As the Whorl Turns

Long the Difference Between Guilt and Innocence, Fingerprints Themselves Are on Trial

When Daubert entered the books, several law professors balked at the dearth of formal studies and lack of an error scale. They were especially troubled by the use of "latent" fingerprints, which are recovered with the aid of chemicals or ultraviolet light. Latent prints are typically faint or incomplete, and thus tricky to match to an immaculate "rolled" print taken in a police station. In a series of tests conducted by a company called Collaborative Testing Service from 1995 to 2001, misidentification rates for latent prints ranged from 3 to 20 percent.

Prominent legal minds called for fingerprints to be subject to the same scientific inquiry as DNA, the validity of which has been proven time and again in laboratory studies. "A vote to admit fingerprints [as evidence] is a rejection of conventional science as the criterion for admission," wrote Michael Saks, an Arizona State University law professor, in 1998. "A vote for science is a vote to exclude fingerprint expert opinions."

Inspired by such rhetoric, defense lawyers launched a slew of fingerprint challenges, beginning in 1999. All were curtly rejected. "The reaction I got was 'You've got to be kidding. How could anyone think there is any viable challenge here?' " says Michael Burt, a public defender in San Francisco who tried to exclude fingerprints that implicated a client named Robert Nawi. "I think the courts felt this was way too novel to really take seriously."

illustration: Jack Black

In a Brooklyn case, New York v. Hyatt, during which the defense tried to use Cole as an expert witness, the court was coldly dismissive: "To take the crown away from the heavyweight champ you must decisively out-score or knock him out. Going 12 rounds will not do. What Dr. Cole has offered here is interesting, but too lacking in scientific method to even bloody the field of fingerprint analysis as a generally accepted scientific discipline."

David Faigman, a professor at the University of California's Hastings College of Law, is baffled by such logic. He recalls one case, U.S. v. Havvard, in which the court concluded that fingerprints satisfied Daubert because they'd been used in trials for so long. "Anybody who has even a minimal amount of scientific training wouldn't think that the adversarial process satisfies the testing requirement that Justice Blackmun quoted," says Faigman. "Testing means clinical testing, proficiency testing, double-blind testing. . . . The adversarial process is not about empirical testing—it's a competition."

By Plaza, fingerprinting had weathered nearly two dozen challenges unscathed. But Judge Pollak was less than impressed with the government's proof of fingerprinting's infallibility. He noted that in a previous case, U.S. v. Mitchell, an FBI survey of state crime labs had "offered scant support for the accuracy of fingerprint identification. Nine of the 34 responding agencies did not make an identification in the first instance." He also disapproved of the paucity of studies he deemed adequately peer reviewed.

Pollak was careful to emphasize that he did not wish to discredit fingerprinting entirely—"putting at naught a century of judicial acquiescence in fingerprint identification processes would be unwarrantably heavy-handed." In his January decision, he ruled that fingerprint examiners could not present "their 'opinion' that a particular latent print is in fact the print of a particular person." That would have meant no more climactic courtroom scenes in which an examiner definitively states that, yes, the print found at the crime scene belongs to the defendant.

But in his March 14 reversal, Pollak softened his stance considerably. He still knocked the FBI proficiency tests that supposedly demonstrate the accuracy of fingerprinting, and he still refuses to characterize fingerprinting as a science. Nevertheless, he concluded that he was "not persuaded that the courts should defer admission of testimony on fingerprinting . . . until academic investigators . . . have made substantial headway on a verification and validation research agenda." In other words, the burden lies with fingerprint critics to back up their doubts.

Defense attorneys are puzzled by the flip-flop, since the original edict merely put fingerprints on par with other brands of expert testimony. "If a psychologist testifies, the psychologist has to say, 'It's my opinion based on a reasonable degree of medical certainty,' " says public defender Grohs. "And in DNA they have data banks, and they do probability—they'll say, 'The probability of this being from somebody else is one in 20 billion,' or whatever. So why is it that fingerprint experts have been allowed to say, 'This is a match'? "

Forensic scientists, of course, were aghast at Pollak's initial ruling, which they ascribed to the defense team's skewing of evidence against the technique's reliability. They still question whether Pollak—and other well-educated judges—may harbor an ingrained bias against fingerprint examiners merely because they lack Ivy League pedigrees; in his initial opinion, the former Yale Law School dean noted that "even those who stand at the top of the fingerprint identification field . . . tend to be skilled professionals who have learned their craft on the job without any concomitant advanced academic training. It would thus be a misnomer to call fingerprinting examiners a 'scientific community' in the Daubert sense."

The experts' most venomous attacks, however, have been reserved for Cole, whom forensic scientists regard as a publicity-seeking dilettante bent on marketing Suspect Identities. They relish pointing out that the bookish Cole has zero formal training in either forensic science or law enforcement. "[Cole's] book is comprised mostly of historical accounts, related in a manner that, if anything, demonstrates the superficiality of the author's understanding of that about which he writes," wrote Andre Moenssens, a law professor at the University of Missouri at Kansas City, in an essay condemning Pollak's first opinion as "unwarranted."

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