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July 2007
Volume 8, Issue 6
NIFS Newsletter
National Institute of Forensic Science
WELCOME VICTORIAN LAW
It is now over half way through 2007, FOUNDATION INTERN –
where has the year gone? I think I AARON MENTHA
must have blinked at some stage.
In June we welcomed Aaron Mentha to
It is timely therefore to remind you that the NIFS team. Aaron has completed a
submissions to the NIFS Best Paper Bachelor of Biomedical Science (Hons)
Awards are due by Friday 28 from Monash University and in his
September. Late submissions will not Honours year specialised in
be accepted. Applications for the two neuropharmacology. He is currently
Michael Duffy Travel Fellowships also completing his Bachelor of Laws at
close on 28 September. The criteria Melbourne University.
and application forms can be found at
www.nifs.com.au/NIFS/Awards.asp Aaron’s project at NIFS involves a
review of Commonwealth, State and
SAG season is also almost upon us. If Territory Legislation with respect to
you are a SAG representative and you mandatory DNA sampling of all police
haven’t registered, please send us your employees and the legislative
form ASAP. And don’t forget the implications for imposing mandatory
‘Management for Forensic Practitioners’ DNA sampling on these employees and
Workshop to be held immediately the storage of their DNA profiles on a
following the SAG meetings, it is limited purpose database: (noting that
looking really really good. different implications would exist for
sworn and unsworn employees).
Further into the future, but still worth Legislation could be introduced for new
starting to plan for is the 2008 employees and then extended to
International Symposium on the current serving staff.
Forensic Sciences which will be held in
Melbourne between 6-9 October. Unfortunately, Aaron finishes with us on
Check out their website 14 August. We wish him well in his
http://www.anzfss2008.org.au/ future studies and career and hope that
his time with NIFS has given him a
In this edition we welcome and farewell glimpse into the real world of ‘CSI’.
Aaron Mentha, reproduce an article
from NATA News (with permission) and Aaron outlines his project below.
feature a paper presented by Dr Tony
Raymond to the Annual Conference of DNA database. The term immediately
the Australian Association of Crown conjures up a myriad of thoughts – is
Prosecutors. keeping people’s genetic blueprints on
file ethical? How could it be used? Who
Read on….. could use it? Could it be misused?
These were just some of the concerns I
attempted to address during my
internship at the NIFS, where I
endeavoured to conduct a review of
The NIFS newsletter is now available on the web at: www.nifs.com.au/Publications/newsletter.asp
Page 2 of 15 NIFS Newsletter
how current Australian legislation and
case law would govern the mandatory
DNA sampling of those involved in the
DNA analysis process, from crime
scene first responders through to
laboratory personnel for the purposes
of creating a DNA elimination database
to assist in crime investigations.
My project also considered the privacy
implications of collecting these
individuals’ DNA – once a sample is Aaron Mentha in holiday mode – prior
obtained, how can it be used? Should to his time at NIFS
the DNA sample be destroyed once a
profile is obtained? Can that profile be
used for nefarious purposes such as MEET NATA’S MEMBER
paternity testing or screening for REPRESENTATIVES
genetic predispositions and insurance-
related matters? Stephen Dolliver was featured in the last
edition of NATA News and we have
The present situation with respect to reprinted that article (with permission)
DNA elimination databases in several below. We also sent our intrepid reporter
other jurisdictions – namely the UK, to the southern most capital of Australia
USA and New Zealand was also (via e-mail) to ask him some additional
considered in order to help identify the questions.
potential problems, inconsistencies and
solutions for Australian jurisdictions in Meet Tasmanian member
implementing further legislation and
processes to govern the use of DNA for representative - Stephen Dolliver
exclusionary purposes.
Stephen Dolliver is the Director of
Starting my project at NIFS was Forensic Science Service Tasmania,
daunting to say the least – being asked Supervising Analyst under the Road
to provide a review of legislation on a Safety (Alcohol and Drugs) Act and
topic when you literally have no idea Government Analyst and Chemist. He
what’s out there was enough to hasten has worked for the same organisation
performance anxiety. But I needn’t have for 41 years.
panicked in the slightest – the entire NATA News interviewed Stephen
NIFS staff have been only too happy to Dolliver recently asking him the
help in every way possible since day following questions:
one, whether by reading through my
work, suggesting other directions for my
project, organising laboratory tours or Why did you become a member of
giving me ‘first dibs’ whenever there’s the NATA Council?
leftover food from the numerous I was approached to nominate as a
catered conferences they’ve hosted Tasmanian NATA Members’
since I’ve begun. I’d like to thank Anna representative and as our laboratory
Davey and Tony Raymond in particular, had extensive accreditation in the fields
along with everyone working at NIFS of forensic science and chemical testing
for making my internship such a I thought it appropriate that I offer my
rewarding experience and for making services to assist members, NATA and
me ‘feel part of the team.’ And for our own organisation.
forcing me to stay in the gym to work off
all the leftover cake I’ve eaten.
Page 3 of 15 NIFS Newsletter
What would you like to see happen
in the near and longer term future for
NATA?
