Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

The Star Telegram had an article addressing the debate over the use of forensic testimony in criminal cases. They had the audacity to point out the conclusion of the National Academy of Sciences report that ballistics is not science - it's an opinion. Of course, that drew responses from crime labs, and those who regularly testify on such matters. The point of the article was not to answer the question of whether it's science or not, but point out the issues are currently being debated. In Texas, these type of issues were supposed to be addressed by the Texas forensic Science Commission.

Lawyers are known (despised) for arguing over words - yet we don't challenge the use of the term "science". So what is the definition? Here's one:

The word science comes from the Latin "scientia," meaning knowledge.

How do we define science? According to Webster's New Collegiate Dictionary, the definition of science is "knowledge attained through study or practice," or "knowledge covering general truths of the operation of general laws, esp. as obtained and tested through scientific method [and] concerned with the physical world."

 As far as I'm concerned, a crticical part of science is utilization of the scientific method. What does that mean? While its been a long time since I was in school, it basically means formulating a hypothesis, and then testing to see if its true. Rigorous testing means attempting to disprove the hypothesis. If you can't disprove it, then it's probably scientific.

So how does this apply to fields such as ballistics, fingerprints and blood spatter? I don't think it does. The underlying assumptions for those disciplines  has never been established: i.e. there are no studies establishing that no two fingerprints are the same, or guns put the same marks on bullets to the exclusion of all other guns. Ultimately, all those fields are based on one thing - observation.

The problem with observation is that no matter what procedures you follow, the ultimate decision is subjective.That is the problem with those fields; if something is true, everyone that looks at it should reach the same conclusions. If you have two equally qualified experts reaching different conclusions, that's not scientific.

Another problem is determing who is an expert. Is it someone who looks at a lot of fingerprints or ballistics. Does that mean they are able to accurately look at something at make comparisons. Why don't we use artists - who have a discerning eye for detail? Also, if it's nothing more than making comparisons, why do you need an expert?

We need to start addressing this type of testimony for what it is - opinion. What's the answer? I don't know. Perhaps its the use of court experts, or perhaps its in limiting the use of such testimony, or providing limiting instructions. Something needs to be done, because there is no doubt that as long as you have competing opinions one of them is likely to be wrong - and it is justly likely to be the state's expert as the defense expert.

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The Judiciary committee held a hearing today on forensics in the criminal justice system. The focus was mainly on what to with the recommendations made by the National Academy of Sciences in their recent report.

One of the witnesses was the city of Houston's chief of police. In answering a question he suggested moving toward an increased use of DNA evidence. Specifically, he noted how much more reliable DNA evidence would be than fingerprints in prosecuting property crimes. He has a point - the question is whether state's will ever devote the resources necessary to processing all crimes for DNA evidence. As it stands now, "touch" DNA is almost never processed or utilized; the use of DNA is limited to serious crimes, which generally means rapes and murders. There's a backlog now - just imagine what it would be if you started routinely collecting DNA evidence.

I've written before about the increasing acceptance of the fact that fingerprints are not as reliable as people have been led to believe. There is no doubt that fingerprint identification is extremely reliable when you are comparing complete prints. The problem is with the type of prints usually left at crime scenes. If DNA was used more often we might find out just how unreliable (or reliable) they really are.

I'm sure its a long way off, but I think the police chief may be on to something; some day

there may no longer be a need to rely on fingerpints.

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How many times have you heard the statement that no two fingerprints are the same. Experts testify to that in courtrooms throughout the country on probably a daily basis. The validity of that assertion has been questioned in the last several years; as with other areas, it is a statement made without any scientific support.

No matter what your opinion of the validity of fingerprint analysis is, like anything else reliability is based on the person doing the examination. A report today issued by the Los Angeles police department details two cases involving faulty fingerprint analysis. In one case a person was charged with breaking into a store. In another case, a person was extradited from Alabama to face burglary charges after his prints were matched to those found at the scene. In both cases the analysis was reviewed and verified by another examiner.

According to the LAPD report, the fingerprint section was poorly run, and individuals were reviewing work and merely rubbers tamping it.Fortunately for the two individuals, the mistakes were caught. They must now try to determine whether other mistakes were made - common sense tells you there are probably other such errors.

This is one more incident which shows science is not infallible. Fingerprint examination is an entirely subjective discipline. As such, it hinges on the competence of the examiner. You would like to think all examiners are competent and take their jobs seriously, but we all knoow that is not the case in any profession.

The lesson from this story is that fingerprints, like anything else, should not be blindly accepted, even when they have been reviewed and verified by a nether examiner. If there is any doubt, an independent expert should be consulted. If we are going to send someone to prison based on the opinion of an expert, then we need to make sure it’s accurate

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A Florida youth minister and father of four, Tallie Gainer,  ended up as the defendant in a felony bad check case. He was arrested in front of his family, exhausted his savings, and lost out on a business opportunity. On the surface, the story doesn't sound that remarkable. However, there is more to it, and the rest of the story points out several problems with the criminal justice system.

The ordeal started when Gainer left his wallet at a restaurant. Someone using his ID subsequently went into a bank, and tried to cash a check. The transaction didn't go through, but the attempt was the basis of the criminal charge. Gainer was subsequently arrested after he was identified through photographs, and the teller identified him. What followed was unfortunately not uncommon for a criminal case. Gainer's lawyer tried to explain his wallet was taken, but of course, who is going to listen to a criminal? Fortunately for Gainer, the teller took a fingerprint because she suspected something was not right. Unfortunately for Gainer, the fingerprint did not get examined for 8 months. When it came back as not Gainer's, the charges were dismissed. That was not before his life was turned upside down, and he was financially bankrupted.

So what went wrong. Clearly, there was something less than a thorough investigation.  As with many cases, the police got an eyewitness ID, and closed the case. Despite all the research pointing out the fallibility of such identifications, police still accept them without question. If they had tried to verify the ID, Gainer would have been spared the embarrassment and costs of being charged in a criminal case.

Gainer is suing the police department, but that probably is not going to be successful. Police have immunity from such suits, unless they act intentionally. They can make serious mistakes - like here - and there is nothing anyone can do about. Hopefully, he at least got an apology......

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