[The following is based in part on talks delivered by Andre A. Moenssens at the Annual Meeting of the Florida Division of the International Association for Identification (IAI), at Fort Lauderdale, on November, 2, 2004, and at the Annual Meeting of the Chesapeake Bay Division of the IAI on April 8, 2005. (These discussions were, in turn, based on a more abbreviated presentation made at the IAI's 89^th Annual Meeting in St. Louis, Mo., on August 25, 2004.)

In 2004, the IAI commemorated the 100^th anniversary of the formal introduction of fingerprinting in this country. We held the IAI's  annual meeting, last August, at St. Louis, Mo., at the very locale where that method of identification - very novel in 1904 - was first introduced.

The question posed by the title of this talk is very difficult to answer. It perhaps also suggests that there is an easy way to resolve the issue, and that is of course not true. So what do I want to do at this occasion is first to consider the current state of the profession in terms of court challenges, and give you my view of how we got to this point, and how long these challenges are going to last.  Then, I will make some suggestions as to what we CAN do to make our lives easier when we're being challenged.

Why was I asked to speak on this topic. Well, it's probably my age and longevity.  Since I began my study of fingerprints more than a half century ago - in Belgium in 1950 - perhaps it is appropriate that I ruminate a little about the changes that I have seen occurring during that time period,  and also suggest some changes that I believe should still occur in our field.

First, how did we get to where we are?

                                                         The Daubert Challenges

I don't believe there is a person in this room who hasn’t heard of the Daubert decision and Daubert challenges to "fingerprinting."^[1]   For that reason, I am not going to discuss the Daubert decision itself, nor will I elaborate here on the four factors which expert testimony may have to satisfy in order to meet legal standards of admissibility under current federal law and under Kumho Tire.^[2] These decisions have been beaten to death at seminars for the past several years, and I will assume that you are all thoroughly familiar with them. Those are the cases on which individuals challenging our profession have relied these last few years.  I will also assume that all of you are familiar with the relatively recent cases that involved Daubert challenges to "fingerprinting," especially the district court and appellate court decisions in United States v. Mitchell^[3]   and that of United States v. Llera Plaza,^[4]   as well as the Havvard case in the 7^th Circuit.^[5]

Thanks to some excellent websites, among them those of Ed German^[6]   and Kasey Wertheim,^[7]   we are also aware that the challengers have a pretty poor record - in fact, the court decisions run, as of now, in excess of  40 to nothing in favor of our discipline. The challengers' record of success is ZERO.  So should we still worry about it?  Have these challenges pretty much run their course?  Yes, we should still worry about it.  No,  these challenges are not about to disappear.

Let me give you my perceptions of how we got to this point, and what we need to do to gain the confidence to neutralize Daubert challenges to friction ridge impression evidence.

In 1911, in the very first appellate case to deal with the then still novel fingerprint evidence – and that case was People v. Jennings,^[8]  an Illinois Supreme Court case – “fingerprinting” was being hailed as a system of personal identification that had a scientific basis and was so accurate and reliable that the courts could take judicial notice of this fact.  In light of that pronouncement,   how did the practitioners of friction ridge impression individualizations come to be at a point in history where literally every aspect of their profession is being challenged?

The answer is complex, but at the same time it is also simple. Times change!

                        The United States of American Was A Different Country in 1911

Friction ridge evidence came upon the law enforcement and legal scenes at a time when life was much simpler and people were more trusting of authority. In 1911, when Jennings’ conviction of murder was being reviewed by the Illinois Supreme Court, there were far fewer laws, rules, regulations, restrictions upon behavior, and doubts about public authority. There was no Daubert opinion. Indeed, the first appellate court decision laying down a workable rule for the admissibility of novel scientific evidence – Frye v. United States which fashioned the “general acceptance” rule – would not be decided for another dozen years.

Friction ridge theory had been developed by legitimate scientists like Dr. Nehemiah Grew, J.C.A.  Mayer of Germany, Professor Marcello Malpighi of Italy, Professor Purkinje of modern Poland, and other academics and researchers.  After scientist Dr. Francis Galton wrote the first book on “finger prints” in 1892, however, the new method of personal identification which was called “fingerprinting” was quickly adopted by law enforcement folks across the world. The scientists who had worked mightily to postulate and research the hypothesis of ridge pattern individuality were shunted to the sidelines. “Fingerprinting” was now a police matter.

In those days, the bulk of the law enforcement users of friction ridge trace evidence were trained on the job by others who came before them, and who had been trained in the same manner. That’s the way it happened with the first pupils of Sergeant Kenneth Ferrier of New Scotland Yard when Ferrier met them at the St. Louis World’s Fair in 1904 and agreed to instruct them in “fingerprinting.”  These pupils were not scientists, and their students were not scientists.  But the beauty and immense diversity of the friction ridge patterns was so self-evident that the individuality and difference of all patterns to be found on human fingers and thumbs – one of the premises on which “fingerprinting” was based – appeared to be beyond doubt.  Without understanding the biology on which it was based, examiners of the ridge patterns had no difficulty accepting the premise of individuality of all prints.

It was also soon established – empirically, I might add – that friction ridge patterns were persistent in their ridge detail during one’s lifetime. Superficially injured friction ridge patterns would return to their previous arrangement upon healing, experiments showed.  What was then called “fingerprint identification” was a huge success!  It was such a success that, today, we are all victims of friction ridge impression evidence’s early success and the complacency it encouraged.

