October 26, 2007
Additional Thoughts on Maryland v. Rose (Fingerprints)
Having just read the opinion in Maryland v. Rose, my initial reaction is an odd mixture of yawns and gasps. On the unreliability of fingerprints, the opinion is in many ways completely unremarkable. The arguments offered against fingerprints have now been around for quite some time. What is remarkable is how long it has taken for courts to begin acknowledging the problems with fingerprints.
The broader aspects of the opinion, however, are arguably more fascinating. First, the judge invokes the "death is different" concept almost like an incantation, and then says nothing more about it. Is the judge suggesting that the holding be limited to death penalty cases only? While one could develop a theory by which the constitution influences the interpretation of Rule 702 in certain contexts, that conclusion is not immediately obvious. In addition, it seems that the criticisms of fingerprints are sufficiently serious that the problem is not just confined to death cases.
Second, I am astonished at how the court almost cavalierly sidesteps the issue of being in a Frye jurisdiction and subject to a "general acceptance" standard. While I have previously argued that Frye and Daubert operate similarly in practice, never did I expect that an opinion from a Frye jurisdiction would feel so extraordinarily "Daubertesque."
Finally, the opinion is a testament to how influential the Daubert criteria and mindset have become. The court emphasizes the use of objective standards, testing, and error rates. One gets the sense that expert intuition was summarily shown the door.
And more on Fingerprints....
Here's a follow-up story on Judge Souder's exclusion of fingerprints for not being based on "a reliable factual foundation." See Here. There are some insightful comments from Sandy Zabell and some not-terribly-insightful comments from Thomas P. Mauriello, an adjunct professor at the University of Maryland. Indeed, a comparison of Zabell's (a statistician) and Mauriello's (a criminologist) comments nicely illustrates all that is wrong with forensic science as it is practiced today. The former offers the critical comments of the scientist, and the latter the true-believer. Evidence, not faith and anecdotal experience, should be the currency by which the forensic identification sciences are measured.
October 25, 2007
Exclusion of Fingerprint Evidence
A Maryland trial court excluded the State's proffer of partial latent fingerprint evidence last Friday. The judge based her ruling on the State's failure to demonstrate that the technology produced valid results. Although the court used the Frye test, the opinion reads like a primer on Daubert. The Baltimore Sun has had a few articles on the case, and an editorial. One article and the PDF of the judge's decision can be found at the following link: Here. The site is fully searchable, so you should be able to find the other articles fairly easily, if you are interested.