Re: IAI Certification Issues  -  International Association for Identification

Regarding the " Letter to the IAI RE: Certification Issues"

From Criminalist / LPE / Deputy Sheriff / IAI member
Forensic Science Department
County Sheriff's Office


Dear Sir,

For God sakes man, stop whining! The United States Constitution guarantees the right of the defense / the accused, to not only put on a vigorous defense, but the right to confront witnesses. You are a witness. An expert witness.

[Editor comment: in a separate quote, the author states "If you knew me, you would find that I do have a weird sense of humour, and even though this may come across somewhat like a cold slap in the face to some, I did not mean it in a mean-spirited way.]

You wrote in the Weekly Detail, "I have recently been in the position of having to defend my Certification in the courtroom..." So what. That's life. Every time you take the stand the defense has the right to question the evidence, every word written in your report, and every word that you utter while testifying. Did you expect anything less? Did you not anticipate this? Did you expect that you could hold up your Certification and not be questioned about your knowledge, training and abilities?

( " Having worked hard to attain CLPE status, I am extremely upset by having to defend it!" ) The test you took for your Certification is merely a snapshot in time. Every time you testify you have to be qualified on the stand as an expert witness. Bruce Lee once had a student who held the rank of black belt come whining to him after a bout, in which the student was defeated. "But you don't understand...I have a black belt, and I lost." Bruce asked him if he thought the mere act of having the belt would have made him prevail. Would it have somehow miraculously undid itself from his waist, and attack and defeat his opponent.

Don't whine to the IAI. You got beat on the stand. ( By beat, I mean you did not get your point across to the jury, and make them understand, in order to win the argument.) The reason; knowledge is fixed in time, whereas knowing is a movement. Think...react...anticipate. Before you testify you should think about the different ways the defense could attack your Certification, and how you would handle those questions. You put yourself in the position of being the quintessential "Deer in the headlights." The defense, how dare they, questioned your IAI Certification? That is their job. I guarantee that they would have questioned you if you were not certified; if you took the Certification test and did not pass it; what your score was, and/or why you did not get 100%, etc,etc...

You wrote,"Simon Cole was retained by the defense and was allowed, by a visiting judge, to testify." Okay...that's their right. Not being familiar with Simon Cole, I assume he is a latent print expert, and a latent print examiner. Which would lead me to the following questions. Did Simon Cole compare the latent palm print impression on the cashbox, with the defendants rolled inked impressions, and if so, did he agree or disagree with your positive identification? If he agreed with your positive identification, did he author a report of his conclusions, present that to your ADA, and testify as a prosecution witness? If he did not compare the latent impression to the inked, but was afforded the opportunity to do so, did your ADA cross examine him about that fact. Brandon Mayfield is an all too convenient smoke-screen.

The defenses options are to attack the source of the latent, the age of the latent, the science, or the examiner. It is clear which way they went.

The Brandon Mayfield case. My thought is, "Get over it!" Did you do the comparison work in that case? No. Do you always use the original evidence when you make comparisons? Yes..or you should...or your lab should have a policy in place that you do. Not having first-hand knowledge of the case, from reading the accounts of the Mayfield case, have you formed any sort of opinion? The FBI apparently used copies of original evidence to make their comparisons and identification, something that I would not be permitted to do, and they realized their mistake only after viewing the original latent impression. I believe it was in an IAI publication that I read, "If a pilot error causes an airplane to crash, that does not mean the scientific principals that explain flight are flawed." This might have been a fitting anology for you to have used on the stand.

In your letter you stated that,"defense refused to stipulate to expertise and immediately initiated a line of questioning regarding the Mayfield case." Did I mention that Brandon Mayfield lives in our county? Local reaction...if synchronized panic were an organized sport, several of our Deputy District Attorneys would be in the Olympics. I guess I'll just have to deal with it.

You wrote,"The assistant DA, who is very capable, addressed all the usual areas in the qualifications phase, including IAI Certification, and went into some detail about the difficulties in attaining CLPE and the relative few there are." And the defense did not stipulate to your expertise ? Shocking! Your DA opened a door the size of a Mack truck, and invited the defense right in. This is not a knock on the IAI, ( I am a member ) but as I understand it, any latent examiner who has X # of years on and/or college education can take the Certification test. How many thousands of examiners who are not certified, are, as of this moment, eligible to take the test? The finest latent print examiner I have ever known, retired a few years ago. He had 32 years on as an LPE. I asked him why he never took the Certification test. He told me it was for several reasons. He was nearing retirement. The county did not pay him anything extra to obtain his certification. The county would not pay for the test. The test put a limit on the amount of time each applicant could spend making the comparisons, and in actual case work, he was not under such a time restraint. The IAI used copies of latent prints in their testing, and he was not allowed to use copies in his casework. And finally, he said that the Certification would only hold so much weight on the stand, and not be the end-all of his lifelong work in the science of fingerprints.