I would like to see NATA market its
services more aggressively by
providing direct evidence to
organisations. The advantage of this is
for its business practice to set up a
quality business system with
documentation, audits and proficiency
Stephen Dolliver, Director, Forensic testing. This would ensure the quality
Science Service Tasmania of its products, and that NATA can
provide the third party recognition, and
motivation, to ensure continuity and to
How do you think you make a give a competitive advantage.
difference?
Participating in the governance of NIFS’ chats with Stephen Dolliver
NATA through the NATA Council has
been an important process which has NIFS: What do you see as the
given me a greater commitment to and pressing issues currently in
understanding of the value of Forensic Science?
accreditation. Having considerable SD: My primary concern for Australian
experience with an accredited Forensic Science (apart from too many
organisation, and with the further CSI-type programs on TV), is for NIFS
knowledge and networking gained from to be funded adequately to maintain a
my experience on the NATA Council, I significant role in organising and
have the background to assist both sponsoring forensic science workshops
Tasmanian Members and NATA. and SMANZFL SAG’s into the future.
For over fifteen years NIFS has
What do you see your role as? significantly enhanced the standard of
forensic science in Australia, through
I have seen my role as an opportunity the opportunities it has given Australian
for Tasmanian members to have a forensic science practitioners to meet
direct voice for their concerns to NATA and establish personal and specialist
Council, however more often problems networks. This has been an important
of individual members have been able factor in establishing Forensic Science
to be dealt with expeditiously through Service Tasmania as the dynamic
my contacts at NATA. organisation it is today and I hope NIFS
is able to maintain this role into the
What are the main issues facing future.
members in your view?
NATA members have an enhanced NIFS: What role does quality
opportunity to have an effective management play in Forensic
Business Management Quality System Science?
for their organisation underpinned by SD: A robust quality management
NATA accreditation to ensure continued system is essential in a forensic
quality outputs and outcomes. A major science organisation because of the
issue for members in the commercial temporal and detailed scrutiny to which
sector is to maximise their competitive any aspect of our work may be subject.
advantage by making clients aware that It underpins the way we do our
third party recognition provides added business in all aspects of our business.
value. It is readily auditable and gives a
significant degree of confidence in the
accuracy of our outputs.
Page 4 of 15 NIFS Newsletter
NIFS: Where do you see Forensic NSW Police in the next edition of the
Science in ten years time? NIFS Newsletter.
SD: I hope that technological advances
and knowledge move so fast that I will Combined SAG Meetings
be amazed at the advances in forensic
science in ten years time. On the way, Date 9 – 11 September 2007
however, I see significant Location Melbourne
improvements in the use of databases. Registration $200
As the DNA and fingerprint databases Registration forms are available at
http://www.nifs.com.au/SMANZFL/SMANZ
increase in size, the continuing decline
FL.html?index.asp&1
in the crime rate should enable more
resources to be put into crime scene EE-SAG Accreditation Workshop
examination. Better forensic crime
scene knowledge, skills and Date 11 September 2007
technology, together with more detailed Location Melbourne
crime scene examination, will provide Registration Nil
more evidential material to assist Objective This workshop is designed
investigators in eliminating suspects for managers and senior
and focussing on their investigative staff within the electronic
efforts. evidence field to
familiarise themselves with
the accreditation process,
Thank you Stephen.
learn from agencies who
have undertaken
WORKSHOP UPDATE accreditation and discuss
implications on the
Management For Forensic electronic evidence
Practitioners discipline. NATA and the
Electronic Evidence
Technical advisory group
This workshop will be conducted could also advise on the
between the SAG and SMANZFL nuances that this
meetings in September. It has been discipline has in relation to
placed there as it will facilitate the accreditation.
attendance of many of the SAG
members. The workshop is designed Forensic Document Examination -
for all practitioners in the forensic Advanced Analytical Techniques and
sciences at middle to upper Security Printing Workshop
management level and those aspiring
to senior level management positions in Date 3-5 October 2007
Location Sydney
the future. The program looks very
Objective This workshop will cover the
exciting and has been designed to
theory and practical application
allow for lots of discussion. of instrumental examinations
such as
The registration cost for this two day FTIR
workshop is $200 or $100 if you are Raman
attending the SAG meeting. This Microspectrophotometry
workshop is only open to HPLC
practitioners / managers from Scanning Electron
SMANZFL facilities. Microscope,
ICPMS – Ink, toner and
Critical Issues Facing GSR Evidence in paper Analyses
an Australian Context Printing/security printing –
Industrial/Home Office and
Digital Imaging processes will
This workshop was held during the also be covered.
week of 9 – 12 July 2007 at NIFS and
all the feedback to date has been very
positive. A full workshop report will be
presented by Elizabeth Chan from
Page 5 of 15 NIFS Newsletter
Provision of Evidence workshop for preparation and analysis of
Computer Forensic Personnel (theory & samples by GCMS.
practical) Following the training
individuals will undertake a
Dates 5 & 6 October proficiency test.
