Anecdotal forensics, phrenology, and other abject lessons from the history of science

Hastings Law Journal

Volumn 59, Issue 5, 2008, Pages 979-1000

  Faigman, David L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 49549125171     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (85)

1. Others have similarly drawn the connection between forensics and phrenology. Professor Jane Campbell Moriarty, for example, observed as follows: [P]hrenology shares an important trait with forensic individualization evidence: conclusions are not based upon independent testing but upon "scientific observations of countless samples." Both are experience-based conclusions that rest on the foundation that: (i) the science is valid because of extensive observations; (2) those skilled in the science can do it properly; and (3) the underlying theory is valid because of the care used by the practitioners. Jane Campbell Moriarty, "Misconvictions," Science, and the Ministers of Justice, 86 NEB. L. REV. 1, 17 (2007);
2. see also Troy Duster, Selective Arrests, an Ever-Expanding DNA Forensic Database, and the Specter of an Early-Twenty-First-Century Equivalent of Phrenology, in DNA AND THE CRIMINAL JUSTICE SYSTEM: THE TECHNOLOGY OF JUSTICE 315 (David Lazer ed., 2004);
3. Jennifer L. Mnookin, Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability, 87 VA. L. REV. 1723, 1810 (2001).
4. On the failures of phrenology, see ROBERT M. YOUNG, MIND, BRAIN AND ADAPTATION IN THE NINETEENTH CENTURY (1970).
5. On the failures of anecdotal forensics, see Michael J. Saks & David L. Faigman, Failed Forensics: How Forensic Science Lost Its Way and How It Might Yet Find It, 4 ANN. REV. L. & SOC. SCI. (forthcoming Aug. 2008).
6. See OXFORD COMPANION TO THE HISTORY OF MODERN SCIENCE 639-41 (J.L. Heilbron ed., 2003).
7. See YOUNG, supra note 2, at 23.
8. Id. at 10.
9. See DAVID L. FAIGMAN, LABORATORY OF JUSTICE: THE SUPREME COURT'S 200-YEAR STRUGGLE TO INTEGRATE SCIENCE AND THE LAW 1-5 (2004) (relating the story of George Washington's death).
10. YOUNG, supra note 2, at 10 (noting 1840s reference to phrenology as "that sinkhole of human folly and prating coxcombry").
11. See FRANZ JOSEPH GALL, THE ANATOMY AND PHYSIOLOGY OF THE NERVOUS SYSTEM IN GENERAL, AND OF THE BRAIN IN PARTICULAR (1796).
12. YOUNG, supra note 2, at 12.
13. OXFORD COMPANION TO THE HISTORY OF MODERN SCIENCE, supra note 3, at 639-40 ("[Although Gall] initiated studies on the correlation between structures and functions . . . his evidence was anecdotal.").
14. Id. at 640.
15. Id.
16. GEORGE COMBE, THE CONSTITUTION OF MAN IN RELATION TO THE NATURAL LAWS (Cassell & Co. 1893) (1828); see also OXFORD COMPANION TO THE HISTORY OF MODERN SCIENCE, supra note 3, at 639-40.
17. Id.
18. HEWETT C. WATSON, STATISTICS OF PHRENOLOGY: BEING A SKETCH OF THE PROGRESS AND PRESENT STATE OF THAT SCIENCE IN THE BRITISH ISLANDS. (1836); see also OXFORD COMPANION TO THE HISTORY OF MODERN SCIENCE, supra note 3, at 639-40.
19. See SIMON A. COLE. SUSPECT IDENTITIES: A HISTORY OF FINGERPRINTING AND CRIMINAL IDENTIFICATION 32 (2001).
20. Id.
21. Id. at 49.
22. Id. at 57 ("To criminal anthropologists, the distinction between using the criminal body as a link to a criminal record and simply reading criminality directly from the body was not entirely clear.").