Look above at my somewhat lengthy official title. Notice it reads LPE and not CLEP. I am not certified. I am currently eligible to take the IAI Certification examine. I think if I chose to do so, I could pass the test and obtain my certification. I have many years on, made hundreds of thousands of comparisons, testifed as an expert in Circuit Court and U.S. District Court, and have attended several latent print schools, including the old FBI advanced three week latent print examiners school at Quantico, Virginia. I can be questioned about not being certified, just as you can be questioned about being so. I think I am prepared to anticipate and answer most questions put to me on the stand.

I have only addressed the subjects in your letter that really torqued me off, although your idea that the IAI or JFI publish "any change in an examiner's Certification status," ( Gee, I wonder what that change would be, or what caused that to occur?) I find ridiculous and irresponsible. ( Also see lawsuit, if/when the publishing results in the examiner not being hired or retained by an agency in the future.) The reasons for erroneous identifications, though rare, do occur, and for different reasons, including " bookkeeping errors." An erroneous latent print identification can be a career buster. But on the other hand, some agencies discipline, re-train, or keep their examiners on, following the mistake, with certain limitations such as requiring the examiner to have multiple verifiers of their work, or not being allowed to testify to their conclusions in court.

In conclusion...the IAI is not going to take the stand with you. Don't wrap yourself in your Certification when you testify, and don't blame the IAI. Your certification is only one piece of your background, and as you know by now, everything you testify to can and will be challenged. Afterall, that is our criminal justice system, and the American way.

I also believe that you should be proud of your Certification, because you did put in your dues to attain it, and the IAI is a fine and respected body. My purpose of writing this letter was not to discourage anyone from taking the Certification test, or obtaining their Certification. I know I have exceeded the analogy limit, but I will leave you with a final one. " The mighty dragon, stranded in shallow waters, amuses the frogs."

After a brief lecture from my supervisor about my supposed "anger control problem" ( My misjudgement in having him proof read this e-mail. ) I finally end with this caveat. The opinions and views of this Criminalist are not necessarily those of the Washington County Sheriff's Office, their subsidiaries, or their employees.

______________________________________________________________________
Dear Sir,
 
I have read, and re-read, your lengthy reaction to my letter and I have to admit that your penchant for missing the point is manifest.
 
Naturally, every time one of us testifies (certified or not) we expect, increasingly it seems, rigorous cross-examination and refusals to stipulate. That is as it should be, because if you are going to testify you should be prepared for any line of questioning. I happen to enjoy the challenge and am all for the maintenance of high standards, awareness of continuing challenges, and ongoing training. I am not in the habit of waving certification around in the expectation that it will make my life easier. Rather the contrary. My experience, certification, knowledge, background, training and track record are all fair game in the courtroom. Do you think I am unaware of this? Your condescending redundancies, and peculiar analogies, would suggest that you are preaching to a novice rather than an experienced examiner, and I don't appreciate it. The strident tone and finger-wagging sermonising of your correspondence would have me believe that you are more an apologist than a realist, though I expect that your writing style masks otherwise good intentions...
 
Your blithe interpretation of my complaint as "whining" was both insulting and juvenile.
 
Regarding the Brandon Mayfield case, your suggestion that we just "get over it" showcases your apparent lack of understanding of what is going on in courtrooms accross the country, and indeed worldwide.

Your ignorance of Simon Cole's role in contemporary argument in your chosen field is testimony to your cobwebbed professional standing.

Your self-congratulatory belief that you are "prepared to anticipate and answer most questions" put to you on the stand is curious. If you were asked about your professional affiliations, you would no doubt proudly proclaim your IAI membership. If you were asked about your general knowledge of the Mayfield incident, I assume you would be able to respond. I can guarantee you that if you were then asked about the reaction within the IAI, following review of all the particulars in the case, and the subsequent action taken and papers published etc..., you would not have had an answer. Nobody did.
 
I would agree with you on two issues only. One is the fact that the vast majority of latent examiners are not certified by the IAI. I would further agree that this in no way diminishes their ability, professionalism, or dedication. The pursuit of certification tends to be a personal choice, unless it is mandated by your Department. I understand that most Departments, including my own, do not compensate for certification, or for the study material or test fee, so many examiners do not undergo the process, and that is fine. Those of us who have taken the time to challenge ourselves, and have succeeded, deserve, at the very least, the courtesy of response from the IAI when inquiring as to their position on the Mayfield case more than ONE YEAR after the fact. (yeah, I know....'get over it'). In fact, ANY member of this organization has the right to request this information.
 
The second issue that provoked a nod of agreement was the wisdom of your supervisor.
 
If you ever "choose to" pass the certification test, you might discover that it is something worth defending, and that the IAI should feel likewise.
 
I wish you well, and would invite you to re-review my original letter for content and substance.
 