Location Canberra
Forensic Computing Advanced
Wildlife Forensics Critical Issues Practitioners Workshop
Workshop
Date Postponed until 2008
Date 9 – 10 October 2007 Location Melbourne
Location Melbourne Objective This will be a focused
Objective There are a number of forensic technical workshop
‘niche’ organisations that for practitioners
provide genetic testing of (intermediate to advanced
animals, birds, reptiles and level) to identify
fish. The rationale ranges jurisdictional capabilities
from illegal substitution for and exchange of work
export (meat) to the illegal practices and to identify
export of parrots and lizards new and emerging work
to fraudulent preparations in practices and capabilities.
restaurants to theft of rare
birds or horses.
Occasionally, animals
Literature Update
become pivotal ‘witnesses’
to major crime. Most of the Biology / DNA
research and subsequent Exclusionary DNA of forensic
court action takes place workers and Australian forensic
outside of the SMANZFL procedures legislation/by Scudder,
environment. Nathan; Hamer, David
This workshop will attempt Current Issues in Criminal Justice,
to identify and engage with
v. 18 no. 1, p. 125-146 (July 2006.)
those involved in ‘Wildlife
Forensics’ and determine
the key issues facing them Miniaturized PCR chips for nucleic
including accreditation acid amplification and analysis:
under the NATA Forensic latest advances and future
Operations Module, trends/Chunsun Zhang and Da Xing
collaborative trials, expert Nucleic Acids Research, published
evidence training, method 18 June 2007
validation, database sharing
and validation. Click here to access:
http://nar.oxfordjournals.org/cgi/cont
Provision of Expert Evidence Workshop
ent/abstract/gkm389v1?ct=ct
for PHLN (theory & practical)
Dates 9 & 10 November Botany
Location Melbourne
Multivariate classification based on
chemical and stable isotopic profiles
Chemical Warfare Agent Laboratory in sourcing the origin of marijuana
Network workshop samples seized in Brazil
Journal of the Brazilian Chemical
Date November or December Society, v. 18(1) 2007; p. 205-214
Location EMA, Mt Macedon & DSTO, Click here to access:
Fisherman’s Bend http://jbcs.sbq.org.br/jbcs/2007/vol1
Objective This workshop will give 8_n1/23-06131AR.pdf
participants an introduction
to the properties of Chemical trace evidence
chemical warfare agents
The determination of firing distance
and the preparation and
analysis of samples.
applying a microscopic quantitative
Nominated individuals will method and confocal laser scanning
need to be familiar with the microscopy for detection of gunshot
Page 6 of 15 NIFS Newsletter
residue particles/Neri M, Turillazzi In the 70s there was very little quality
E, Riezzo I, Fineschi V oversight of work by peers, little
International Journal of Legal consideration of OH&S issues that are
Medicine, v. 121(4) July 2007 [Held part of today’s culture and one typically
in Library] learnt one’s (forensic science) trade at
the side of a ‘guru’ mentor. It was a
Drugs/Pharmacology period of trust when the laboratory
Concentrations of scheduled forensic science ‘boffins’ were held in
prescription drugs in blood of some esteem by the police, the public
impaired drivers: considerations for and the courts.
interpreting the results/Jones AW,
Holmgren A, Kugelberg FC. It was also the era when a police officer
Ther Drug Monit. v. 29(2) 2007; p. remarked to a colleague of mine that
248-60. forensic science simply ‘helped confirm
what we (the detectives) knew already!’
Thank you once again to Ms Tracey Scientific evidence simply added
Archer, Librarian from the Victoria substance to a brief that traditionally
Police Forensic Services Department. relied upon good investigation, good
interview techniques, surveillance and
eyewitness reports. There was only
one notable exception that did actually
assist proactively – namely fingerprints.
There was however a growing
understanding at every level of the
need to contextualise potential
evidence. For instance, chemists were
increasingly able to routinely detect
nanograms and picagrams of material –
but what did it mean? It is that
imperative to contextualise the
evidence that sets forensic science
apart from science. What does it mean
if two pieces of evidence (for instance
the reference material and the crime
Conference of the scene material) match or if a number of
Australian Association of trace elements were detected in an
Crown Prosecutors – evidence sample at a concentration of
10-9g/l? Two pieces of window glass
Sydney, July 2007 may well exhibit the same properties
(refractive index, density etc) and the
‘Error Rates in the Identification same trace elements (silicon, boron
Sciences - Fingerprints, Tool etc) but what does it mean if all window
Marks, Firearms, Handwriting and glass in that jurisdiction were made by
Hair Comparison’. the same flotation method by the same
manufacturer?
Dr Tony Raymond
Director
National Institute of Forensic
Science
‘Believe me – I’m an Expert’, if not a
common statement from the witness
box twenty odd years ago – was
certainly a strongly held sentiment at
that time.