23. Id. at 32-59.
24. See id. at 140-43 (describing the case of Will/William West and how fingerprint identification proved to be a superior system of identification).
25. See Saks & Faigman, supra note 2.
26. See Moriarty, supra note 1, at 17-18 ("The circular reasoning problem, however, is far more easy to spot in the case of phrenology than it is with other forms of forensic individualization, as evidenced by a 2005 Supreme Judicial Court of Massachusetts decision noting the ACE-V method for comparing fingerprints 'defies easy testing because it does not require a minimum number of similarities, but rather operates on a subjective sliding scale.' That is to say, 'I know a match when I see one.'" (internal citations omitted)).
27. David A. Stoney, Scientific Status, in 4 MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY § 32:33 (David L. Faigman et al. eds., 2007-2008 ed.) [hereinafter MODERN SCIENTIFIC EVIDENCE].
28. See, e.g., United States v. Mahone, 453 F.3d 68, 71-73 (1st Cir. 2006) (applying ACE-V to footwear impressions); United States v. Allen, 207 F. Supp. 2d 856, 862 (N.D. Ind. 2002) (same).
29. Stoney, supra note 24, at 350.
30. 365 F.3d 215 (3d Cir. 2004).
31. Id. at 221.
32. Stoney, supra note 24, at 362-64.
33. Id. at 353; see also 1 PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, SCIENTIFIC EVIDENCE 897 (4th ed. 2007) (discussing fingerprint identification methods).
34. Stoney, supra note 24, at 354.
35. See, e.g., United States v. Mahone, 453 F.3d 68, 72-73 (1st Cir. 2006) ("There is no evidence that ACE-V mandates blinded verification. Under cross-examination by Mahone's trial counsel, [the witness] acknowledged only 'a lot of debate' over whether a verifying examiner should be blinded.").
36. FAIGMAN, supra note 6, at 9.
37. See Saks & Faigman, supra note 2; 4-5 MODERN SCIENTIFIC EVIDENCE, supra note 24 (two treatise volumes devoted to the subject of forensic science).
38. See, e.g., Donald Kennedy, Forensic Science: Oxymoron?, 302 SCIENCE 1625,1625 (2003) ("It's not that fingerprint analysis is unreliable. The problem, rather, is that its reliability is unverified either by statistical models of fingerprint variation or by consistent data on error rates.");
39. David M. Siegel et al., The Reliability of Latent Print Individualization: Brief of Amici Curiae submitted on Behalf of Sientists and Scholars by the New England Innocence Project, Commonwealth v. Patterson, 42 CRIM. L. BULL. 21 (2006);
40. Sandy L. Zabell, Fingerprint Evidence, 13 J.L. & POL'Y 143, 170 (2005).
41. See OXFORD COMPANION TO THE HISTORY OF MODERN SCIENCE, supra note 3.
42. Elisabeth Bumiller, Bush Remarks Roil Debate over Teaching of Evolution, N.Y. TIMES, Aug. 3, 2005, at A14.
43. See generally Mary E. Cowan & Patricia L. Purdon, A Study of the "Paraffin Test," 12 J. FORENSIC SCIS. 19 (1967).
44. See John J. Lentini, Fires, Arsons, and Explosions, in 5 MODERN SCIENTIFIC EVIDENCE, supra note 24, § 38:21.
45. John Solomon, A Murder Conviction Torn Apart by a Bullet; In a 1995 Maryland Case, Key Testimony and the Science Behind It Have Been Discredited, WASH. POST, Nov. 19, 2007, at A1 (describing the downfall of the discredited science of bullet-lead comparisons).
46. See Saks & Faigman, supra note 2.
47. Kenneth G. Furton et al., What Educational Background Do Crime Laboratory Directors Require from Applicants?, 44 J. FORENSIC SCIS. 128, 130 (1999).
