Has the ABA Criminal Justice Section become the spokesperson for the criminal defense bar?
By Andre A. Moenssens
Douglas Stripp Professor of Law Emeritus,
University of Missouri at Kansas City
Professor of Law Emeritus, University of Richmond, VA
Forensic Consultant
home: in the heartland of Indiana, if that is important!
In the Spring, 2007, issue of CRIMINAL JUSTICE - the publication of the American Bar Association's Criminal Justice Section - at p. 36, appeared a poorly researched “law” piece titled “The Limitations of Fingerprint Identifications.” It was authored by a third-year law student. The writer relies on such unimpeachable “authority” as newspapers articles that exploit the sensational. Indeed, his in-the-text statements are attributed primarily to 25 references to newspapers, accompanied by several references to articles by criminal defense advocates.
The writer's lack of appropriate scholarship is of course not unusual if we are confronting an advocate, though it is the antithesis of what scholarship really means. It is particularly strange though, and at the same time ominous, because the law student-writer is a person who will clerk this fall for the senior judges of the Court of Appeals for the District Court of Columbia. In that position, will he be in a position to subtly influence the writing of opinions of that court? Doubly strange it is in this case, because the ABA's CRIMINAL JUSTICE issue is edited by lawyers and a legal educator who should know better about bias and unreliable “authority.”
The unscholarly part of the article is not necessarily in its content. Rather, it is in the overt way in which secondary and tertiary sources are being repeatedly cited as, presumably, adequate if not primary “authority” for positions that the writer advocates. At the same time, he consciously avoids preserving a balanced approach; he indeed studiously avoids any references to positive findings that might impair the impact of his article. For him, only negatives will do!
The very first page of that article is almost totally devoted to a discussion of two erroneous individualizations that are well known to forensic science, as they are to prosecutors, defense lawyers, and to those with an interest in scientific evidence. The cases are: the FBI's Brandon Mayfield misidentification and the Stephan Cowans misidentification at the Boston Police Department. About both of these tragic events, there are very important and readily available official sources that could be referenced. Unfortunately for the writer, these sources, in addition to reporting the events factually, also specify the steps necessary or already taken to prevent a recurrence of the errors and thus might prove something positive came out of the tragedy.
The primary authorities for the Mayfield case are the United States Office of the Inspector General's official Report, available online in early 2006, and the FBI's own self-analysis and follow-up in January, 2006. Both contain frank discussions of the errors and steps to prevent their recurrence. There have appeared other authoritative sources on the subject in the peer-reviewed Journal of Forensic Identification and elsewhere.
You will find neither the official or peer-reviewed sources, nor the measures implemented to prevent recurrence, in the CRIMINAL JUSTICE article! Instead, the “authority” for the Mayfield debacle is an article in THE CHAMPION, the periodical of the National Association of Criminal Defense Lawyers (NACDL), and three newspaper articles cited repeatedly. The CRIMINAL JUSTICE article's author also makes reference to a criminology professor and academic fingerprint critic (Simon Cole), who is supposed to having “documented” 20 similar identification errors (though that documentation itself is the subject of much criticism). The Cole documentation, published in a readily available periodical, is also not cited!
Why go to the original source when one can cite an NACDL publication and expose-slanted newspaper stories as authority?!
To be sure, there is one reference in our law student critic's piece to a peer-reviewed journal. It was - you guessed it - to an article critical in part of fingerprinting in that it attributed contextual bias to fingerprint examiners. In the study, examiners, in a blatant effort to influence their comparison with “incriminating” bias, were fed false case information. But of course there are no references to any criticism of the (U.K.) Dr. Itiel Dror study. There are also no references to other researchers' findings that bias is not nearly as serious a problem as critics hoped it would be.
There are only two court decisions cited in the article. To no one's surprise, they are the (almost) only two decisions critical - though only in part - of fingerprinting: United States v. Llera Plaza and Commonwealth v. Patterson. Apparently there is, in the mind of the student writer, no positive court decision viewpoint to be found. The 50+ favorable court decisions were simply too hard for the student writer to find.
SWGFAST (the Scientific Working Group on Friction Ridge Analysis, Study and Technology) is mentioned once in passing as recommending blind verification. Perhaps in an effort to link that group of 25+ international forensic scientists, practitioners and academics to the FBI's Brandon Mayfield disaster, that group is obliquely referred to as an “FBI-sponsored group,” even though its membership includes only two or three FBI examiners. The effectiveness of this group's recommendation that blind verification be done is - are you surprised? - “doubted.”
The readers of CRIMINAL JUSTICE deserve better!
The article's overall impact reflects poorly, in my view, on the supposed integrity and impartiality of the American Bar Association, an organization of which I have been a member for many decades. It makes one wonder if CRIMINAL JUSTICE has become an organ for the NACDL instead. It also suggests there is a deliberate effort afoot by at least some individuals to create a “legal literature” critical of fingerprinting, that can then be further cited as “authority” for this article's premise. In the legal literature, it can link up with other critical law review articles written by non-scientist academics.
That an article as poorly researched as “The Limitations of Fingerprint Identification” could be published in a supposedly impartial ABA journal additionally reflects negatively on the value placed in the ABA and in some law schools on proper legal research and writing, a quality I have sought to impart to law students during my 40-year career in legal education. “Scholarship” must have gained new meanings in today's Internet world, where sensational newspaper articles apparently pass for the “best” authority!
And, as I had the opportunity to explore elsewhere at length, while scholarship remains of importance in the science world, it is apparently no longer required in the “legal” literature, where advocacy pieces are ready to be passed off as unvarnished truth even on science topics! (See, Andre A. Moenssens, “Handwriting Identification Evidence in the Post-Daubert World” 66 U.M.K.C. LAW REV. 251, at 297-309 [1997].) As to its failings of appropriate research, the CRIMINAL JUSTICE article thus fits in well with what Justice Stewart said in Jacobellis v. Ohio [1964] when he confessed to being unable to define pornography, though he added, “But I know it when I see it.”!
CRIMINAL JUSTICE has now educated all of its readers on the unreliability of fingerprint identification! Give us a break!
----