Page 7 of 15 NIFS Newsletter
In the context of a latent fingerprint, it the ongoing quest for so-called ‘best
may be that the actual question the practice’.
court wants answered is: ‘Was the print
deposited on the window suggestive of The first half of the 90’s also saw DNA
that of someone idly looking in or profiling really come into its own. DNA
someone trying to further open the profiling, however, has not been without
window and climb in?’ its detractors. The compelling
evidence that DNA profiling provides
The watershed for many forensic really focussed practitioners and the
disciplines in Australia was the Royal Courts on evidence interpretation
Commission into the Chamberlain and probabilistic evidence. The
convictions in 1986/87. What I have consequence has meant that the
called the ‘Chamberlain effect’ was probabilities of a DNA match or link
replicated in many if not all Western are better researched than any other
jurisdictions as a number of high profile forensic evidence type.
cases exposed poor or junk science
and sometimes biased science. The At the same time, computer memory,
second half of the 1980s therefore digitisation and therefore database
became a time for standardisation and capacity and capability began to have
measuring practitioner proficiency. an immense impact on forensic
science. We suddenly saw a plethora of
In fact, Commissions of Inquiry like fingerprint, firearm, shoe and biometric
those into the Chamberlain convictions databases. This has meant that
helped drive a number of improvements forensic science and technology is
in, for instance, an understanding of the being relied upon to the extent that the
investigative process; namely, defined contextual interpretation of the
police standard operating procedures evidence is being lost. The difficulty for
for major scenes, forensic capability the community is how to triage the vast
awareness and linkage, the importance amount of information and to effectively
of adequate expert briefings, forensic sift the wheat from the chaff. The
science and pathology standards, an difficulty for the forensic community is
enhanced legal understanding of quality to ensure that they still have sufficient
forensic results and opinions, education influence to ensure that future research
and training in respect of forensic is designed such that the operational
results and significantly improved forensic contextual questions are able
national coordination and to be answered and as a consequence,
communication. robust and ethical answers are able to
be given in any probing cross
By the 90s, the notion of standards and examination.
accreditation was in full swing and there
had been a major philosophical change The situation now is that science has
from one of ‘accreditation represents a extremely robust systems around the
lot of work’ to one of ‘there is no option’, analysis of DNA and a sound
at least for the laboratories. (The focus understanding of the genetic limitations
on accreditation in the field – that is, at associated with small remote
the crime scene – did not come until the indigenous populations leading to
second half of that decade). The reliable results and defensible
commitment at forensic laboratory probabilities. There are very clear
director level to accreditation was very parameters and boundaries that are
significant and accelerated the sharing documented and transparent.
of information and expertise across
jurisdictions, sometimes informally, but 1993 saw another layer of scrutiny or
often through the auspices of NIFS, the safety introduced in the USA,
Senior Managers of Australia and New depending on how you look at it, with
Zealand Forensic Laboratories the landmark Daubert v Merrell Dow
(SMANZFL), or the Specialist Advisory Pharmaceuticals case1 which
Groups (SAG’s attached to SMANZFL).
No one wanted to re-invent the wheel in 1
509 U.S. 579 [1993].
Page 8 of 15 NIFS Newsletter
superceded the Kelly-Frye requirement fraudulent. Bromgard was released as
of ‘General Acceptance’2 and a direct result of the work of the
demanded: Innocent Project on the 1st October,
2002.
Testing and validation;
Peer review; Hairs
Rate of error; Hair comparisons have lost favour with
General acceptance (i.e. Kelly-Frye: the advent of nuclear and mitochondrial
Scientific principle moved from DNA profiling of hair root and hair shaft
research to demonstrable). respectively. Consequently, forensic
hair examiners are now few and far
In essence, it made the presiding judge between. The other contributing factor
the ‘gatekeeper’ of good science. is the fact that there have been a few
In the matter of Kuhmo Tire Co v cases like that of Bromgard where
Carmichael in 1999,3 the US Supreme testimonies have been based not on
Court clarified that Daubert would apply science but only on baseless
to all expert testimony, not just conjecture. The additional complication
evidence that relies on science. is that hair examiners typically like a
cross section of 30 – 100 hairs as their
In the 14 years since, the standards for reference material but invariably have
admissibility at trial of expert testimony to work with 1-6 crime scene hairs. It is
in general and scientific evidence in common ground that hair examiners
particular have become more are able to competently exclude hair as
demanding. Judges are more likely to being from the same source as the
consider the admissibility of expert reference material and research cross
evidence and inquire more deeply into matching microscopic hair examination
the reasoning and methodology that with mtDNA analysis supports this view.
supports the experts’ opinions and to However, the Bromgard outcome based
limit or exclude evidence accordingly(i). on hair matching evidence has
The Innocence Project that started in unfortunately been replicated in other
the USA began to make itself felt from jurisdictions as evidenced by the
1993 and exposed a number of areas Commission of Inquiry into the wrongful
of forensic science where injustices had conviction of Guy Paul Morin (Ontario
been done through junk comparative 1996) and the Commission of Inquiry
science. The case of Jimmy Ray into certain aspects of the trial and
Bromgard4 is a case in point as it conviction of James Driskell,
demonstrably exposed the perils of junk September 2006, Winnipeg, Manitoba.
