Science, tradition at war in forensics

Fingerprints ruling roils mainstream

October 29, 2007|By Jennifer McMenamin | Jennifer McMenamin,SUN REPORTER

Law professor David Faigman was teaching at a national school for judges the week that a ruling to limit testimony about fingerprint evidence was issued in a murder case in Philadelphia.

The instructor asked the dozen students in his class whether they agreed with the judge's decision and whether they would rule similarly in their own courtrooms. Everyone thought the federal judge "got it right on the science," Faigman recalled of the 2002 case.

"And," he said, "all 12 said they would not go back and exclude fingerprint evidence from a case in their courts."

FOR THE RECORD - An article in Monday's editions of The Sun about fingerprint evidence in a Baltimore County murder case misidentified the victim of the January 2006 shooting at Security Square Mall. He was Warren T. Fleming.
The Sun regrets the errors.

As legal experts reacted last week to a Baltimore County judge's ruling that fingerprint evidence was too unreliable to be allowed in a death penalty trial, many discussed the challenges involved in persuading judges and lawyers to question long-held assumptions -- including the notion that fingerprint evidence is infallible.

"The pressure is so strong against a ruling outside of the mainstream, no matter the evidence that supports it," said Faigman, a professor at the University of California's Hastings College of the Law who has taught at the National Judicial College.

Patrick Kent, chief of the Maryland public defender's forensics division, said each party in the criminal justice system bears the burden for what he sees as problems with forensic evidence.

"There are judges who have not had the courage of their convictions to make rulings based on the evidence -- or the lack thereof," said Kent, who led the challenge to the fingerprint evidence in the Baltimore County case. "There are defense attorneys who simply were not conversant in competently representing their clients on forensic issues. And there are state's attorneys who have not scrutinized the evidence that they placed before a jury."

U.S. District Judge Louis H. Pollak, who issued the 2002 ruling in Philadelphia, reversed himself within two months. And until the ruling in Baltimore County, no judge had restricted testimony that fingerprints lifted from a crime scene conclusively matched those of a defendant on trial for the crime, experts say.

Baltimore County Circuit Judge Susan M. Souder's Oct. 19 ruling went even further, barring prosecutors from presenting any testimony about fingerprints.

Attempts to obtain comment from Souder were unsuccessful. In an interview with The Sun at the time of her 2002 appointment, Souder said she planned to be "fair and open-minded."

"Somebody," she said, "who would listen to an argument they haven't heard before."

Prosecutors in the Baltimore County case cannot appeal the decision, and they have asked the judge to reconsider her ruling.

Some say concerns over the reliability of fingerprint evidence are groundless, and representatives of an international group that certifies fingerprint examiners say that the process, when carefully followed, leaves "zero" chance that a person will be wrongly linked to a crime.

But questions about the reliability of fingerprinting as a crime-solving technique were raised in 1997, when scholars and forensic scientists published articles questioning the scientific foundation and standards of the practice.

"For all this time, the argument was made that because all fingerprints are unique, fingerprint examiners are accurate at detecting the source of a fingerprint," said Simon A. Cole, a professor at the University of California, Irvine and the author of Suspect Identities: A History of Fingerprinting and Criminal Identification.

"That actually doesn't follow at all," he said. "Just because all faces are unique doesn't mean that eyewitnesses are all accurate. But somehow, it's a seductive fallacy that people bought into, including ... defense attorneys."

In the 2002 case in Philadelphia, federal prosecutors were seeking death sentences against three members of a drug gang accused of killing four people. Two of the men were linked to a killing through prints lifted off a car.

Pollak, a former dean of the Yale and University of Pennsylvania law schools, stunned the legal community by ruling that the prosecution's expert witnesses could point out the similarities between latent fingerprints from the crime scene and the inked prints of the suspects -- but could not testify that they were, beyond a doubt, a match.

After a three-day hearing, the judge reversed his decision.

"When Judge Pollak first decided the case, I don't think he appreciated how controversial it was going to be," Faigman, the law professor, said. "He called it like he saw it on the first case, wrote an opinion, and then the shouting began."

Souder, 51, worked as a partner in a prominent Baltimore law firm and the Baltimore litigation department of a practice with 11 offices nationwide. Appointed to the bench in 2002, she won election to a 15-year term in 2004.

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