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Monday, April 13, 2009

 
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Breaking NEWz you can UzE...

by Stephanie Potter

Recycled plastics hide fingerprints
Times of India – India 04-07-09
Recycled plastics, which are good for the planet, are giving CSI teams a tough time because fingerprints are difficult to be retrieved from them. ...

Prosecutors in Griffin case: Claims hearsay, inadmissible
StandardNet - Ogden, Utah, USA 04-09-09
Now the motion for the new trial is riding on Henderson's fingerprints and the recollections of Henderson's former co-workers, including the original ...

Two Teens Arrested In Rash Of Business Burglaries
North Fort Myers Neighbor - North Fort Myers, FL, USA 04-09-09
Although there were no eyewitnesses, detectives meticulously processed the crime scenes and obtained numerous high quality fingerprints. ...

Con man who tried to mar his fingerprints admits fraud
Philadelphia Daily News - Philadelphia, PA, USA 04-10-09
By MICHAEL HINKELMAN A con man who tried to distort his fingerprints after he was arrested in Philadelphia in 2007 pleaded guilty in federal court yesterday ...

Parker County murder victim ID'd, 23 years later
Fort Worth Star Telegram - Fort Worth, TX, USA 04-10-09
The identification was recently made after authorities matched fingerprints taken from the unidentified body to those of Kelsey, a known prostitute who had ...

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Last week

We looked at an editorial about perceptions of forensic scientists who testify for defendants.
 

This week

Lori Haines and Eric Sahota bring us a report on the ASU conference in regards to the NAS report on Forensic Science.

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Together we Move Forward


A LION used to prowl about a field in which Four Oxen used to dwell. Many a time he tried to attack them; but whenever he came near they turned their tails to one another, so that whichever way he approached them he was met by the horns of one of them. At last, however, they fell a-quarrelling among themselves, and each went off to pasture alone in a separate corner of the field. Then the Lion attacked them one by one and soon made an end of all four.

-The Four Oxen and the Lion - Æsop. (Sixth century B.C.)

 

Two weekends ago, politics brought together a group of people that otherwise would not have met. This story began in 2005 when Congress commissioned the National Academies of Science to assess the needs of the forensic science community and make recommendations for “maximizing the use of forensic techniques” and “ensuring quality and consistency in the use of forensic techniques”.  Their efforts culminated in a report entitled “Strengthening Forensic Science in the United States, A Path Forward” released in February.   The highly anticipated report sparked intense controversy and debate.   In furtherance of this discussion, law professors, judges, criminal attorneys, lab directors, and forensic scientists came together in the Great Hall at the Sandra Day O’Connor School of Law at Arizona State University to discuss the report at a conference entitled “Forensic Science in the 21st Century”.  Featuring a keynote address by Judge Harry T. Edwards, from US Court of Appeals DC Circuit and co-chair of the NAS committee, the conference consisted of a series of panel discussions related to the future of forensic science.

 

It’s not a coincidence that ASU was the sight of such an event.  The Sandra Day O’Connor School of Law is home to several well known critics of forensic science including Michael Saks, Jay Koehler, and David Kaye. These legal scholars were joined by many of their peers including Jennifer Mnookin of UCLA, Simon Cole and William Thompson of UC Irvine, Michael Risinger of Seton Hall University,  Paul Giannelli, of Case Western Reserve University, and Peter Neufeld of The Innocence Project.

 

To balance out the program, this cast of critics was joined by academics from other disciplines including Constatine Gatsonis, a biostatistician and co-chair of the NAS committee, Christophe Champod, a professor of forensic science from the University of Lausanne, and Itiel Dror a cognitive scientist based at the University College of London.  Forensic scientists were represented by Barry Fisher, the retired director of the Los Angeles County Sheriff’s Department Crime Laboratory, Jay Siegel the director of the Forensic and Investigative Sciences Program at Indiana University-Purdue University, Thomas Bohan, President of the American Academy of Forensic Sciences, Henry Lee, Chief Emeritus of the Connecticut Department of Public Safety Division of Scientific Services, and Chris Hassell, the director of the FBI Laboratory.   Many other speakers participated in the conference. A complete list of presenters and topics can be found at http://lst.law.asu.edu/FS09/index.html.

 

While the conference featured a notable list of speakers, it was the composition of the audience that merits attention.  Though no official census was taken, by the authors’ account, the audience was a diverse group that included practicing attorneys, scholars of science and law, law students, forensic lab directors and quality control managers, public sector forensic scientists, private practice forensic experts, and at least one police officer. Many practicing latent print examiners were present as well as several members of SWGFAST and at least one board member of the IAI.

 

The diverse mix guaranteed that the conference was not without its share of tension filled moments, often punctuated with uncomfortable silences and nervous laughter.  This was not surprising given the personalities in the room and the topics at hand.  In spite of the social fireworks, many things about the conference were unremarkable.  Judge Edwards offered a speech that echoed his prior testimony to the Senate Judiciary Committee. The critics of forensic science presented material covered extensively by their published writings. But permeating this “business as usual” environment were two themes worth discussing further. First, forensic science is a key component of the criminal justice system and cannot be examined critically without also examining the justice system it serves. Secondly, forensic scientists and lawyers cannot wait to be rescued by the academics or the proposed National Institute of Forensic Science.  Instead they must be proactive and work to get their respective houses in order.  Housekeeping duties in the legal community, however, have yet to be adequately addressed. 

 

The most telling account of the state of the criminal justice system came from Judge Edwards.  He delivered a keynote address that reflected the substance of the NAS report.  While the material may be familiar, it is useful to look at a few passages in detail.

