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IN THE CIRCUIT COURT OF COOK COUNTYILLINOIS))XXXXXXV.))JUDGE XXXXXXXXXXXX)PRESIDINGMOTION TO EXCLUDE STATEMENTS OF THE PROSECUTION’S FINGERPRINT EXAMINER REGARDING ABSOLUTE SOURCE ATTRIBUTION AND UNIQUENSS Mr. XXXXX, through his attorneys in the Cook County Public Defender Office, asserts the following:I. INTRODUCTIONAccording to a broad consensus of experts in the fingerprint community, the days are over when fingerprint examiners should testify that all fingerprints are unique and that a latent fingerprint from a crime scene can be matched or identified to one person to the exclusion of all others in the world. The forensic community has broadcast this message clearly through published studies, through proclamations by distinguished panels of experts, and through changes in protocols of the nation’s leading crime laboratories. Despite this major reform in the forensic fingerprint community, the prosecution’s fingerprint examiner in this case still seeks to testify that the latent print in this case “was made by the person whose fingerprints appear on the major case standard marked XXXXXX.” This opinion is unsupported by the scientific literature, and has been rejected by the larger forensic community. Moreover, courts are catching up with the science, and are now restricting examiners from giving such unscientific opinions. If the prosecution’s fingerprint examiner is permitted to testify to this outdated claim at trial, his testimony would overstate the probative value of a fingerprint association and would thereby prejudice Mr. Guedes. II. FINGERPRINT EXAMINERS USED TO MAKE UNSCIENTIFIC CLAIMS OF ABSOLUTE SOURCE ATTRIBUTION AND UNIQUENESSYears ago, fingerprint examiners would assert fingerprint associations in terms of absolute source attribution, claiming that a fingerprint “matched” a suspect or could be “identified” as having come from the suspect to the exclusion of all other people in the world. Examiners would base this opinion, in part, on the claim that every fingerprint in the world is “unique”- meaning that no two fingerprints anywhere in the world look the same. Finally, examiners would couple this claim with an additional claim of absolute certainty- meaning examiners would claim that the suspect was the source of the print to 100% certainty. Decades ago, the FBI even went as far as publishing articles on fingerprint comparisons in which they asserted that “in the practice of fingerprint identification, there is no room for ‘probable’ identity.” In the past, this certainty in an association opinion was even mandated by SWGFAST, a leading professional organization comprised of fingerprint examiners from the FBI and other law-enforcement crime labs. III. THE FINGERPRINT COMMUNITY NOW REJECTS CLAIMS OF MATCHES OR ABSOLUTE IDENTIFICATIONToday, the forensic fingerprint community rejects the outdated claim of absolute source attribution- meaning the field rejects unscientific claims that an examiner can single out one person as the source of a latent print to the exclusion of all others in the world. As a matter of science, there was never any justification for claims of absolute matches or individualization. Rather, the forensic community now realizes that in any endeavor (such as fingerprint comparisons) where error is not only possible but expected, claims of absolute certainty are unjustified. This reform has been clearly stated by two of the most important panels of forensic experts to publish on the topic- the Human Factors Working Group and the NAS Committee. This reform is also supported by a leading professional organization in the forensic fingerprint community- the International Association for Identification. Finally, leading crime laboratories have already reformed their protocols to discontinue claims of absolute source attribution. The Human Factors Working Group has rejected statements of absolute source attribution. The Human Factors Working Group was convened in 2008 to identify and assess various problems and limitations with then-current practices in forensic fingerprint comparison, and to recommend new best-practices that would “reduce the risk of error and improve the practice of latent print analysis.” The Working Group was sponsored by the U.S. Department of Justice, and its members included representatives of law enforcement from around the country: the Lead Fingerprint Specialist with the U.S. Secret Service, the Supervising Examiner with the L.A. County Sheriff’s Police, the Laboratory Manager of the Illinois State Police Laboratory, the Forensic Lab Manager of the Las Vegas Police Department Forensic Laboratory, the Research Program Manager of the FBI Crime Laboratory, a Forensics Committee Member from the International Association of Chiefs of Police, and a fingerprint examiner with the Minnesota Bureau of Criminal Apprehension. One of the official Reviewers of the Human Factors Report was David Grieve, retired Illinois State Police forensic examiner. Over 2 years, the Human Factors Working Group gathered testimony and research, formed subcommittees to generate specific recommendations for forensic fingerprint examiners, and eventually published at 200+ page Report containing their findings and recommendations. The findings and recommendations of the Human Factors Working Group should be considered authoritative in the field of forensic fingerprint comparison.The Human Factors Working Group rejected claims of absolute certainty, stating that an expert opinion of certainty “is not adequately established by fundamental research, and is impossible to validate solely on the basis of experience.” The Human Factors Working Group made a formal Recommendation for best practices in the fingerprint community