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For nearly 100 years, fingerprints have been considered solid forensic evidence to identify defendants, but that may be changing as some judges and legal scholars question their reliability and methodology. In San Francisco, Superior Court Judge Lenard Louie conducted a six-month hearing last spring into the validity of fingerprint identification and came away with a new opinion. “I now realize that the subjective analysis of the examiner plays a major part in the identification of fingerprints,” the judge said in an interview. “I still believe that fingerprints are accurate, except that I have some questions about the absoluteness of the accuracy.” Louie’s voice is joining the chorus of those who want more scientific validation that fingerprints are good forensic evidence. The impetus to question the validity of fingerprint identification began in 1998, when Assistant Federal Defender Robert Epstein in Philadelphia looked at two latent prints law enforcement said came from the getaway car in a robbery for which his client, Byron Mitchell, was arrested. “I just started asking questions that people haven’t been asking,” Epstein said. “There hasn’t been a study to assess the reliability of fingerprint analysis … . What is the minimum standard that examiners should use?” He concluded there wasn’t any science to back up the assertion that latent — or fragment print identification — met evidence standards set in 1993 by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals. Daubert told federal judges to act as “gatekeepers” and determine for themselves whether the scientific technique produced reliable evidence. Although the trial judge ruled against Epstein in the Mitchell case, the federal defender has appealed his client’s conviction to the 3rd U.S. Circuit Court of Appeals. In Philadelphia, Senior U.S. District Judge Louis Pollak held in January that fingerprint expert testimony did not meet federal standards for admissibility, and he questioned the underlying science. Professor David Faigman of Hastings College of the Law said that Pollak reversed himself two months later, after intense urging from the FBI and other law enforcement agencies that feared they could lose a valuable tool. “[Pollak] said at the end that there was too much pressure brought to bear on him,” said Faigman, who teaches classes on constitutional law, science and the law, and scientific method for lawyers. “Even federal judges, who have lifetime tenure, feel the pressure,” he said. San Francisco Assistant District Attorney Elliot Beckelman, who prosecuted a murder case involving fingerprint evidence before Judge Louie, dismisses the notion that Pollak was pressured to reverse himself. “This fits into the defense concept of conspiracy,” said Beckelman, who argued that questioning fingerprint accuracy is simply an attempt by the defense to raise doubts about the prosecution’s evidence. “The defense would like to say it’s really just subjective, that it’s just voodoo.” Despite the increasing number of questions over the validity of fingerprints, no court has barred them as evidence, Beckelman said. He noted that a judge last year turned the tables on those who challenge fingerprints, saying they’re the ones practicing “junk science.” “To take the crown away from the heavyweight champ you must decisively outscore or knock him out,” wrote supreme court Justice Michael Brennan, a New York trial judge who held hearings on fingerprint evidence. He denied the challenge. ACADEMIA WEIGHS IN Adding to the debate is Simon Cole, whose book, “Suspect Identities: A History of Fingerprinting and Criminal Identification,” argues that there is no consensus or accepted standard among fingerprint examiners to determine with scientific certainty how they make a match. An assistant professor of criminology, law and society at UC-Irvine, Cole agrees it will take a bold judge to throw out fingerprint testimony. He said that he was “very pessimistic” that would happen anytime soon, since there is little movement in that direction by the courts. And he said that law enforcement is reluctant to sponsor research into print identification reliability, since it already accepts the technique. “People have just taken it for gospel or the truth for so many years,” Cole said. “Fingerprint experts are just expressing an opinion — like a psychologist who says someone is mentally ill.” In the case heard by Louie, former San Francisco Deputy Public Defender Michael Burt asked Louie to hold a Kelly-Frye hearing on fingerprints. Although federal courts and a few states have embraced Daubert to determine test reliability, California employs the Kelly-Frye procedure adopted by the state supreme court in 1976. It requires the judge to decide whether the scientific procedure is new or accepted, and if the person performing the test is qualified and using proper procedures. Burt was defending Robert Nawi, accused of the 1987 ice pick murder of Virginia Lowery. Police lifted a latent fingerprint and partial thumbprint from a water heater in Lowery’s home, fed them into the unsolved crimes computer database, where they lay for 11 years. Then suddenly there was a computer match with Nawi after he was arrested and fingerprinted for threatening a bartender in San Francisco’s North Beach in 1998. Beckelman, the prosecutor in the Nawi case, said a police examiner and an outside expert both confirmed that the prints were Nawi’s. The expert witness was private consultant Ken Moses, a retired San Francisco police officer who originally lifted the prints from the water heater. Moses confirmed the fingerprint identification made by police crime scene investigator Wendy Chong. Acknowledging that he has no formal scientific training, Moses said in an interview that he made the match based on his experience. Burt attacked the fingerprint evidence as unreliable, because Moses and Chong did not have to pass a proficiency examination, nor did they agree on what makes a match. “There’s no real testing of these fingerprint technicians to see if they can make a match on blind samples,” Burt said. “There are no scientific studies to support the claims that these people are making, namely that you can establish 100 percent absolutely that a smudged print is unique to the individual.” But Beckelman stands by the evidence in his case. “At this point, fingerprints are a very stable forensic piece of human identification,” he said, adding that there is general agreement that prints are permanent and unique to a person. Even though identical twins have the same DNA, Beckelman noted, they have different fingerprints that were formed randomly in the womb. Judge Louie said jurors ultimately convicted Nawi of first-degree murder based on DNA evidence. But Burt said jurors told him he raised compelling questions concerning the validity of the fingerprint evidence. Louie sentenced Nawi to 25 years to life in state prison. The judge said he granted the Kelly-Frye hearing to learn about fingerprint evidence and the latest challenges to it. While Burt’s arguments raised concerns, they were not ultimately persuasive. “My background as a prosecutor … my background dealing with fingerprint technicians as a DA and on the bench just won’t allow me to buy it,” Louie said. SCIENTIFICALLY REFINED Other critics of current fingerprint evidence, such as Hastings’ Faigman, don’t believe it should be excluded from courtrooms, but instead should be scientifically refined. “My main complaint is that we don’t have people who have good scientific training doing any kind of evaluation of this technology,” he said. “The problem I have is that you don’t know how good it is, because it’s not subjected to scientific method [so] it’s not as good as it could be.” The law professor said that the U.S. Justice Department’s research arm should produce studies to “come up with base-rate information to know what the frequency is in finding certain whorls or ridges in the population at large.” He said such validation could place fingerprints on a level similar to DNA, which uses statistical analysis to identify the suspect based on the probability that no one else in, for example, 100 million could have the same characteristics or markers. “I think the reason the FBI is fighting validation of fingerprints is not because they think fingerprints will fail validation, but that they don’t want to set a precedent,” Faigman said. “They don’t want to set a precedent that bite marks, ballistics, tool marks and handwriting will have to pass empirical validation, too.”

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