartial testing, however, whether or not the methodology is infallible is unknown.

An error rate, or lack thereof, must be demonstrated by reliable scientific studies, not by assumption. Where tests have attempted to imitate actual conditions, error rates by fingerprint examiners have been alarmingly high. Crisp, supra, citing Epstein:

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. An error rate that runs remarkably close to chance can hardly be viewed as acceptable under Daubert.

The State did not establish in this case that there are any objective or universal standards that govern the application of the ACE-V technique that would establish its reliability. Mr. Meagher asserted that there were standards, but the degree of similarity required to individualize prints is left up to each individual examiner. Forensic experts argue: “[a]ny unbiased intelligent assessment of fingerprint identification practices today reveals that there are, in reality, no standards.” Crisp citing Stoney, supra.

Mr. Meagher testified that there are no minimum number of points required for a match. The trend away from a minimum-point requirement may not be unreasonable because the requirement is not based on scientific study. Epstein (quoting a fingerprint expert as saying that the point system is based on “educated conjecture”). The criteria for absolute identification are ill-defined and little more than “the product of probabilistic intuitions widely shared among fingerprint examiners, not of scientific research.” Stoney; see also Cole.

Examiners are supposed to reject as matching a pair of prints that contain even one dissimilarity according to Mr. Meagher. Yet the OIG Review described how the experts in Mayfield believed the prints matched and so they explained away the differences rather than discounting the match. See also Epstein, supra at 640, cited in Crisp at 275. Nor is Mayfield the only proven case of an erroneous identification. See, e.g., Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) and other incidents of erroneous identifications cited in Defendant’s Motion to Exclude.

The safety check in ACE-V is supposed to be the Verification phase. Any verification which does take place is not truly independent, since the reviewer is usually a colleague or supervisor in the same Forensic lab who is told of the first examiner’s identification. Moreover, the reviewer is provided only the latent and the exemplar, that is the “match” to consider. Mr. Meagher’s testimony that this procedure is adequate to avoid erroneous identification was neither credible nor persuasive.

In the only case to cited by either side to have considered the OIG Review, the trial court determined that ACE-V is a reliable method; but, its accuracy is dependent on accurate application by the practitioner. State v. Rockingham, supra. In that case, the New Hampshire trial court held that there was an insufficient basis for the court to find that ACE-V principles were reliably applied. Consequently, the court refused to allow the State’s expert to testify to her opinion regarding a single latent print recovered because she had not documented her examination and there had been no “blind” verification.

Conclusion

In conclusion, the proof presented by the State in this case regarding the ACE-V methodology of latent fingerprint identification showed that it was more likely so, than not so, that ACE-V was the type of procedure Frye was intended to banish, that is, a subjective, untested, unverifiable identification procedure that purports to be infallible. After impartial scientific testing, the establishment of an error rate and of objective criteria which when applied, are documented and can be verified, it may be that latent print identification opinion testimony as offered in this capital case will qualify for admission under Frye-Reed. The State did not meet that burden in this case and, consequently, shall not offer testimony that any latent fingerprint in this case is that of the Defendant. In this case, the State did not show by a preponderance of evidence that a fingerprint examiner can reliably identify a fingerprint to an individual to the exclusion of all others using the ACE-V method.


Date:_______________________ _______________________________
Judge Susan Souder

(un-signed, un-dated)

Copies sent to:

Jason League, Esq.
Lisa Dever, Esq.
Assistant State’s Attorneys
M.S. 3506

Paul Bertram DeWolfe, Jr., Esq.
District Public Defender
199 E. Montgomery Avenue, Ste. P
Rockville, MD 20850

Jennifer Aist, Esq.
Patrick Kent, Esq.
Assistant Public Defender
M.S. 3102


Entire Brief:

http://www.clpex.com/Information/STATEOFMARYLAND-v-BryanRose.doc
(http://www.clpex.com/Information/STATEOFMARYLAND-v-BryanRose.doc)

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