science in the courtroom. 18 year-old
Bromgard was convicted in 1987 of the More recently in August 2005, the work
brutal rape of an eight year-old girl in of Michael J Saks and Jonathan J
Billings, Montana and sentenced to 40 Koehler(ii) using the USA Innocence
years. The testimony of the state's Project data has focused the spotlight
forensic scientist played a huge role in on the identification sciences and their
Bromgard's wrongful conviction, potential for error. (Interestingly, DNA
testifying that the head and pubic hairs typing is seen as the model for other
found on the victim's bed sheets disciplines!) They stated that
matched Bromgard and would have ‘Converging legal and scientific forces
matched less than one in ten thousand are pushing the traditional forensic
(1/10,000) people in a given population. identification sciences toward
There is absolutely no statistical fundamental change. The assumption
underpinning for hair comparison and of discernible uniqueness that resides
the use of statistics borders on the at the core of these fields is weakened
by evidence of errors in proficiency
2
See Frye v United States 293 F. 1013 testing and in actual cases. Changes in
(1923). the law pertaining to the admissibility of
3
526 U.S. 137. expert evidence in court, together with
4
See State of Montana v Jimmy the emergence of DNA typing as a
Bromgard (2002). model for a scientifically defensible
Page 9 of 15 NIFS Newsletter
approach to questions of shared attempting to forge their ‘normal’
identity, are driving the older forensic handwriting. In fact, handwriting
sciences toward a new scientific research by Australians Found and
paradigm’. Rogers and others(iii) indicates an error
rate of up to 6% and higher in certain
The graph below illustrates their categories.
research which is a modification of the
work of the Innocence Project, Cardozo
School of Law (New York, NY). It is
difficult to ascertain from the publication
and the Cardozo website what is meant
by testing ‘errors’ and what their real
impact was on a given trial outcome.
When investigating the US ‘General
Acceptance’ of handwriting
identification principles in 2005, Saks
and VanderHaar(iv) found that forensic
document examiners and handwriting
scientists ‘appear not to agree on the
acceptability of most of the
propositions’ e.g. can forgeries be
detected? There was broad agreement
Fig. 1. Factors associated with wrongful on process and on the proposition that
conviction in 86 DNA exoneration one signature is sufficient for
cases, based on case analysis data determining genuineness. In summary,
provided by the Innocence Project, forensic document examiners were
Cardozo School of Law (New York, more likely than handwriting scientists
NY), (and computed by the authors). to believe that sufficient knowledge
Percentages exceed 100% because existed on which to base conclusions
more than one factor was found in about most propositions.
many cases. Red bars indicate factors
related to forensic science. Not surprisingly perhaps, questioned
document examiners are increasingly
What has been the impact of this embracing a probabilistic terminology
spotlight on the identification or and likelihood ratios when they
comparative sciences – for instance, describe the strength of a match.
fingerprints, tool marks, firearms,
handwriting and hair comparisons? Firearms and Toolmarks
This discipline is increasingly coming
Handwriting under heavy scrutiny – again especially
Handwriting comparisons were already in the United States. Firstly, the
facing mounting challenges for November 2005 matter of USA v
legitimate reasons. Practitioners often Monteiro,5 which involved the
have to work with limited reference comparison of fired cartridge cases
material and inevitably, even less found at several crime scenes in the
questioned handwriting associated with District of Massachusetts with firearms
the crime or incident itself. There is owned by the defendants. The defence
sometimes uncertainty around whether argued:
handwriting exemplars were written
under duress or under the influence of
alcohol or drugs. It is not known
whether the questioned handwriting
was written by someone deliberately 5
417 F. 3d 208.
Page 10 of 15 NIFS Newsletter
1. That the firearms examiners were permits the exclusion of all other guns
not qualified in firearms as the source of the shell casings’.
identification; and
2. That the standard methodology of In a further matter in the same
firearms identification is unreliable timeframe in the District of
under Daubert v Merrell Dow Massachusetts,7 the judge determined
Pharmaceuticals. that ‘The theory and process of firearms
identification are generally accepted
and reliable, and the process has been
reliably applied in these cases.
Accordingly, the firearms identification
evidence, including opinions as to
matches, may be presented to the
juries for their consideration, but only if
that evidence includes a detailed
statement of the reasons for those
opinions together with appropriate
documentation’.
Particular firearm and toolmark
The trial court as the gatekeeper must identification testimony was also
ensure that the expert is qualified and excluded by the Texas Court of
that any testimony must be relevant Criminal Appeals in Sexton v State in
and rely on a foundation of scientific, 20028 and the Florida Supreme Court in
technical or specialized knowledge. Ramirez III in 2001.9
After a six day Daubert hearing, the
Court determined that the Examiner A paper written in 2005 by Adina
was qualified but had failed to follow the Schwartz(v) (an Associate Professor
established standards with regard to from John Jay College of Criminal
documentation and peer review. Justice) published in the Columbia
Science and Technology Law Review
Secondly, in December 2005 again in puts forward the hypothesis that
the District of Massachusetts, the similarities between tools and toolmarks
defence sought leave to exclude the should have a statistical empirical
forensic ballistics identification evidence underpinning. Obviously there are
in the racketeering matter of USA v many that do not support that view.