The universal acclaim that “fingerprinting” received early on divorced the scientists from the law enforcement practitioners, and that separation would remain, in a fairly general way, until the 1991 Daubert decision.

                                Scientific Research DID Continue In The 20^th Century

Oh! To be sure, there was a parallel track of research in “fingerprints” going on by several respected and highly credentialed scientists. Among the most prominent of those were Drs. Harold Cummins and Charles Midlo, Hawthorne Wilder, and Inez Whipple. They even wrote books about their research – books that had a great influence on me when I started my work in “fingerprinting” in earnest in the 1950's.  But even some of these scientists sensed there was a divide between them and the friction ridge impression evidence practitioners in law enforcement, to the extent that many of them eschewed the term “fingerprints” and called their studies of ridge patterns “dermatoglyphics.”  Some police identification people became familiar with the then radical studies in embryology by Cummins and Midlo, but the bulk did not. They concentrated on “practicing” fingerprint comparison, rather than studying the essentials and the scientific underpinnings.

When changes came about in the 1970's with the adoption by the IAI of the “no- minimum-points-rule-is-legitimate” position, it gave many examiners a lot of pause. They did not like this rule because they did not understand the reason behind the committee’s determination. And it also removed a “security blanket” which had remained clutched in their hands for decades when testifying in court. 

I had the good fortune – or misfortune, depending on one’s viewpoint – to serve on the three-year-long IAI Standardization Committee, and we received a lot of negative comments from IAI members when the results of our hard work came to be a rejection of the idea that there was a categorical magical minimum number of matching characteristics needed to arrive at a positive identification. Our position was NOT that identifications could be made on 1, 2, 3, 6, or 7 characteristics, however. Our position was straightforward: there simply was no SCIENTIFIC justification for stating that either 8, 10, 12, or 16 – whatever the minimum number that a particular jurisdiction might have believed in at that time – matching points were required for a positive identification. But note this well: we, as a profession, studied, between 1970 and 1973, the scientific bases for individualizations  some 21 years before Daubert came to be decided. 

You must also remember that, at that time, there was no AFIS or IAFIS – there were no workable computer-based fingerprint storage and retrieval systems in those years that compare with today’s scanning and computerized storing and retrieval capabilities.  In a real sense, the IAI position on point-counting in 1973 was revolutionary;  it considered the scientific principle of uniqueness in the context of existing practices.  But our committee finding, adopted by the IAI,  surely stirred things up!

                                             “Ridgeology” Comes Upon The Scene

As if the shock of the IAI members’ psyche wasn’t enough, then an upstart Canadian IAI member had the audacity to suggest that we ought not to confine ourselves to looking at  individual ridge characteristics – which is what we called the Galton “point” counting system – but also look at pores, edges of ridges, and other line quality features.  The discomfort with this new way of looking at things that our friend and RCMP colleague David Ashbaugh called “ridgeology” grew even more. He suggested dividing all ridge detail into Levels One, Two and Three. The collective unease of a good number in the profession grew!  Why wasn’t the way we had been doing it before good enough?

It is when the Daubert decision was decided that the answer became obvious. Daubert simply challenged the legal framework in which our expertise was used in court.

                                      Document Examiners In The Daubert Spotlight

The first forensic science practitioners to suffer the brunt of Daubert challenges were the questioned document examiners. Not all of what they did was being challenged, because a significant number of laboratory tasks involved recognized scientific principles. The challenge was directed only to that portion of their practice that dealt with handwriting comparisons to determine the authorship of a writer. A few critics had charged, in a law review article, that handwriting identification was unscientific and that its evidence therefore should not be admitted as a scientific opinion. The challengers initially met with some limited success in a few cases, and other challengers then turned their attention to friction ridge examinations, making essentially the same arguments as had been made in attacking handwriting comparisons: that fingerprint identification was unscientific, if not in its totality, then at least in its application to the individualization of partial latent impressions.  And that led to the series of court cases – all of them ultimately unsuccessful to date – wherein Daubert challenges were leveled at every aspect of friction ridge evidence.

Since they have been unsuccessful, why should we not conclude that the problem will all go away quietly and that we will be able to go back to the way we did things before the Daubert challenges. When will we all be able to be confident and self-assured on the witness stand again! 

I said it before: times have changed.  We can’t turn the clock back. As lawyers become more combative as well as better informed, they also have become more ingenious in finding new ways of challenging accepted premises.  While wholesale attacks seeking to exclude positive match opinions have diminished, they still occur here and there. In fact, the Brandon Mayfield fiasco, the closing of the Boston, Mass., latent print unit, and other such reported instances across the country,  may cause court challenges to be revitalized here and there.

But a far more important trend is being noted – a trend that is much more likely to cause friction ridge comparison examiners problems in court!

One of the changes that is occurring already is that some lawyers purposely aren’t making a pre-trial Daubert or Frye challenge, [because they know they aren’t very likely to have the court exclude fingerprint evidence],  but they focus their attack primarily on the credibility of the examiner at trial. When a pre-trial hearing challenging friction ridge evidence is being made, the prosecution is alerted to the fact that it will have to call in “the big guns” in the profession to mount a determined response. The prosecution is then in a position where it can call upon some of the leading examiners in the country – at high cost to the government, I might add –  to justify our profession’s positions on friction ridge individualization. These folks – most of them, if not all,  IAI members of long standing and superbly qualified  – are able to respond to the most searching inquiries.