on this issue, stating the following:“Because empirical evidence and statistical reasoning do not support a source attribution to the exclusion of all other individuals in the world, latent print examiners should not report or testify, directly or by implication, to a source attribution to the exclusion of all others in the world.”Separately, another blue-ribbon panel of scientists from across the country reached the same conclusion in 2009. The National Academy of Sciences (NAS) was authorized by the U.S. Congress to investigate the status of several forensic science disciplines based on the recognition that “improvements are needed in forensic science.” Throughout 2008, the Committee met eight times to hear testimony and receive evidence on many forensic issues, including the weaknesses and limitations of forensic fingerprint comparison. Among others, the Committee heard testimony regarding forensic fingerprint comparison from the Director of the FBI Crime Lab, a Senior Forensic Analyst with the U.S. Department of Defense, an Illinois State Police fingerprint examiner, and a fingerprint expert with the Minnesota State Crime Lab. Their work culminated in a 300-page report entitled “Strengthening Forensic Science in the United States” (“NAS Report”), which has been approvingly cited on forensic issues by the U.S. Supreme Court and other federal courts. The NAS Report should be considered authoritative in the field of forensic fingerprint comparison.Just as the Human Factors Working Group rejected the outdated practice of absolute source attribution, so did the NAS Committee. The NAS Committee found that “no forensic method [other than DNA] has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” In their discussion of absolute source attribution, the NAS Committee quoted Professor Jennifer Mnookin in stating that, “claims of ‘absolute’ and ‘positive’ identification should be replaced by more modest claims about the meaning and significance of a ‘match.’” Finally, in a section about uncertainty and bias in forensic analysis, the NAS Committee stated that, “[b]y acknowledging that there can be uncertainties in this process, the concept of ‘uniquely associated with’ must be replaced with probabilistic association, and other sources of the crime scene evidence cannot be completely discounted.” Each of these statements by the NAS Committee is a direct rejection of old-school claims of absolute source attribution by fingerprint examiners.In addition to these blue-ribbon panels, leading crime laboratories in the country no longer make absolute claims of identification. The U.S. Department of the Army Crime Laboratory recently issued new guidelines, firmly rejecting such claims. (Attachment B). In these guidelines, the U.S. Army noted that, “several well respected and authoritative scientific committees and organizations have recommended forensic science laboratories not report or testify, directly or by implication, to a source attribution to the exclusion of all others in the world or to assert 100% certainty and state conclusions in absolute terms when dealing with population issues.” Rather, the U.S. Army now offers the following qualified opinion:“The latent print on Exhibit # and the record finger/palm prints bearing the name XXXX have corresponding ridge detail. The likelihood of observing this amount of correspondence when two impressions are made by different sources is considered extremely low.” (Attachment B).Similarly, FBI examiners are no longer permitted to testify to 100% certainty. Rather, “examiners testify that they are confident in the conclusion, would not expect to see the same amount of information repeated if the fingerprints originated from different people, and find no physical evidence causing them to doubt that the fingerprints are from the same source.”Others in the forensic science community agree, including the International Association for Identification. The International Association of Identification is the oldest and largest forensic fingerprint association in the world, with a mission to educate fingerprint examiners and publish best-practice guidelines. Its members include law enforcement fingerprint examiners from around the world, including the ISP examiner in this case, Denise Young. In 2010, Bob Garrett (then president of the IAI) stated, “Although the IAI does not, at this time, endorse the use of probabilistic models when stating conclusions of identification, members are advised to avoid stating their conclusions in absolute terms when dealing with population issues.” Finally, the U.S. Department of Justice recently proposed new uniform language for fingerprint examiners, and specifically stated in this proposal that “an examiner may not state or imply that two friction ridge prints originated from the same source to the absolute exclusion of all other sources.” The DOJ stated that such opinions are “not supported by research.” The DOJ proposal also calls on examiners to testify to the fact that “studies have shown that as more reliable features are found in agreement, it becomes less likely to find that some arrangement of features in a print from another source.” (Attachment C).IV. CLAIMS OF ABSOLUTE SOURCE ATTRIBUTION ARE INCOMPATIBLE WITH MODERN RESEARCH WHICH SHOWS PROBLEMS WITH THE REPRODUCIBILITY OF OPINIONS BY FINGERPRINT EXAMINERSNo fingerprint examiner should be permitted to make absolute statements about the source of a latent print- such as the statement in this case that the print originated from Mr. XXXXX - when the research establishes problems with the reproducibility of examiner opinions. Reproducibility of scientific results “is a cornerstone of science.” When researchers in the broader scientific community assert conclusions based on