                

 “The work of the forensic science community is critically important in our system of criminal justice.  Forensic science experts and evidence are routinely used in the service of the criminal justice system.”

. . .

“Unfortunately, the adversarial approach to the submission of evidence in court is not well suited to the task of finding “scientific truth”.  The judicial system is encumbered by, among other things, judges, lawyers, and jurors who generally lack the scientific expertise necessary to comprehend and evaluate the forensic evidence in an informed manner; defense attorneys who often do not have the resources to challenge prosecutors’ forensic experts; trial judges (sitting alone) who must decide evidentiary issues without the benefit of judicial colleagues and often with little time for extensive research and reflection; and very limited appellate review of trial court rulings admitting disputed forensic evidence.”

. . .

“And lawyers and judges should not be counted on to fix the science problem.  What we need is for the forensic science community to improve so that it better serves the needs of justice.”

 

As Judge Edwards stated in his testimony before the US Senate Committee on the Judiciary, “ . . . the [NAS] report offers no proposals for law reform.  That was beyond our charge.”  Whether by accident or by design, the absence of meaningful commentary on the legal community’s role in assessing scientific evidence suggests that forensic scientists bear all the blame for letting weakly supported evidence and exaggerated conclusions into the courtroom.  (The notion that some forensic disciplines are weakly supported and offer exaggerated conclusions is a sentiment expressed by the NAS committee).  Likewise the NAS Report and Judge Edwards suggest that it is the responsibility of the forensic science community in partnership with the academic institutions and with the support of federal funds to address the “science problem” and serve justice.  Unfortunately, even with strong federal oversight (such as NIFS), the problem of science in the court room won’t be solved.

 

There is blood on the courtroom floor and forensic scientists can’t mop it up alone.  The recommendations made in the NAS report do not address the inability of judges and lawyers to comprehend or evaluate scientific evidence.  Quite simply, it is a mistake to suggest that better science is a substitute for a well informed legal defense.  The legal community must also reexamine the way they approach forensic testimony.  Ultimately, criminal attorneys are in the driver’s seat deciding which questions to ask and in some cases circumscribing the testimony of forensic experts to include only the opinions that support their case.  All parties to the justice system must be willing to take responsibility, support change, and accept scientific input.  In some venues, forensic scientists are excluded from teaching at Judicial Colleges that relegate scientific training to legal scholars.  But in many cases, these legal scholars provide instruction based on literature reviews rather than practical research.  Thus judges are prevented from engaging in a meaningful dialogue on scientific issues.  If forensic science is critical to the administration of criminal justice, why does judicial and legal education lack any meaningful scientific training?

 

Indeed the institutional restructuring suggested by the NAS will bring more science into the courtroom and not less.  Funding further scientific study will lead to new and innovative techniques, the application of statistics to forensic methodology and error rates, and the consideration of cognitive issues such as contextual bias.  True, new data and theories will undergo rigorous peer review and validation before entering the courts, but this does not preclude the need for judicial scrutiny and vigorous cross examination by defense attorneys.  While the ASU conference reflected on the NAS report and the steps to be taken in addressing forensic issues to better serve justice, it is also imperative to examine the relationship between forensic science and the law with the goal of making the criminal justice system balanced and effective.

 

Certainly the legal system has room for improvement, but what did the conference say regarding forensic science itself?  Dr. Champod and Dr. Gatsonis suggested ways to address issues of validity, reliability, and accuracy.  In his presentation, Dr. Champod made a direct and urgent call to the forensic science community to abandon unnecessary claims like those of “individualization”.  In their place, he suggests conclusions based on likelihood ratios a transparent and quantifiable metric that is as persuasive as it is powerful.  Likewise Dr. Gatsonis illustrated some simple but effective studies that can address many issues associated with examiner accuracy.  These two scholars should be commended for their efforts.  Unlike any other discussions at the ASU conference, they alone offered concrete and progressive ideas in furtherance of “good science”. 

 

Scientists like Champod and Gatsonis are showing us the way forward, but they cannot carry us.  As forensic scientists, lawyers, and policy makers, we must do our share of the heavy lifting.  The time has come to acknowledge both the value and the limits of our current state of knowledge and become active partners in the growth process.  The NAS report is before us, but no decisions have been made.  No policies have been set.  This is an opportunity to craft sound policies and standards to better serve the needs of forensic science in perpetuity.  If we don’t participate, if we instead maintain the status quo until forced to change, we leave critical scientific and policy decisions to a vocal minority who may not represent the sentiments of the greater forensic science community.  If we abdicate our voices, we’re left little recourse save to grapple with the decisions that will be made for us instead of with us.

 

The ASU conference was remarkable in that an unprecedented number of forensic scientists, lawyers, and academic scholars gathered together for discussion and debate.  This may be the first time a mixed group of this size has ever met, but it cannot be the last.  Seeing a diverse group of professionals coming together to consider issues of common concern offers up a new hope for the future.  Optimistically, this conference was more than an instinctive reaction to the sting of the NAS report but the beginning of a sincere and earnest dialogue.  For more than a decade forensic examiners and legal scholars have sparred over issues of scientific practice and legal admissibility.  After a long and sometimes tortuous journey, we have come to a crossroads.  But we don’t stand alone.  And together we will move forward.

 

Questions, comments, and corrections may be addressed to the authors at HainesSahota@gmail.com

Lori Haines, Forensic Scientist

Eric Sahota, Forensic Scientist

 

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