...the Court has basically held that judges are required to examine the reliability of expert testimony before allowing it to be considered in court... The Myth of Fingerprints

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.

[Posted January 18, 2002]


March 21, 2002
Good Enough for England; Good Enough for the U.S.
Judge Reverses Himself on Fingerprint Evidence

In a case-specific and partial—but also substantial—reversal of a prior ruling, Philadelphia Federal District Judge Louis H. Pollak will allow an FBI fingerprint expert to testify that a defendant's prints "match" those lifted from a crime scene.

In January, Judge Pollak had ruled that fingerprint analysis does not meet the standards set by the U.S. Supreme Court for scientific testimony. (Click on The Myth of Fingerprints) The U.S. Attorney asked for a rehearing. After three days of testimony, the Judge reversed himself, seemingly convinced that FBI experts are sufficiently qualified and their techniques sufficiently rigorous as to generally qualify their analysis as reliable for expert testimony. The judge seemed particularly swayed that the FBI methodology is accepted by courts in England.

The judge did not accept fingerprint analysis as science, but equated it to the expertise of art authorities and real-estate appraisers. He did not extend the ruling beyond the FBI to private, state or local fingerprint analysts. In the murder trial before him, he indicated that he would review the specifics of fingerprint evidence before allowing presentation to the jury. (To read the full text of Judge Pollak's ruling, click here.)

While Judge Pollak's reversal is a partial setback to those who believe that expert testimony frequently exceeds the reliability of the underlying data, challenges to a wide variety of scientific and forensic evidence will continue, and his exceptionally thorough, fair and cautious approach to the debate, regardless of outcome, is reflective of a high standard of jurisprudence. In announcing his reversal, the judge quoted the late U.S. Supreme Court Justice Felix Frankfurter: "Wisdom too often never comes and so one ought not to reject it merely because it comes late."

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