data that is not reproducible, the conclusions are viewed with suspicion or rejected altogether. For instance, the National Institutes of Health attempted to reproduce claims by researchers that a drug called minocycline was effective in treating the neurodegenerative disease ALS, only to find during reproducibility studies that the drug actually worsened the disease. Other reproducibility problems have been reported concerning a wide range of scientific claims, including cold fusion research, stem cell research, and psychological studies.Recently, experts in the field of forensic fingerprint comparison have conducted similar research to assess the reproducibility of examiner opinions. One of the most important studies of this type is the Ulery Study, funded by the FBI. Ulery conducted an extensive study on the reproducibility and repeatability of decisions by 169 fingerprint examiners- whether different fingerprint examiners reach consistent opinions when examining the same print evidence, and whether individual fingerprint examiners will change their decisions over time when re-examining the same fingerprint evidence. The results showed problems with both reproducibility and repeatability. With regard to reproducibility, examiners disagreed with each other about 50% of the time on difficult cases, and even disagreed with each other about 20% of the time on easier cases. Maybe more surprising were the repeatability findings- individual examiners changed their own opinion about 30% of the time when taking a second look at fingerprint evidence identified as more difficult and about 10% of the time on easier cases. The important findings from the Ulery Study are summarized in Table 4:A similar study was published in 2012 by Langenburg et al., in which 176 fingerprint examiners from across the country were provided with 12 sets of practice prints (a latent print and a potential suspect for comparison), and asked to provide association opinions. Just as the Ulery Study showed issues with reproducibility, so did the Langenburg Study. In fact, the participating examiners did not come to agreement on any of the 12 print sets. Rather, they provided split opinions every time:For example, even though Print Set #1 included matching prints, only about 20% of examiners reached an association opinion, while about 25% excluded the “suspect” and 55% reached an “inconclusive” opinion. These results reinforce those in the Ulery Study, and establish that fingerprint examiner opinions are not uniformly reproducible.Repeatability and reproducibility studies are just one of several types of research conducted in the last several years which shed light on the limitations of forensic fingerprint comparison. Additional published research establishes very real rates of error (results clustering around 1-3% for false positives and double that rate for false negatives), variability in suitability determinations (showing fingerprint examiners routinely disagree on the threshold question of whether a latent print is suitable for comparison), and variability in feature identification (showing that different examiners looking at the same latent print identify different data points for comparison and routinely misidentify these features). Given this modern research into the subjectivity and variability of current fingerprint comparison methods, it is clear that absolute source attribution claims by fingerprint examiners are not scientifically justified.V. THE FINGERPRINT COMMUNITY ALSO REJECTS CLAIMS OF UNIQUENESS Outdated claims of “uniqueness” have also been rejected more recently by experts in the field. For examiners in the past to assert absolute source attribution (that a print came from one person to the exclusion of all others on earth), a necessary condition precedent was uniqueness. That is, for an examiner to exclude all other people in the world from a latent print without having examined the prints of all other people in the world, examiners had to claim that every fingerprint was discernibly unique. In that way, if examiners found two prints that looked “the same,” the examiner could claim a common origin without having examined every print in the world. Experts in the field now concede that uniqueness has never been scientifically established. As one prominent expert in the field recently wrote, “the days where invoking ‘uniqueness’ as the main (if not the only) supporting argument for an individualization conclusion are over.” In a recent published study, other experts admitted that “the concept of uniqueness has more the qualities of a cultural meme than a scientific fact.” As the authors explain, “most of the studies attempting to prove the uniqueness of a particular forensic feature suffer flaws that render their conclusion questionable.” Further, the purported basis for fingerprint examiners to have made this claim in the past- personal experience in not having “seen” matching prints in their casework- was never scientifically defensible. As the authors explain, “evidence from a relatively small sample of human beings gives us no reason at all for doubting the existence of an identical set of fingerprints somewhere in the world.” Finally, the authors conclude that claims of uniqueness were an artificial crutch for fingerprint examiners that should be abandoned:“The assumption of uniqueness has been considered an ‘excuse’ for the lack of research data regarding the true likelihood of any particular trait being considered a match. It is far easier to assume uniqueness than it is to come up with actual quantification of match probabilities, and as such, the uniqueness proposition acts as a proxy for serious data collection, misleads the trier of fact into thinking conclusions are more certain than they are, and