Sincerely,
S

The following is a motion to exclude fingerprint comparison testimony in a case that is unrelated to the above
************************

    IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA 
     

STATE OF FLORIDA
vs.
DEFENDANT


    MOTION TO EXCLUDE FINGERPRINT COMPARISON TESTIMONY

The Defendant, by and through undersigned counsel, respectfully requests this Honorable Court to enter an Order excluding testimony on the subject of fingerprint comparison identification in general and a fingerprint comparison made of the Defendant, and as grounds therefor would show: 

1.  The State has listed a James A. Cot as a witness in this cause.  James A. Cot is a fingerprint examiner.  He is anticipated to testify that a comparison of latent prints lifted from the crime scene matched known prints of the Defendant.  Currently, the International Association for Identifications (IAI) sets no minimum number of points of comparison before an examiner can testify to a “match.”

2.  According to Brim and Murray, testimony of a match between a suspect’s characteristics and characteristics from a sample taken from a crime scene, without introduction of a statistic to educate the jury on the uniqueness (or lack thereof) of the characteristic, militates against the introduction of such testimony.  Brim v. State, 695 So.2d 268 (Fla.1997)(underlying principles as well as methodology of each step of scientific evidence must independently satisfy Frye test); State v. Murray, 692 So.2d 157 (Fla.1997)(excluding DNA evidence). 

3.  As the supreme court stated in Murray, “in overly simplified terms, the results obtained through the first step . . . simply indicate that two . . . samples look the same.  A second statistical step is needed to give significance to a match.”  Murray, 692 So.2d at 162.  In the present case, the State intends to offer evidence that two samples of fingerprints look the same, without offering a second statistical step required for admissibility.   “Certainly, a judge’s or juror’s untutored impression of how unusual a [person’s characteristic] is could be very wrong.  This possibility militates in favor of going beyond a simple statement of a match, to give the trier of fact some expert guidance about its probative value.” Murray, 692 So.2d at 162 (citation omitted).

3.  “The burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.”  Murray, 692 So.2d at 161 (citing Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995)).  In Murray, the court reiterated that DNA results are reliable, “provided the laboratory has followed accepted testing procedures that meet the Frye standard to protect against false readings and contaminations.”  Unlike DNA evidence, there are no national standards that apply to fingerprint comparison identification procedures.

4.  Recently, the National Institute of Justice, the research and development branch of the United States Department of Justice, published a solicitation for “Forensic Friction Ridge (Fingerprint) Examination Studies,” with an application deadline of July 28, 2000.  The National Institute of Justice “identified the need for validation of the basis for friction ridge individualization and standardization of comparison criteria.”  The purpose of the solicitation was, in part, to ensure that expert testimony regarding fingerprint (or friction ridge) comparison could meet the standard for admissibility under Daubert v. Merrill Dow Pharmaceuticals, 113 S. Ct. 2786 (1993).  Florida has declined to adopt the more lenient federal standard and continues to apply the stricter Frye standard for admissibility.  Brim v. State, 695 So.2d 268, 271-272 (Fla.1997). 

5.  Further, the background section of the National Institute of Justice solicitation reveals that concern over the lack of standardized procedures for friction ridge examination began being addressed by the Federal Bureau of Investigation in 1995, culminating in the creation of a Fingerprint Research Advisory Panel (FRAP) in May, 1999.  The FRAP reached a consensus that the field needed both “basic research to determine the scientific validity of individuality in friction ridge examination based on measurement of features, quantification, and statistical analysis” and “procedures for comparing friction ridge impressions that are standardized and validated.”  The study could continue for two years.

6.  Based on the lack of standardized procedures related to friction ridge examination, the lack of a statistic regarding the frequency of friction ridge characteristics in the population, and the federal government’s recognition of the need for validation studies, the testimony of James A. Cot, or any other fingerprint comparison witness, should be excluded from introduction at trial.

    NOTICE OF HEARING

YOU ARE NOTIFIED that the above will be heard before the Honorable Nancy Moate Ley, Criminal Justice Center, 14250 49th Street North, Clearwater, Florida 33762, on
_______________ at ________.

I CERTIFY that a copy of the foregoing has been furnished to the State Attorney, Criminal Justice Center, Clearwater, Florida, on _____.



_________________________________
Attorney at Law
PUBLIC DEFENDER, SIXTH JUDICIAL CIRCUIT
Criminal Justice Center
14250 49th Street North
Clearwater, FL 33762



                   IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
     
STATE OF FLORIDA
vs.
DEFENDANT


    ORDER

The foregoing cause coming on this day to be heard upon Defendant's MOTION TO EXCLUDE FINGERPRINT COMPARISON TESTIMONY, and the same having been argued by counsel for the respective parties and duly considered by the Court, it is ordered that said Motion is hereby ____________________.
IT IS FURTHER ORDERED that _________________________________________________
_________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.
DONE AND ORDERED at Clearwater, Pinellas County, Florida this _________ day of _______.



                    _____________________________________
                                CIRCUIT JUDGE



COPIES TO:
Public Defender
State Attorney