But when the challengers focus on the local examiner who has made an individualization in a particular case – an examiner who may not have the breath of experience and the base of theoretical knowledge possessed by the individuals we might have called on to rebut a pre-trial challenge – that same local examiner may be made to look inadequate by a skilled cross-examiner. ALL  of the questions about friction ridge science that could be asked of the experienced examiner at a pre-trial hearing to determine the issue of admissibility, can now also be asked at trial of the less experienced or less articulate local examiner on the issue of that examiner’s credibility as an expert.  That new approach forces all examiners, at whatever level of competence, to become better informed, better trained, and better educated, than has been deemed necessary in the past.

What do we need to do, in order to survive future Daubert or Frye challenges, whether made prior to trial or at trial?  I am going to set out here a list of recommendations which I have put, somewhat arbitrarily, into categories. For the purpose of lumping them together in fairly broad groups of concerns, I will put them here in six  categories of things we need to do, individually and as a profession. Understanding these concerns will assist examiners in maintaining or regaining their confidence when giving testimony in a case. Some of these concerns are fairly self-evident, some overlap in their substance, and many you already know about because they have been mentioned at other professional meetings.

1.   Most examiners of friction ridge impressions are going to have to be far better educated than many of them currently are, in order to “defend” their livelihood – their  profession – adequately and to withstand challenges.

It has been my impression that in recent years, unlike in my day, new friction ridge impression examiners are not trained as well in the “basics” – the fundamentals of the identification of friction ridge impressions  –  as they were in the past. It seems to me that, today,  the focus is much more on the “how to do it” aspects  – on ACE-V methodology – than on a study of the development of friction ridge theory through the years.  We all need to re-educate ourselves about the fundamentals.

When I talk about “fundamentals,” I do not mean the process followed in examining and comparing latent prints. I mean the underlying science that supports our assertions that friction skin patterns are unique. Just like most of the younger people coming in the field are no longer required to study pattern interpretation and classifying ten-print fingerprint cards according to the FBI Extensions of the Henry System, so are some of our newcomers in the field not taught the scientific underpinnings that support the uniqueness and permanence of friction ridge detail. They jumped straight from an orientation that might have consisted of reading a textbook or two, to the methods used in comparing known and unknown patterns.

Keep in mind that while the uniqueness of friction ridges is well established, and indeed courts have taken judicial notice of it, you may still be questioned on the formation of ridged skin prenatally as part of inquiring into your qualifications and competence. Be sure you can explain every aspect of friction ridge science and the biological, embryological  and physiological underpinnings of it.

We are also going to have to re-educate ourselves about the basic terminology that we use to describe our profession. We have forever talked about “fingerprint identification,” and when dealing with a palmprint in a case that had to go to court, we threw in the off-hand assertion that there is no difference between establishing identity of a fingerprint and that of a palmprint. In both cases, we compare and examine – this is before ACE-V and the three levels of ridge detail – the individual ridge characteristics found in the pattern. That has gotten us by for long.

In the aftermath of Daubert, when the emphasis has shifted from merely experience-based practices to the underlying scientific methodology, we should become used to relying on the more scientifically accurate description of the field.  We are not “fingerprint examiners” who also occasionally are asked to compare palmprints; but we are, instead, examiners of friction ridge impressions evidence.

It’s not just the “fingerprint” that is unique. It is the individual ridge structure that makes up patterns on either the digits OR the palms OR the soles of the feet that is unique as Dr. William Babler, and IAI members Alice Maceo, Steve Meagher, Kasey Wertheim, Pat Wertheim, Ron Smith and many other highly qualified IAI-ers have explained in carefully researched studies.

SWGFAST^[9] has adopted the standard terminology to be used, and we should forego using old terminology that is no longer currently advocated. As Pat Wertheim wrote in an article some time ago, “Fingerprint terminology varies greatly from one agency to another” and different words are used to describe the same concepts.^[10]  If we continue to do this, it just shows challengers we are behind the times. Lawyers  will become familiar with the SWGFAST recommended standards, since they are freely accessible on the Internet – which is as it should be –  and the attorneys can therefore ask questions about adherence to the standards.

“Identification” is another term we have traditionally used to designate that two prints came from the same ridge matrix. Again, to quote Pat Wertheim from the same source, “In other comparative sciences, the term ‘identification’ refers only to inclusion in a group. . . . [T]he term ‘individualization’ is used when an unknown print or impression is matched to its source.”   So use the terminology of individualization to describe a match, rather than talking about an “identification.”  It is simple more accurate and more scientific.  [Having said this, I realize that, in the public’s mind, it will FOREVER be about “fingerprints,” and “fingerprint identification” rather than about friction ridge pattern individualizations. The terminology of “fingerprint identification” is simply not going to go away in the forseeable future.]

“Explainable dissimilarities” is another term is that frequently heard, and it is truly an ambiguous term that may be understood to have a meaning we do not intend for it to have. If we’re talking about an apparent difference that is explainable, it is more accurate to refer to it as a distortion. If there truly is a ridge feature that appears in one impression but which does not appear in the impression against which it is being compared, then you can confidently refer to it as a dissimilarity, meaning that the two prints do not match.

What I am suggesting is that all of us become familiar with – and use – the recommended terminology formulated and accepted by SWGFAST.