distracts from the more important issues that contribute to the likelihood of error. . There are few valid reasons to claim uniqueness, or to continue this fruitless search for what remains a philosophical ideal.”Because uniqueness has never been scientifically established, the Human Factors Working Group rejects uniqueness statements by fingerprint examiners. In addressing the question of uniqueness, the Human Factors Working Group states the following- “uniqueness does not guarantee that prints from two different people are always sufficiently different that they cannot be confused, or that two impressions made by the same finger will also be sufficiently similar to be discerned as coming from the same source.” Additionally, the Working Group stated that opinions of absolute identification based on claims of uniqueness are “not appropriate” VI. COURTS NOW REJECT EXAMINER STATEMENTS OF ABSOLUTE SOURCE ATTRIBUTION Based on much of the research and advancements discussed above, courts have started restricting forensic examiners who conduct pattern recognition analyses from offering such erroneous absolute match opinions. As one leading expert recognized, there is an “increasing tendency among courts to refrain from accepting fingerprint evidence as facts that can be expressed with 100% certainty or suggesting that the evidence alone is enabling the exclusion of all other in the world except the concerned individual.” In U.S. v. McCluskey, a federal district court took this approach, holding that a fingerprint examiner could not testify that a print was matched a suspect to the exclusion of all others, and precluded the examiner from a claim of 100% certainty. Additionally, the Supreme Court of Massachusetts held that fingerprint examiners should avoid expressing opinions of absolute certainty. Other courts have rejected opinions of absolute source attribution in similar pattern matching disciplines, such as ballistic comparisons. For instance, in U.S. v. Glynn, a federal district court ruled that the prosecution’s ballistic expert could not testify that fired bullets came from a gun linked to the defendant “to a reasonable degree of ballistic certainty.” The Court held that due to the lack of rigorous scientific data supporting such a statement of certainty, permitting the examiner to testify in this manner “would seriously mislead the jury as to the nature of the expertise involved.” Based on this, the Glynn court restricted the ballistic examiner to testifying that it was “more likely than not” that the fired bullets came from a gun linked to the defendant.VII. THE AMERICAN BAR ASSOCIATION AND OTHERS URGE TRIAL COURTS TO TAKE A CLOSER LOOK AT THE ADMISSIBILITY OF FORENSIC EVIDENCE In the recent ABA publication entitled “Forensic Sciences: Judges as Gatekeeper,” the American Bar Association took a close look at the duty of judges to properly screen and exclude forensic evidence. (Attachment G). In one article on this topic, the authors assert that “courts have a duty to screen expert evidence offerings to prevent misleading evidence from reaching juries.” (Attachment G, p. 29). These authors note that courts have not always been effective in taking up this task, and give specific suggestions of ways that courts can effectively rein in improper forensic testimony. The authors suggest that courts consider “partial admission of testimony,” allowing experts in pattern recognition forensics such as fingerprints to testify to similarities but not to absolute source attribution. (Attachment G, p. 30). The authors further recommend that courts restrict expert testimony to “the limits of knowledge in a field and require examiners to testify within the bounds of those limits.” (Attachment G, p. 30). This is precisely the request that Mr. XXXX makes in this Motion. Federal courts are also calling for more robust oversight of forensic testimony. For instance, the Federal District Court in Maryland limited the scope of testimony by a pattern recognition examiner, excluding the examiner’s claims of absolute source attribution. In doing so, the Court stated that “the concerns expressed by the [NAS Committee] ought to be heeded by courts in the future regarding the limits of toolmark identification evidence, and courts should guard against complacency in admitting it just because, to date, no federal court has failed to do so.”VIII. TESTIMONY REGARDING ABSOLUTE SOURCE ATTRIBUTION AND UNIQUENESS SHOULD BE EXCLUDED PURSUANT TO RULE 403Claims of absolute source attribution and uniqueness will unfairly prejudice Mr. XXXX. Rule 403 requires this Court to exclude evidence where the probative value is substantially outweighed by the danger of unfair prejudice which results from testimony that confuses or misleads the trier of fact. As one law commentator has explained, Rule 403 is the proper avenue for exclusion of flawed forensic evidence. Courts use Rule 403 when assessing the admissibility of forensic testimony. By erroneously claiming that the latent print in question is unique and that Mr. XXXX is the source of the print, the prosecution’s fingerprint examiner will overstate the probative value of the fingerprint evidence in this case. This overstatement will mislead the trier of fact regarding the true probative value of the fingerprint evidence.IX. CONCLUSIONWherefore, Mr. XXXX requests that this Court issue the following orders: Exclude any testimony that the latent print in this case was made by the person whose fingerprints appear on the major case standard marked XXXX or any similar absolute source attribution testimony, andExclude any testimony that all fingerprints are unique.Respectfully Submitted,Brendan MaxAttorney for XXXX ................
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