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Over the last 12 years, post-conviction DNA testing has exonerated 140 people who had been wrongly convicted. We have learned a lot about the fallibility of the criminal justice system, and specifically eyewitness identification, police and prosecutorial misconduct, incompetent lawyering, false testimony by snitches and informants, and false confessions. But science has revealed another cause of wrongful convictions: forensic science itself. In February, Stephan Cowans became the 141st person exonerated by DNA evidence after spending six years in prison for a shooting he did not commit. His conviction had been based on fingerprint evidence. While he is the first of the 141 who was convicted with fingerprints, he was by no means the first person ever wrongly convicted with fingerprints. For the past century, fingerprint evidence has been presented to the public, and to jurors, as infallible-as absolute or positive identification. Even when the occasional misidentification has been exposed, the error has been attributed to the incompetence of the examiner. The methodology itself remained infallible in the minds of the judiciary and the bar. As recently as January 2003, a Federal Bureau of Investigations examiner claimed that fingerprint matches had 100% certainty. This assertion was made during a discussion on 60 Minutes of Richard Jackson, a Pennsylvania man wrongly convicted of murder and sentenced to life in prison on the basis of an erroneous fingerprint match. Even those who admit that fingerprint evidence is not infallible have noted that the number of documented misidentifications is low. This does not necessarily mean that the error rate for fingerprint identification is insignificant, because of the enormous power of fingerprint evidence. In most cases, extraordinary circumstances were necessary to expose fingerprint misidentifications. Until DNA, there was no evidence that could trump fingerprints. Eyewitness identification could be seen as unreliable; confession by someone else could be false. How fortunate for Cowans that the true perpetrator obligingly left DNA evidence at the crime scene, that the evidence technicians recovered it, that it was preserved for six years and that the court ordered it tested. If any link in this chain of lucky breaks had been severed, Cowans would have served 35 years. We have no way of knowing how many others there have been over the past century who were less fortunate than Cowans. But it would be naive to assume that they do not exist. Are fingerprints bad science? We are left with the question of whether fingerprint evidence is totally shoddy. The answer is: of course not. DNA exonerations have exposed a lot more bad serology and bad microscopic hair comparison than bad fingerprint evidence. In fact, post-conviction DNA testing has exposed more bad DNA evidence than bad fingerprint evidence. (There are practical reasons for this; unlike fingerprints, blood and hair are biological materials that can be DNA tested.) But it does mean that fingerprint evidence has an error rate. We are commonly told that even when errors do occur, they will be caught by a second examiner who verifies the match. But, in Cowans’ case, two fingerprint examiners testified that the print belonged to him. Defendants are permitted to hire their own fingerprint examiners to check the government’s work, and Cowans’ defense attorney hired two retired fingerprint examiners. These consultants, paid by the defendant, incorrectly con- firmed the prints as his. Sometimes the system just makes errors. Error is a part of any scientific endeavor. Most areas of science seek to manage, control and, above all, understand the sources of error. But, in forensic science, there is a tendency to deny that error exists, and, when it is exposed, to dismiss it as irrelevant. The wrongful conviction of Cowans will likely be blamed on incompetent examiners, as fingerprint misidentifications always are. Proponents of fingerprint evidence will claim, yet again, that the method is infallible-as long as it is practiced by competent examiners. But how do we know what a competent examiner is? If there hadn’t been DNA at the crime scene, Cowans would be still in prison, and his fingerprint examiners would still be presumed competent, with license to present evidence as an absolute certainty in court. Fingerprint examiners should not be permitted to tell fact-finders that the method itself is infallible even if the practitioners are not. The practitioners are, themselves, the method. And, if fact-finders already have the preconception that fingerprinting is infallible, they should be disabused of it. Fingerprint matches should be presented as what they are: They are not scientific determinations but opinions based on experience one has developed by looking at fingerprints-opinions, whose overall reliability has never been measured. Simon A. Cole, the author of Suspect Identities: A History of Fingerprinting and Criminal Identification (Harvard University Press 2001), is an assistant professor of criminology, law and society at the University of California, Irvine.

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