Green.6 The judge was very surprised They also strongly contend that
to find that the examiner had never firearms and toolmarks identification
been formally certified, had not followed does have strong scientific foundations.
strict protocols, admitted to the exercise Nonetheless, the Florida Supreme
of subjective judgment, had never Court supports the Schwartz view and
received proficiency tests from any commented following the Ramirez III
neutral foundation and gave error rates matter that all firearm and toolmark
without research foundation. identifications should be excluded until
Nonetheless the judge felt compelled to the development of firm statistical
allow the examiner to testify because empirical foundations for identifications
he had given evidence in numerous and a rigorous regime of blind
previous post-Daubert courts and proficiency testing.
‘because any other decision will be
rejected by appellate courts, in light of Fingerprints
precedents across the country…..’ The first matter of recent times that has
However, the judge would not allow the really shaken the fingerprint
examiner to conclude (in testimony) establishment has been the Shirley
that ‘…the match he found by dint of
the specific methodology he used, 7
Commonwealth of Massachusetts v
Jason Meeks and Michael Warner.
8
October 9, 2002, No. 471-00.
6 9
407 F. 3d 434. Ramirez v State 810 So. 2d 836.
Page 11 of 15 NIFS Newsletter
McKie case. Ms McKie was a detective how often examiners err), peer review
constable when Marion Ross was found and standards (i.e. did not use objective
murdered at her home in Kilmarnock, standards for determining whether two
Scotland in January 1997. David prints match)’.
Ashbury was charged, convicted for the
murder but had later had his conviction
quashed. During the investigation,
fingerprints were located on the door
frame of the victim’s home which the
Scottish Criminal Records Office
(SCRO) said belonged to McKie. She
denied that the print was hers during
the trial and was subsequently arrested
and charged. Numerous fingerprint In March, following a three day hearing,
experts said that the SCRO were wrong Pollak J changed his mind: ‘On further
and McKie launched a ₤100,000 action reflection, I disagree with myself’.
against SCRO alleging malicious While continuing to maintain that
prosecution which failed in 2002. In fingerprint examiners’ opinions are
May 2002, a letter signed by 130 subjective, he concluded that they were
prominent fingerprint practitioners from no more subjective than any other
13 countries was sent to the Scottish forensic science opinions accepted by
Justice Minister saying that their courts. Moreover, he said that
profession had been tainted, a gross fingerprint techniques allow for less
mistake had been made and that ‘…any subjectivity than many other fields of
qualified expert or even unqualified expertise but held that scientific tests
trainee’ would not have concluded that would aid the techniques reliability.
there was a match between the door Pollak accepted the FBI’s examiners in
frame print and Ms Mckie. In 2006 Ms this case who he said got very high
McKie was given a £750,000 pay out proficiency grades. He added that he
but SCRO still deny that they made a was not persuaded that the courts
mistake and have not admitted fault. should defer admission on fingerprint
Allegedly, a number of SCRO experts testimony until the academics had
supported the conclusions reached by made substantial headway on a
the first expert in this matter. Six verification and validation research
experts were offered severance agenda. He held firm to his belief that
packages at this time. fingerprint examination is not a science.
In January 2002, a US Federal Court The Madrid bombing was no different to
Judge of the Eastern District of the McKie case when, ironically, at
Pennsylvania and ex-Dean of Yale Law least three (perhaps more) senior FBI
School rocked forensic technicians with fingerprint experts identified a digital
a landmark decision in a drug-related print image lifted from a bag of
murder trial.10 Pollak J ruled that detonators allegedly linked to the
fingerprint experts may no longer tell multiple bombings in Madrid in March
juries that two prints are a match. 2004. It was the Spanish Police who
Pollak became the first influential judge detected that the FBI personnel had got
to issue a judicial notice that the so- it wrong when they attempted to
called ‘science of fingerprint evidence’ confirm the FBI’s earlier work. The
is insufficient to determine what person that was locked up was
constitutes a match. Pollak noted that Brandon Mayfield an American lawyer
whilst fingerprints are indeed ‘unique’ and Islam convert suspected to have
and ‘permanent’, they fail the Daubert links with terrorists. The print actually
test in that fingerprinting does not have originated from an Algerian.
‘testability, (i.e. had not been validated
through research), error rates (i.e. did If I may borrow from the paper given by
not incorporate a means of determining a colleague of mine Dr Hilton Kobus,
Director FSSA, at the 2006 ANZFSS
Symposium entitled ‘An Analytical
10
See United States v Llera-Plaza, 179
Science Approach to the Forensic
F. Supp. 2d 492.
Page 12 of 15 NIFS Newsletter
Sciences’(vi). He states that all the image, if any, matches the crime scene
comparative sciences may be latent is the decision of the examiner.
considered to be analytical in nature;
and yet we do not apply analytical It is common practice to then have the
detection methods as with DNA. match ‘verified’ by a second person.
