Soccer Dad

Smudging the issue

About two weeks ago, a Baltimore County judge, Susan M. Souder, barred prosecutors from using fingerprints as evidence in a murder trial.

Likening the court ruling to barring testimony about X-rays because doctors sometimes misread them, Baltimore County prosecutors asked a Circuit Court judge yesterday to reconsider her precedent-shattering decision that fingerprint evidence is too unreliable to be offered in a death penalty trial.

Prosecutors said that the judge erred in tossing out the evidence and in her reliance on parts of the federal government's report on the misidentification of an Oregon lawyer through fingerprints that the FBI said linked him to the 2004 Madrid train bombings.

Noting that federal investigators attributed the misidentification in that case to mistakes made in the fingerprint examination process, prosecutors wrote, "Countless doctors have misread X-rays, yet these errors would never be seen as a reason to prevent doctors from testifying about broken bones in court."

Unfortunately, the Baltimore Sun, instead of questioning the judge's decision, is apparently doing its best to support it. The other day it reported on others who supported the judge's decision without presenting the opposing side.

Law professor David Faigman was teaching at a national school for judges the week that a ruling to limit testimony about fingerprint evidence was issued in a murder case in Philadelphia.

The instructor asked the dozen students in his class whether they agreed with the judge's decision and whether they would rule similarly in their own courtrooms. Everyone thought the federal judge "got it right on the science," Faigman recalled of the 2002 case.

"And," he said, "all 12 said they would not go back and exclude fingerprint evidence from a case in their courts."

One of those opposing the use of fingerprint evidence said: "For all this time, the argument was made that because all fingerprints are unique, fingerprint examiners are accurate at detecting the source of a fingerprint," said Simon A. Cole, a professor at the University of California, Irvine and the author of Suspect Identities: A History of Fingerprinting and Criminal Identification.

"That actually doesn't follow at all," he said. "Just because all faces are unique doesn't mean that eyewitnesses are all accurate. But somehow, it's a seductive fallacy that people bought into, including ... defense attorneys."

Except that eyewitness observations of a person's face are made in often dynamic, confusing conditions. Fingerprints by contrast, are analyzed in a controlled environment. Sure people can make mistakes, but that doesn't mean that the evidence ought to be automatically excluded.

(The title of the article portrays the controversy as "science vs. tradition," with science apparently meaning that science supports rejecting fingerprints as evidence. But using fingerprints is based on science too.)

Baltimore County's prosecutor gave a better analogy

But fingerprint evidence also cleared Mayfield, Shellenberger wrote in his filing Monday.

“Countless doctors misread X-rays, yet these errors would never be seen as a reason to prevent doctors from testifying about broken bones in court,” he wrote. “The isolated errors of the Mayfield case should likewise not be the reason for the exclusion of fingerprint evidence. In fact, it was another fingerprint examiner using the exact methods used in this case who exonerated Mayfield and identified the true bomber.”

I wasn't a fan of Shellenberger's in the election (not that I could have voted), but he's right here.

Judge Souder is overreaching and according to the reports prosecutors cannot appeal the decision, but can only ask her to reconsider it. Hopefully Judge Souder will re-think her decision and its implications. If not, we could see a lot more murderers going free.

UPDATE: Some edits have been made for clarity.

fingerprints.