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"There is information out there that flies in the face of what [Cole] says," adds Joe Polski, secretary of the International Association for Identification (IAI). "He's just chosen to take the path he has." The rare mistakes that do occur, he says, are due to human frailty rather than any problem with the method. To discount the entire science because of a few foul-ups, then, is akin to dismissing aviation because a plane crashes, or junking mathematics when an eighth grader bungles a quadratic equation.
Cole, who shrugs off the personal attacks as a substitute for reasoned arguments, regards that defense with skepticism. "I think that the fingerprint community did some clever things about managing errors," he says. "There was this idea that the error would always be attributed to the practitioner and not to the method, and therefore the method is still infallible even if there's an error." In the FBI survey referred to in Pollak's January opinion, for example, the agent in charge offered a range of excuses for the nine examiners who failed to identify the prints, from "inexperience" to "insufficient time" to "attitude toward survey was not as serious as it should have been."
Despite Pollak's hedge, fingerprint experts are aware that their trade is about to come under unprecedented scrutiny. Defense bar celebrities Peter Neufeld and Barry Scheck have called on the National Institute of Justice to fund scientific studies of the technique, and next month the IAI will hold a conference at the University of West Virginia to hash out how forensic scientists should deal with the challenges. Faigman believes the controversy will compel the Justice Department to "go out and do what they should have done 100 years ago, which is collect data on the empirical validity of fingerprint technology. And my guess is that, at some level, it will be demonstrated to be valid. And it'll probably have some weaknesses, too."
Such studies could take years to complete. For people like Robert Hood, however, the fingerprint debate will have a more immediate payoff. At a pre-trial hearing in mid January, Grohs asked the court to rule out the prints. The controversy's big guns were presentCole traveled to Colorado to testify for the defense, while the state called Stephen Meagher, chief of the FBI's fingerprint unit. The judge ruled the evidence admissible, but a mistrial was declared soon after on unrelated grounds. For the retrial, Grohs hopes to enlist the aid of James Starrs, a George Washington University law professor infamous for exhuming the corpses of Jesse James and Meriwether Lewis; he's also a noted fingerprint skeptic who has derided the technique as a "miasma."
Grohs will be on the lookout for jurors willing to consider the fallibility of fingerprintsa difficult task, given the number of Americans weaned on Matlock reruns and Agatha Christie mysteries. "We talked to [the first trial's jurors] just about fingerprint evidence, and it was hard to get them to open up," says Grohs. "They'd say, 'Well, if you have a fingerprint, then he did it.' But when we'd ask why they thought that, they'd say, 'I don't know, I guess I've seen it on TV, [or] in the movies.' Does that make it true?"
The predisposition to trust fingerprints could theoretically render any scientific attack moot. Defense experts may attack the technique as flawed, but jurors long exposed to courtroom dramas might tune out the criticism. As Arizona State's Saks puts it, if "the government expert gets up there and puts up his chart and says, 'This point matches this point, and that point matches that point' . . . then jurors will be very likely to say, 'Well, that's a match then.' "
For the sake of defendants whose freedom hinges on the veracity of some smudges, Grohs hopes that isn't the case. "Everyone's going to have to keep fighting, fighting, fighting before we get people to budge," she says. "It's kind of hard to overcome 100 years of babble."
Brendan I. Koerner is a Markle Fellow at the New America Foundation.