We need to no only become intimately familiar with current terminology, but we must also accept and use current advocated methodology. What’s more, we must also be able to convince the court and jury that when we use these new terms, they do not represent brand new techniques  —  (this would seem to imply that what we did before was no good, and we certainly want to avoid creating that false impression)  —  but that they are simply part of an ever evolving base of knowledge that is being tested empirically and that requires us to add, from time to time, a new vocabulary to describe the broadening and deepening of our knowledge.  What do I mean?

“Ridgeology” and ACE-V methodology are terms that defense lawyers  are becoming used to, and you must of course be prepared to explain these concepts in great detail. Most of you probably can explain very precisely what the three levels of detail are that are part of ridgeology, and how they compare to the old class characteristics and individual characteristics?  But do not forget to also explain that this new way of looking at friction ridge evidence neatly fits in with what professionals have been doing all along for the past century. Individualizations can be made validly on Level Two detail (the former “individual characteristics”) only!

Can you explain convincingly that this shift of terminology does not represent a NOVEL idea but,  again,  is only an evolution of the field in adapting to an ever advancing base of knowledge? You’d better be prepared to do so.

Remember that ACE-V describes only the process that needs to be followed in comparing unknown latent and known inked impressions. Following that process will offer SOME safeguard that ACE-V has been correctly applied. It is, however, no guarantee of the accuracy of the examiner’s conclusion.

                                                        The  “Individuality” Issue

Let me add a few words about the “individuality of friction ridge detail” issue . . . .

As a legal prerequisite for admission, the individuality issue is, for practical purposes, off the table and completely settled. Even the most critical judge – Judge Pollak in the Llera Plaza case  –  not only recognized that friction ridge individuality and permanency had been established by respected scientists, he went a step further and took “judicial notice” of that fact. That is a very important thing to remember. Non-lawyers may not fully understand what “taking judicial notice” means: it means that the court is willing to accept a fact as proven and that no further proof of that premise need be adduced.

But  “judicial notice”  extends only to the individuality of a complete or nearly complete finger or palm impression – it does not necessarily extend to partial latent prints.

If the individuality of friction ridge patterns is “off the table,” as I just stated, does that mean testifying friction ridge impression examiners do not have to know how fingerprints develop during fetal life?  Does it mean that you no longer have to be able to explain why some friction skin will develop into arches, and why other friction skin forms loops or whorls during prenatal life?

A cross-examiner may delight in delving into these technical areas if he or she gets a sense that the expert witness who is on the stand is little hesitant about that knowledge.  Is that relevant to an individualization that you have made?  ABSOLUTELY NOT !  So why can the cross-examiner go into this apparently irrelevant matter?  Because this matter is relevant to testing the competence and credibility of the witness who is on the stand.

The concept of individuality as well as the mechanism of friction skin formation, are part of our profession, and if something is part of it, then your knowledge of it, or the lack of your knowledge of it, is something that the jury can take into account when deciding whether to accept your ultimate opinion in the case at bar. After all, a true expert is expected to know just about everything there is to know about one’s profession. So if something relates to friction ridge impression principles or methodology, it’s fair game for cross-examination. In the law, an exploration of these issues would be called “impeachment” evidence – evidence that reflects on the believability of the witness  – and it is appropriate to ask about it no matter how tangential it may be to what your opinion is in the case in which you are asked to appear.

Education, education, education .......

Do not confine yourself to studying a “how to do it” book that talks only about comparison methodology. Know everything  –  or at least more than the cross-examiner or the opposing experts do – there is to know about the impression evidence field. Today, friction ridge individuality may be said to be a mature science, resting upon demonstrably objective findings that have been widely documented. Be sure you can explain those objective findings, using the correct and current  terminology.

2.  Do not believe that the fact you have been “certified” will automatically qualify you in the eyes of a jury.  If anything, a person who has been “certified” is expected to have a far greater knowledge about the specialty than one who lacks the IAI certification.

            Certification programs and accreditations help to eliminate the truly incompetent, but they do not eliminate the reasonably competent person who believes that he or she knows all there is to know about “fingerprints,”  or at least “enough.”  As we have seen on several occasions in the immediate past, It doesn’t even offer a guarantee that the conclusions of an experienced examiner are correct.

Luckily, the field of friction ridge comparison doesn’t have to contend with slews of incompetent persons with so-called “certifications” from illegitimate professional societies who sell certificates of competency and board certifications for a price – like those that exist in the handwriting comparison field. But that doesn’t mean there aren’t some incompetents out there that you may confront. A few of them even were certified – for a while – by the IAI Certification Board.

Even before certification, some of the old-timers like myself remember when we had to go up against so-called fingerprint experts who lacked any knowledge of the field, like a certain microscopist with a Ph.D. who lacked familiarity with even the most basic “fingerprint” terminology of the day.  The danger when confronting such a person is that they may appear, to the fact finder – the judge and jury – to be more credible than we are because they have impressive academic degrees,  never mind that the degrees may be in a field that had absolutely nothing to do with friction ridge comparisons.

I said earlier you must know “everything” if you are going to be well versed in your profession. Perhaps that is an exaggeration  – it doesn’t literally mean that you have to know EVERYTHING.  So, when you are on the stand, and you are stumped by a question that calls for some background fact or text, don’t be afraid to say “I don’t know.”  It is better to admit a lack of knowledge, even if it may somewhat diminish the aura of infallibility that experts like to project, than to be caught in a lie trying to guess at the correct answer and be wrong.