48. In short, signal detection theory is concerned with the quantification of the uncertainty surrounding the task of distinguishing signal and noise. See generally Victoria L. Phillips et al., The Application of Signal Detection Theory to Decision-Making in Forensic Science, 46 J. FORENSIC SCIS. 294 (2001);
49. John A. Swets, The Relative Operating Characteristic in Psychology, 182 SCIENCE 900 (1973).
50. Indeed, there is some evidence that indicates that the Justice Department has actively sought to thwart research efforts. See Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint "Science" Is Revealed, 75 S. CAL. L. REV. 605, 627-28 n.122 (2002) (claiming to have "internal documents of the NIJ" stating that the Institute delayed a research solicitation at the behest of the FBI until after a Daubert challenge had been heard in the Third Circuit);
51. Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. REV. 163, 207-08 (2007) (describing allegations that officials at the U.S. Justice Department interfered with research efforts on two separate occasions).
52. See infra note 54 and accompanying text.
53. See generally FREDERICK RUDOLPH, THE AMERICAN COLLEGE AND UNIVERSITY: A HISTORY (2d ed. 1990); JOHN R. THELIN, A HISTORY OF AMERICAN HIGHER EDUCATION (2004).
54. Cf. Giannelli, supra note 44, at 221-22.
55. Although there has yet to be an extensive study of the forensic bureaucracy, there is little reason to believe that it operates differently than other self-perpetuating institutions that have been the subject of research. See generally JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT (1989).
56. D. Michael Risinger et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 CAL. L. REV. I, 13-15 (2002).
57. Courts often point to this fact to support admission. See, e.g., United States v. Liera Plaza, 188 F. Supp. 2d 549, 566 (E.D. Pa. 2002) ("It has been open to defense counsel to present examples of erroneous identifications attributable to FBI examiners, and no such examples have been forthcoming."). In United States v. Howard, 117 F. Supp. 2d 848 (S.D. Ind. 2000), the court used this argument, but in a particularly obtuse way: "The government points out correctly that if anyone were to come across a case in which two different fingers had identical fingerprints, that news would flash around the legal world at the speed of light. It has not happened in 100 years." Id. at 854. The issue in these cases, of course, is not whether "two different fingers [might have] identical fingerprints," but whether a latent print might be mistakenly identified as matching a known print. This has occurred many times. See Simon A. Cole, More Than Zero: Accounting for Error in Latent Fingerprint Identification, 95 J. CRIM. L. & CRIMINOLOGY 985, 1027-28 (2005).
58. See Zabell, supra note 35 ("The argument that no latent print has ever been found to match the rolled print of a different person is . . . misleading because no systematic search for such pairs on the entire databank of millions of fingerprints has ever been performed.").
59. Stoney, supra note 24, at 356-57.
60. This hypothetical, of course, is based on the Brandon Mayfield case, in which an Oregon attorney was mistakenly identified as being involved in the 2004 Madrid terrorist bombing. See Cole, supra note 50, at 1016. Four FBI examiners confirmed the identification of his fingerprint. See U.S. DEP'T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., A REVIEW OF THE FBI's HANDLING OF THE BRANDON MAYFIELD CASE (2006), available at http://www.usdoj.gov/oig/special/s0601/PDF_list.htm.
61. Itiel E. Dror et al., Contextual Information Renders Experts Vulnerable to Making Erroneous Identifications, 156 FORENSIC SCI. INT'L 74, 77 (2006) ("Our study shows that it is possible to alter identification decisions on the same fingerprint, solely by presenting it in a different context.");
62. see also Itiel E. Dror & Robert Rosenthal, Meta-Analytically Quantifying the Reliability and Biasability of Forensic Experts, 53 J. FORENSIC SCIS. (forthcoming July 2008), available at http://users.ecs.soton.ac.uk/id/ JFS%20expert%20reliability%20and%20biasability.pdf; Itiel E. Dror & D. Charlton, Why Experts Make Errors, 56 J. FORENSIC IDENTIFICATION 600 (2006).