Detection of a signal is the basis of an Consider how that may be done. A
analytical result. There are two senior well respected fingerprint
important parameters – sensitivity (i.e. examiner who knows the details of the
signal to background noise ratio) and case (e.g. a child was raped and
detection limit which may be defined murdered), is under pressure to ‘get a
probabilistically but is often defined result’ on a difficult partial latent print. A
empirically – e.g. the old12 point rule in candidate with a particularly violent past
fingerprints in most jurisdictions in appears to match the print. (Note: there
Australia. is a lot of kudos in the fingerprint
fraternity for ‘getting a bad crim’). He
We know we can improve the detection calls it a match. He takes it to one of his
limit with fingerprints, toolmarks, junior colleague ‘experts’, possibly a
ballistic striae or handwriting friend. Is that associate likely to say that
indentations using physical (light, his experienced senior officer has got it
polilight, ESDA) or chemical wrong?
modification. What we do is improve the
image relative to the background This is what is termed Context and
(signal to noise ratio). However, unlike Conformational Bias. The definition
DNA, we do not have any rules in the given at the February 2007 American
identification sciences that are applied Academy of Forensic Science (AAFS)
when in the ‘danger area’ of detection Symposium was that it was the means
limits. The point scale is an attempt but by which environmental elements
it is subjective. For instance, in an influence a scientist’s cognitive
extensive collaborative study back in processes and therefore impact on their
1995 by Evett and Williams, it was conclusions. Essentially, conformational
found that the number of points bias is information that supports
identified (by a range of fingerprint opinion. It could therefore mean that the
experts) on the same print varied scientist formulates an opinion and then
between 10 and 40. Furthermore, looks for information that supports it,
almost no one ever reported 15 points not that that disproves a hypothesis.
when the British standard was 16. That is exactly what happened in the
McKie case and with the Madrid
There seems little doubt that properly bombing. Not surprisingly, it has
trained personnel can compare and triggered quite a lot of belated research
correctly identify two clear inked or into this area. For example, in late
digitised 10 prints or even single 2005, Itiel Dror and David Charlton(vii)
fingerprints. The same may be said for from the University of Southhampton in
firearms examiners or footwear the UK presented examiners with
examiners when asked to compare two fingerprints taken from real criminal
projectiles fired into a water tank or an cases. Half of the prints had previously
inked shoe impression and a shoe. The been adjudged as individualisations
crime scene reality is very different. and the other half as exclusions. They
Latent fingerprints lifted at a scene are re-presented the same prints to the
invariably distorted, smudged and may same experts as had judged them
sit on curved and variable substrates. previously, but provided biasing
Comparable issues arise with damaged contextual information for both the
projectiles or shoe impressions on individualisations and the exclusions.
difficult surfaces. It is common these Each expert examined a total of eight
days to have the computer indicate a past decisions. Two-thirds made
list of suspects via an AFIS, IBIS or inconsistent decisions. They found that
SICAR computer matching algorithm. extraneous contextual information
The decision as to which candidate caused some experts to reach different
and inconsistent decisions to those
Page 13 of 15 NIFS Newsletter
made in the past on the same set of demand it? I suspect so – particularly
fingerprints. Furthermore, they found as in the USA at least, increasing
that the experts were vulnerable to numbers of lawyers and academics are
biasing information when they were petitioning the Courts to review the
presented within relatively routine reliability of the comparative
contexts, such as corroborative or identification sciences. To quote an
conflicting evidence of a confession to excerpt from the matter of
the crime. Commonwealth of Massachusetts v
Lanigan:11
This work has been supported by the
work of others including that of Glenn ‘For the following reasons, Amici
Langenburg(viii) in 2006/07. Langenburg respectfully urge the Court to reverse
divided 43 experts into three groups – the decision of the trial court finding that
one was given no contextual latent fingerprint individualisation using
information, one was fed conclusions ACE-V methodology as applied to
from an unnamed fingerprint expert and simultaneous impressions is sufficiently
the third was given Pat Wertheim’s, reliable to be admitted …’
conclusions; (Wertheim being a world-
renowned and highly respected It would be nice if a quantitative
fingerprint expert). This led to a large measure was possible for the
number of ‘inconclusive’ findings. comparative identification sciences as
with DNA profiles. Although the
subjective nature is unavoidable, an
analytical mind must be applied to the
comparisons. More comparative
features only have value if they are
clear of the background, i.e. above the
detection limit. Should we be
expressing the outcome probabilistically
and avoiding the ‘Believe me I am the
expert’ attitude – undoubtedly! I am of
the view that you will see probabilistic
evidence creeping into the comparative
sciences very soon – particularly where
they impact on major crimes.