3.  Be prepared to answer questions that relate to EACH of the precise Daubert factors.  

 Because of the lack of time, we can’t go in each of these factors individually at this occasion.  They have been discussed previously in many places. I do want to single our the one that asks whether fingerprint methodology has been “peer reviewed” in the professional literature.

Now some of the critics, indeed even some judges who rule in favor of fingerprinting all the way (like Judge Hamilton in United States v. Havvard, 117 F.Supp. 2d 848, 854 (2000) , aff’d 260 F.3d 597 [7^th Cir., 2001]) are somewhat confused when they talk about  peer review.  Judge Hamilton suggested that this factor “does not fit well with fingerprint identification because it is a field that has developed primarily for forensic purposes.”   Perhaps that is an inappropriate approach to take. Law enforcement adopted an identification technique that was researched and documented as a specialized discipline by many outstanding scientists who had no connection with law enforcement.  There have been many  books and reports published by respected scientists over a period of literally more than 200 years.

A published book, technically, is not considered a “peer reviewed” publication. However, when there have been a series of such books setting out scientific research findings relating to friction skin individuality or dermatoglyphics characteristics,  NONE of which were ever challenged as unreliable or inaccurate in other publications, that is very strong proof that what we call fingerprint identification has been submitted to the greater scientific and academic communities and that it rests on soundly established scientific principles.

That is true both for the underlying principles of friction ridge uniqueness and permanence, and Ashbaugh’s recommended methodology of ACE-V which, since the initial published recommendation in the early 1980's [significantly pre-Daubert, it might be stressed again] has the subject of much debate in the community of professionals, leading up to its eventual adoption both in North America and, thereafter, in the U.K.

This extensive literature, never proved to be in error in its basic principles, satisfies in my view the requirement of Daubert that a court consider the existence of a peer review literature.  So while I don’t agree with Judge Hamilton’s suggestion in the Havvard case that the peer review factor was not very useful in the case of a technique that comes out of forensic needs of law enforcement, his ultirnate suggestion that the lack of peer review was adequately satisfied by the “fingerprinting” track record for 100 years, is also eminently sound.

Besides, “peer review” is not at all proof of validity. Journal editors who are asked to review a submitted manuscript to determine whether it is suitable for publication, do not invariably endorse the premises stated in the submission. Indeed, they frequently may have little belief in what is advocated, but may clear an article for publication if they believe it may spark some interesting discussion among the readership. Book authorship should also be deemed important on the issue of peer review because the authors have staked their professional reputations on the accuracy of what is contained in them. [I should mention, parenthetically,  that both the Journal of Forensic Identification and the Journal of Forensic Sciences are peer-reviewed professional journals.]

As Judge Hamilton suggested, the track record that the fingerprint identification profession has achieved in over 100 years of actual use “provides far greater assurance of reliability than, for example, publication of one peer-reviewed article describing a novel theory about the cause of a particular disease at issue in a civil law suit.” (Havvard, at 854.)

4.  One of the BIG issues, especially today, is “the error rate” of the profession.  It is also one of the Daubert factors.

The issue of whether friction skin impression evidence is reliable is one that divides the contestants into two very unequal camps. On the one hand, there are the tens of thousands of experienced and trained examiners worldwide, all of whom believe steadfastly in its probative worth on the basis of their years of experience handling such evidence. Some of these persons truly deserve the designation of scientists by education and achievements; many others may be called well-trained nonscientist-technicians.  In their belief in the value and reliability of “fingerprint” evidence, they have a lot going for themselves, for in over 100 years of friction ridge impression study and use, no two identical fingerprints coming from different digits have ever been found. And they have been giving opinion testimony on “matches,” or, conversely, that prints do not match, for the same 100+ years of accumulated experience and wisdom. They give “opinion” testimony, to be sure, but that is, after all, the very feature that sets expert witnesses apart from lay witnesses in the law of evidence.

On the other hand, there are a handful of critics, mostly academics and law professors who, beyond literature searches, have not acquired any practical experience in comparing prints.  Some may call themselves “purists,” and, convinced of their intellectual superiority over “mere” crime laboratory “technicians,”  fervently advocate the premise that if the results of a technique cannot be quantified statistically, it cannot be  “science.” Therefore, they conclude, opinion testimony in that field must be barred. That is the way these critics interpret the Daubert decision, a Supreme Court decision that was, incidentally, intended by the Court to relax the standards for admissibility of expert testimony, rather than raise the barrier to admissibility. That their view of the meaning of Daubert is in error is quite obvious when reading the court decisions interpreting our highest Court’s mandates.

These critics cannot point to any errors in the premises upon which friction ridge identification rests.  At best, they can point to a small number of cases wherein individual “experts” (some of whom were later stripped of their expert  credentials) had made mistaken identifications in a few isolated cases among the tens of thousands of prosecutions in which fingerprint evidence is used yearly.  The problem is, how frequently do these errors occur?

We first of all have to recognize that we are confronting at least three different thoughts here:

ONE is how we define an error;

ANOTHER IS the problem of individual examiner error and how we prevent it from happening;

AND FINALLY, what does Daubert  REALLY mean when it talks about error rates.

Each of these ideas is a discrete and separate topic.

