When we were in grade school, we were taught that no two snowflakes were, are or ever could be the same. For the skeptical among us, that required a gargantuan leap of faith, all things considered, including the number of uninvestigated snowflakes, past, present and future. Whether our questioning was serious or just disruptive, the response—from teachers who had little more actual knowledge than we did—was frequently that we should just accept what the scientific authorities had determined.

When we left school and entered real life, we found similar situations in our courts, the principal difference being that live scientists were doing the talking, having discovered the lucrative avocation of expert witnessing. For decades, judges, juries and journalists sat in awe of such knowledge so authoritatively delivered.

How could one even question people with that many advanced academic degrees? Much of the testimony was, of course, righteous–the best efforts of certified smart people to explain scientific findings in the most contentious of venues. But…expert witnesses appeared on behalf of one side or the other. Sometimes their findings were in the eyes of the beholder, and that which was presented as 20/20 vision was often facilitated, shall we say, by some rather thick lenses.

Comes then the U.S. Supreme Court, attempting, as is frequently required, to establish or clarify standards. In several cases, starting with Daubert v. Merrell Dow Pharmaceuticals in l993, the Court has basically held that judges are required to examine the reliability of expert testimony before allowing it to be considered in court and that experts cannot present evidence as a scientific certainty unless that reliability has been tested, including the error rate of the tests. These cases were civil, but the Supreme Court rulings apply to criminal prosecutions as well.

The proclaimed unique structures of snowflakes are rarely introduced in court. Fingerprints are and have been for almost a century, presented as virtually infallible evidence when applicable. However, following a recent ruling by a respected federal judge, the presentation of fingerprint analysis in court is likely to become significantly more limited.

On January 7, 2002, Judge Louis H. Pollak, former dean of Yale and University of Pennsylvania law schools and now senior district judge for the Eastern District of Pennsylvania, ruled that fingerprint analysis does not meet the standards set by the Supreme Court for scientific testimony. Therefore, fingerprint experts can no longer attest that a defendant’s prints are a definite match to those lifted from a crime scene.

Judge Pollak’s ruling still allows qualified fingerprint identification and is not binding on courts outside the Eastern District of Pennsylvania, but is likely to send shockwaves throughout the criminal justice system, not only with regard to fingerprints but to other forensic evidence, such as ballistics. DNA evidence presented in the form of statistical probability rather than scientific certainty currently meets the standards.

It will be some time before the full ramifications of Judge Pollak’s decision is felt. It will, of course, be debated by prosecutors, defense attorneys, law enforcement officials and forensic scientists. Judges in other jurisdictions may rule differently, but some will undoubtedly follow Judge Pollak. That will then send a raft of cases up the judicial ladder for further clarification.

Those who are interested in reading the totality of Judge Pollak’s decision may click here.

We highlight this decision to make several points. First, neither law nor science is static. Second, a lot of things that we have been led to accept as settled are not. Most important, as we move forward with post 9-11 necessity for adequate security, enhanced forensic investigation and identification techniques, we are being besieged by those who would sell scientific and high-tech panaceas for each and every problem–facial recognition, corneal recognition, "lying eyes" lie detectors, implantable chips linked to GPS finders. We’ve written about a lot of these on this website and will continue to do so. Each brings Big Brother closer, and none is without significant error or problem, although part of the sales pitch is to minimize recognition of the errors and rationalize the problems, including misidentification and invasion of privacy.

Yes, we have been violated, as a country and as a people, and we are hurt, confused and vulnerable. But in that vulnerability, let us not sacrifice that which is our essence, our freedom, either to those who want to destroy us or those who want to "save" us.

By doing his job, conscientiously and thoughtfully, Judge Pollak has rendered a great service. He has reminded us once again that all is not as it seems and too much trust can be as dangerous as too much ignorance.