The problem with fingerprints, firearm, The peer review process that we have
toolmark, shoemark, handwriting, or in Australia is good, only if it involves
hair comparison, etc is that it is not the same critical thinking. I believe that
possible to define an error rate and there is no possibility of 100%
therefore to calculate one. Increasingly objectivity but there is potential for very
though, probabilistic mathematical high levels of objectivity. All panel
models are being developed, members at a debate held at the AAFS
particularly by the Swiss at the Symposium agreed with that hypothesis
University of Lausanneix and the FSS in and also that bias was inevitable but
the UK. This research is aimed at the could be minimised - the bias was an
production of a mathematical tool for inevitability of mutual respect.
the objective assessment of fingerprint
evidence. Other comparative discipline It was strongly stated at this debate that
models will inevitably follow. one needed contextual evidence to be
effective but one should only be given
Increasing numbers of scholars and the contextual information necessary
scientists believe that latent fingerprint for you to do your job; that is, the
examiners’ practices should be placed information should be domain relevant
on as rigorous and as carefully only. To quote Prof De Forrest:
established a scientific basis as that of ‘Evidence occurs in context and should
forensic DNA analysis. Is it simply a
matter of time before the Courts 11
413 Mass. 154 (1992).
Page 14 of 15 NIFS Newsletter
be recognised and interpreted in the justice system and, I suspect, the
context’. way some prosecutions will be run.
Possible solutions given at the References
Symposium included:
(i) Epstein, R. (2002). Fingerprints meet
Increased awareness starting at the Daubert: the myth of fingerprint
universities; ‘science’ revealed. Southern
Blind verification processes; California Law Review. 75, 605-658.
The stripping of all irrelevant
information from the case (ii) Saks, M.J. & Koehler, J.J. (2005).
The coming paradigm shift in forensic
submissions (by recruitment of a
identification science. Science. 5,
relevant person at the evidence 892-895.
receipt units);
(iii) Dyer, A.G., Found, B. & Rogers, D.
Quarantining additional information* (Submitted). An insight into forensic
about the suspect’s history or other document examiner expertise for
elements of the case – e.g. ‘He has discriminating between forged and
a number of similar prior disguised signatures. Journal of
convictions’ or ‘His prints were Forensic Sciences.
found in the house’ etc.
Found, B. & Rogers, D. (2005). The
relative strength of forensic
It is fair to say that the lack of basic document examiners’ identification
validation studies in areas like the and elimination opinions on
fingerprint field is widely acknowledged individuals' natural writings.
- for instance, the DOJ (NIJ) put out a Proceedings of the 12th Biennial
solicitation for ‘Forensic Friction Ridge Conference of the International
(Fingerprint Examination) Validation Graphonomics Society, 157-161.
Studies’.
Found, B., Rogers, D., & Herkt, A.
The likely bottom line is that I think we (2001). The skill of a group of
will increasingly see probabilistic theory forensic document examiners in
applied to major cases that rely on expressing handwriting and signature
comparative identification evidence and authorship and production process
opinions. Journal of Forensic
that we will begin to see likelihood
Document Examination, 14, 15-30.
ratios being given, even with fingerprint
matches. The implications of ‘getting it (iv) Saks, M.J. & VanderHaar, H. (2005).
wrong’ reverberate around the forensic On the ‘general acceptance’ of
science world. ‘One offs’ like the jailing handwriting identification principles.
of Mark Dallagher in 199812 on the Journal of Forensic Science, 50 (1),
basis of an earprint left on the house 119-126.
window of a 94 year-old woman living in
Huddersfield, England are (v) Schwartz, A. (2005). A systematic
unacceptable. The court was told that challenge to the reliability and
admissibility of firearms and toolmark
the ear print was definitely that of
identification, The Columbia Science
Dallagher. Dallagher was subsequently and Technology Law Review, VI, 1-
cleared when DNA implicated another 42.
person. (vi) Kobus, H.J. (2006). An Analytical
Science Approach to the Forensic
The likely impact on research, training Sciences. Presentation at the 18
th
and recruitment of practitioners in the International ANZFSS Symposium,
comparative identification sciences field Fremantle.
is self-evident. This paradigm shift
will also have a significant effect on (vii) Dror, I.E. & Charlton, D. (2006). Why
experts make errors. Journal of
Forensic Identification, 56(4), 600-
616.
See R v Dallagher [2002] EWCA Crim
12
1903.
Page 15 of 15 NIFS Newsletter
(viii) Langenburg, G. (2007). Testing for
the potential effects of contextual
bias during the verification stage of
latent fingerprint comparisons.
Presentation at the International
Fingerprint Research Group
Symposium, Canberra.
(ix) Nicole, M.E., Champod, C. & Margot,
P. (2007). Evidence evaluation in
fingerprint comparison and
automated fingerprint identification
systems – Modelling within finger
variability. Forensic Science
International, 167(2-3), 189-195.
19th International
Symposium on the
Forensic Sciences
http://www.anzfss2008.org.au/
And finally …
If you would like to contribute a short
article to the Newsletter or submit a
Technical Note, please send it to Anna
Davey.
Contact details:
• PO Box 13075
Law Courts Post Office
VIC 8010
• Tel: (03) 9640-0707
Fax: (03) 9640-0709
www.nifs.com.au
• tony.raymond@nifs.com.au
• anna.davey@nifs.com.au
• paul.kirkbride@nifs.com.au
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• lorraine.hood@nifs.com.au
• keith.borschmann@nifs.com.au
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