WHAT IS AN ERROR?  I think we would all agree that when an examiner identifies the wrong person, a grievous error has occurred. But is it also an “error” when an examiner fails to identify an impression and calls it “inconclusive,” even though a more experienced examiner might well declare a match?  Kasey Wertheim, in his column “The Weekly Detail,” some time ago and also at the St. Louis IAI conference, discussed this and other issues that surround “errors”  – a topic which has yet to be resolved by the profession.  But assuming we all agree that a misidentification (a false positive match) is an unforgivable error for which there can be no justification, that leads us to the next thought, which is . . .

HOW FREQUENT ARE SUCH MISIDENTIFICATIONS AND WHAT DO WE DO ABOUT THEM?

The literature, and indeed the testimony of examiners in the leading recent cases, suggest that such misidentifications are exceedingly rare. In fact, in the Llera Plaza case, the government witnesses apparently testified that the FBI was unaware of any such errors having been made by FBI experts.

I don’t think that after the Brandon Mayfield case and other documented misidentifications anyone can convincingly maintain that misidentifications are “exceedingly rare” or are strictly the result of inexperience.  In the Mayfield case, four supposedly top-notch examiners agreed with the individualization. If the Spanish police had not come up with a better match convincingly linking the Madrid bombing latent to a different individual – a Tunisian living in Spain – the FBI experts would probably still be maintaining that they were right, as they did for days after the Spanish identification service raised doubts about the FBI individualization.

Clearly, there was a serious deficiency in the way ACE-V was applied in the case that deserves inquiry and a change in process. I am not talking about examiner discipline, but . . .  Are the procedures for dealing with partial latents adequate? Are the rules on individualizing impressions on the basis of digitally transmitted evidence in need of change to avoid errors?  What went wrong and what needs fixing? I know that a lot has already been done to tighten up procedures to avoid similar occurrences in the future, but the fact remains that, at least in the Mayfield case, there was a serious breakdown in friction ridge comparison methodology, that allowed, or made possible, the occurrence of such flagrant erroneous individualization by four otherwise competent examiners. We’ve got work to do in this area, and we haven’t even begun to see the ramifications for the profession as a whole of the Mayfield debacle. Bad though as that experience was, there will also be a lot of “good” coming from a fiasco as earthshaking as that case was in terms of methodological modifications.

We know that friction skin is unique, and we know that reliably accurate individualizations can be made of many partial latent impressions as well. What we don’t know is how low down the clarity-scale of latent impressions we can go and still assert a one-hundred percent positive match, as was done in the Brandon Mayfield case.

Is any of this relevant to meeting the Daubert factors?

It really isn’t, except incidentally. Errors made by individuals have no impact on the “error rate” in the sense that the Daubert decision used that term.  The “error rate” of Daubert has to do with the inherent error that resides within the science itself or with the assumptions on which its principles rests. The “error rate” of an individual examiner is – as far as the law is concerned – merely an issue of the expert’s competence; it reflects on his or her qualifications, about which the process of cross-examination and defense testimony offers sufficient guarantees.

Having said that, you may be sure that the “error rate” issue is taking on a new meaning as a result of the Brandon Mayfield misidentification. Courts will be talking about requiring evidence of an individual examiner’s error rate on proficiency testing. One court already suggested this. The federal court of appeals which upheld the Byron Mitchell individualization suggested that prosecutors should seek to present evidence on the outcome of proficiency testing of the persons they call as expert witnesses.

Do you see the mountain of work that is before us on these and related issues?

The fact that misidentification errors have occurred, albeit with an unknown and presumably low degree of frequency, has resulted in the fairly recent general acceptance within the profession that verification of every identification that incriminates must be part of the standard departmental procedure. SWGFAST’s Quality Assurance Guidelines for Latent Print Examiners, [“1.2.  All identifications must be verified by a qualified latent print examiner.”]  include such a verification standard which has been officially approved by the profession.

Is that the answer? It helps, but it obviously is NOT sufficient   —  witness the multiple verifications of the initial Mayfield individualization!  We used to say that a defendant in a criminal case, can easily resolve the “problem” of a potential misidentification error by calling a qualified, board certified, latent print expert to obtain an unbiased and independent review of  incriminating identification.  Even that process failed in the Mayfield case because the defense expert, a very experienced examiner, explained at the St. Louis meeting how he also came to  erroneously corroborate the government’s individualization.

What do we do about it?  It’s a serious question that the profession better spend some time studying to find the causes and postulate a remedy. And that leads us to the next point . . .

5. The Need for More Research . . .

We accept the uniqueness of fairly complete impressions of friction skin detail on a finger or thumb?  But since we NEVER have a complete print in an actual case, and most latent impressions contain less than half of a full print, how do we know that a partial print has sufficient detail for identification?

It has been asserted that confidence in the uniqueness principle requires that a complete fingerprint be available. The fallacy of such an argument is that no fingerprint is ever “complete” in the sense that it records each and every detail that might be observed by a close examination of the skin itself. An effort to carefully roll a digit from nail to nail will almost always fail to pick up some of the ridge detail that might be visible around the crease or below the fold between the distal phalange (end joint) and the medial phalange (middle joint). Likewise, a plain impression will typically pick up added detail near the tip of a finger not visible in rolled impressions, at the same time as it will also fail to show the detail on both sides of the nail’s edges.  Thus, all prints are partial impression to a greater or lesser extent.