63. D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 ALB. L. REV. 99, 99 (2000).
64. See Jennifer McMenamin, Judge Bars Use of Fingerprints in Murder Trial, BALT. SUN, Oct. 23, 2007, at 1A;
65. Jennifer McMenamin, Science, Tradition at War in Forensics: Fingerprints Ruling Roils Mainstream, BALT. SUN, Oct. 29, 2007, at 1A.
66. 117 F. Supp. 2d 848 (S.D. Ind. 2000).
67. Id. at 849.
68. See Joseph L. Peterson et al., The Uses and Effects of Forensic Science in the Adjudication of Felony Cases, 32 J. FORENSIC SCIS. 1730, 1748 (1987) (reporting a survey indicating that "[a]bout one quarter of the citizens who had served on juries which were presented with scientific evidence believed that had such evidence been absent, they would have changed their verdicts-from guilty to not guilty").
69. 405 F. Supp. 2d 104 (D. Mass. 2005).
70. Id. at 114.
71. Although Judge Gertner admitted the toolmark expert, she limited the expert to describing similarities between the known and unknown marks and did not allow the expert to testify that the marks "matched." See id. at 124; infra notes 64-76 and accompanying text (discussing further the merits of Judge Gertner's solution).
72. Green, 405 F. Supp. 2d at 109.
73. See Stoney, supra note 24, at 356-57 (describing the practical difficulty of determining definitively that a particular person did not leave a particular latent print).
74. It would be worthwhile to conduct an extensive survey of forensic graduate programs in the United States. I would hypothesize that few programs offer sophisticated training in research methods and statistics-given how little of this sort of research is done-and that most programs are designed to train practicing professionals, not professional research scientists. The only arguable exception is George Washington University, which has various iterations of Masters programs, but does not offer the Ph.D. See George Washington University, Department of Forensic Sciences, Overview of Forensic Sciences Programs, http://www.gwu.edu/~forensic/program.htm (last visited Apr. 20, 2008).
75. See, e.g., United States v. Fujii, 152 F. Supp. 2d 939 (N.D. III. 2000) (excluding handwriting expertise entirely); United States v. Hines, 55 F. Supp. 2d 62, 70-71 (D. Mass. 1999) (not allowing handwriting expert to testify to identity).
76. See United States v. Havvard, 117 F. Supp. 2d 848, 852 (S.D. Ind. 2000).
77. FED. R. EVID. 702.
78. FED. R. EVID. 702 advisory committee's note (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)).
79. See Michael J. Saks & Jonathan J. Koehler, The Individualization Fallacy in Forensic Science, 61 VAND. L. REV. 199, 208-09 (2008).
80. Arch patterns have no delta (i.e., a knot formed by the ridge lines), loops have one delta, and whorls have been characterized by the presence of two deltas. See Oleg S. Avdeychik & Kenneth A. Lagerstrom, Dispensation of Dermatoglyphic Whorls, HUMANHAND.COM, Sept. 24, 1999, http://www.humanhand.com/dispensation.html.
81. See supra note 28 (discussing the three levels of detail involved in the analysis of fingerprint patterns).
82. See D. Michael Risinger, Handwriting Identification, in MODERN SCIENTIFIC EVIDENCE, supra note 24, § 33:7.
83. Limiting a forensic expert to only describing similarities and differences was the approach that Judge Louis Pollak adopted in his original opinion limiting fingerprint evidence. He later reversed himself and allowed the expert opinion without limitation. See United States v. Liera Plaza, 179 F. Supp. 2d 492 (E.D. Pa. 2002), vacated, 188 F. Supp. 2d 549 (E.D. Pa. 2002).
84. See Risinger, supra note 73, at 406-08 (collecting cases and discussing the problems inherent in permitting experts to testify regarding the frequencies of certain handwriting characteristics).
85. In all likelihood, it must be noted, a judge would exclude such evidence on the basis that most San Francisco jurors would know this fact, and thus the expert's testimony would be a waste of time.