The question remains of how “partial” a print can be, and still be identifiable with a reasonable degree of certainty. Resolution of that question now depends on an examiner’s experience in studying and comparing thousands of individual prints – an argument that is usually deemed unsatisfactory to individuals for whom the process of individualization requires demonstrable and mathematical precision visible even to the inexperienced and untrained person.

We might approach the issue initially by repeating the theorem which most scientists accept as true: that all things in nature are different to some degree or another, or that “nature never duplicates itself.”  First of all, the “all things in nature are different” concept applies only to complete units, not to parts of a unit. Some maintain that even a piece of friction skin no longer than a quarter of an inch is unique. That is undoubtedly true on the molecular level, but it, of course, does not follow automatically that the uniqueness can be established by a mere visual study of what is visible in the record of a piece of friction skin. Be prepared to address that issue.

Many examiners appear to be afraid to admit that we still engage in or recommend research on issues we already accept as true. They fear that inviting additional research is an admission that we aren’t quite sure of the underlying principles, or that the premise upon which we are relying hasn’t been proved sufficiently. There is no need for such fear. There is nothing wrong with continuing to examine premises which are already widely accepted. That is, in fact, the essence of the scientific enterprise.  Even when a professional discipline has already reached the point where its premises are firmly believed to be established, there remains a need to continually expand the scope of one’s knowledge and test the accepted premises against accumulating data, to see whether the known assumptions remain as strong as they were believed to be. Continual research and testing is what science is all about. We should be proud to be doing so. It does not detract from the trust we have in our beliefs; it only confirms that our confidence is strong enough so that we are willing to continue to put it to the test.

Therefore, do not be afraid of continuing research. Support it; encourage it. Most importantly: keep up with what is currently ongoing in the way of research.  Only a person who does not truly believe that friction ridge evidence is unassailable fears further research.  And if it were to be discovered – which I strongly believe will NOT be the case – that our assumption of ridge structure individuality is false, then it is an assumption we should abandon.  No one in this room believes that this will be the result of continual research, of the persistent verification of assumptions, and of the refining of our science vocabulary.

The essence of being involved in science is that one always seeks to expand knowledge in an organized manner. Scientists utilizing the scientific method – and I won’t go into detail into the various steps that this requires because we lack the time to do that here – arrive at certain conclusions that remain tentative, until further research either confirms the conclusions agreed upon earlier, or requires that they be modified. In some fields, later research has shown that earlier assumptions were incorrect. In that case, the earlier beliefs must be abandoned and replaced by new tenets. That is how science operates. We are sufficiently confident of the accuracy of our belief in the principles of friction ridge analysis and comparison that we should never fear put them to the test.

We, in the working identification field, have done little pure research as it relates to our discipline. But we are changing in this regard. To be sure, in the 1960's we discovered that the biologist’s stain Ninhydrin was a good new method to develop old latents on porous surfaces, and thereafter we also became enamored by cyanoacrylate fuming as well as laser illumination as new latent visualization processes.  We even succeeded in transforming the way in which we store fingerprints and retrieve them from the old fingerprint card files by creating AFIS and IAFIS.  But these are merely practical applications of the use of a technique. While they afford an untapped potential for enlarging our base of knowledge, these technical advances did not test the underlying premises upon which friction ridge individualization rests.

Glenn Langenburg’s comments on Kasey Wertheim’s website “The Weekly Detail,” some time ago asked some very relevant questions, and let me just repeat them here:

–                      what are the frequencies with which spurs, short ridges, dots, trifurcations, and the like, occur?

–                      what would those frequencies tell us about weighing the various minutiae?

–                      with what frequency do open fields (continuous ridge series with no minutiae) occur?

–                      how can one calculate tolerance ranges for various types of distortions?

–                      when we say total agreement between known and unknown, what does that mean?

–                      are there ways to measure all levels of detail, using a similar technology that the U.S. Postal Service used for the analysis of handwriting, and formulate an actual correlation value between a known and an unknown?

–                      would the inclusion of these types of measurements increase the uniformity of examiner conclusions?^[11]

These and other questions are legitimate research projects that we ought to endeavor to support and undertake. Over the years, a little bit of truly scientific research in friction ridge examinations has been conducted by some people who are not, or are no longer in law enforcement, but younger examiners appear not to even be aware of that research.

The issue I intend to stress here is that there remains  much opportunity for groundbreaking research in the field of friction ridge impression evidence. We know that what we are doing is valid. Whether we can we impart that knowledge to others outside our profession is the critical issue we face. To a great extent, how we are viewed by the scientific community will continue to depend on the degree to which we are spurred on to conduct new research that focuses on fundamental questions about individuality, about comparison methodology, about partial impressions, about many other issues, that may lead to objective criteria useful in undergirding the validity of what we do. The tools that facilitate the research now exist by the availability of solid computerized databases on the state as well as federal levels. Let’s use them some for research, and not just to get cold hits.

Last October [2004], NIJ sponsored a conference in northern Virginia assembling a number of folks to discuss some of the issues in friction ridge individualization that are deserving of research. That was a very useful exercise, and we can only hope that it will spawn some needed research that will help us undergird by scientific findings what we already instinctively know to be true.

The last point . . .

6.   When do you begin to prepare for a Daubert hearing or a Daubert-like challenge?

The answer is NOW!  If you wait until the day before you need to appear in court, it will be too late to review meaningfully the knowledge you must be able to display on the witness stand. No matter how often you may have appeared in court, the questions about the underlying principles of friction ridge individuality – the arguments brought up at Daubert hearings by the critics  – the many hard questions on the various Daubert factors of error rate, standardization, peer review, testing, and the like  – all of these things require deliberate thought and careful preparation of an ongoing nature. We need to constantly keep studying and reviewing, even if we think we already know that “old stuff.”

Every examiner should begin to compile and organize his or her own three-ring binder in which all of the questions that have been asked of our very best experts by skilled cross-examiners are collected, along with the answers (in your own words) that those questions merit.  When properly prepared, the binder will be a compendium of friction ridge examination knowledge that will encompass nearly all of the information that may be elicited of an examiner on the stand.

It should also include lists of sources (books and articles) on specific items of friction skin knowledge, as well as your own CV. Talking about your resume, you need to update it on a regular basis, adding to the list of the cases in which you have worked and/or testified, and supplementing entries about your continuing education efforts and seminars you have attended. You will also want to add the salient new information you come across as you peruse the professional literature to which you subscribe.

Preparing such a notebook or binder is a monumental task.  You may work on it for weeks, perhaps even months.  But when it is completed, it will be the sole source you need to consult to refresh your knowledge prior to giving testimony as an expert or to find a reference to another publication.  And as you review that binder periodically, you will truly be expanding your own understanding.

A Final Point on preparing for court . . .   Do not overlook the specific issue you face in the case.

As part of your preparation, also give thought to assembling data that focuses on the precise issue encountered in the case on which you are expected to testify.  If you are dealing with a bloody palmprint, be prepared to answer questions on the frequency with which you have encountered and dealt with such impressions, be able to discuss what sets them apart from other latent impressions, and what the literature has to say about such evidence. It would not be satisfactory to answer that you have examined thousands of latent fingerprints developed by using powder techniques when the questioner asks about palmprints in blood.

If you are dealing with a latent developed with ninhydrin, for example, your experience in dealing with powdered latent impressions may be of less interest to a cross-examiner there also, who may focus almost exclusively on the use of that particular method of visualization. Again, be prepared to refer to the literature that deals with it, and be able to explain in some detail the manner in which Triketo-hydrindene hydrate 1, 2, 3 (Ninhydrin) reacts with the minute quantities of organic and inorganic matter finely dispersed in perspiration so that it may remain preserved in porous substrates.

                                                                   CONCLUSION.

If I can restate, in conclusion, one thing that should come true loud and clear from my presentation, is that ALL OF US, at whatever level of competence or experience, must continue to educate ourselves about every aspect of friction ridge science and comparison methodology. We just cannot afford NOT to do it.

When I spoke at the Arlington, Virginia, 50^th Annual IAI Conference in 1974, I said THEN something that continues to have relevancy today.

I said that we’ve had an easy ride for a long time with fairly slipshot techniques and inadequate courtroom presentations. I said we had gotten away with it largely because lawyers didn’t know much about forensic sciences.  But I warned that lawyers were being trained better all the time in dealing with scientific evidence, and that they were discovering the information to conduct more meaningful challenges.

Well, folks, that was true in 1974 and it is a hundred-fold more true today.  We just cannot afford NOT to keep studying and deepening our understanding about everything that has to do with friction ridge impression evidence.

I was not trained initially as a scientist. My upbringing in Belgium was essentially what was called a  “classical” education – it would be considered “liberal arts” in the U.S.   I had to study science on my own after I was an adult and, as part of working in and studying forensic science, began to see a need to acquire knowledge about how science works, what its purposes and methods were.  I also needed an appreciation for how these scientific methods differ from what later became second nature to me: the legal method.  I am still uncomfortable with higher mathematics; I will never truly understand logarithmic equations – the algorithms that make IAFIS work.

But in the 1960's when I was progressing in my studies, the scientific and pioneering research of Dr. Harold Cummins opened my eyes to a part of fingerprints of which I had been largely ignorant, having been trained in the basics of “working with fingerprints” – classification and identification – as most fingerprint examiners had been. The underlying premise of fingerprint uniqueness was part of my initial training in the field, but, like all the other fingerprint folk that I knew, I  accepted it at face value and didn’t understand the biology on which it was based. I would have been hard pressed, even in the 1970's, to explain and justify why all friction skin is different, or how friction skin develops prenatally and ultimately comes to develop into patterns that will be arches, loops, and whorls. I was limited to explaining these things by slavishly repeating the one or two sentences in training texts  that described the process.           

But I have made a determined effort to understand enough of it to give me a certain comfort level in dealing with it. That study continues to this date, and the more I study, the more I realize there are so many more heights to scale.

If my presentation appeared to overwhelm you – if what I suggest we have  to do rang a bell for you and you realize that you have a long way to go in assimilating all the knowledge that you may be expected to display in court, do not let it discourage you. It CAN be done. Today, the sources and resources exist to educate yourself at virtually no financial cost. There are extremely informative websites that you can easily access that can give you all of the knowledge that is needed or, at least, steer you in the right direction.

I know I am preaching to the choir. Your being here suggests that you are already well on the way to be “totally current” on what has been going on in the profession. Perhaps you know  more about it than I do. If so, I apologize and thank you for your courtesy in listening to me. It was truly a pleasure to be here.

          END

      Posted: April 19, 2005