United States v Crisp.docx

1、United States v CrispA brief analysis of the case of United States v. Crisp (2003) and some musings about its dissenting opinion.By Andre A. MoenssensDouglas Stripp Professor of Law EmeritusUniversitry of Missouri - Kansas CityOn March 31, 2003, the Court of Appeals for the Fourth Circuit handed dow

2、n the decision of United States v. Crisp, 324 F.3d 261 (4th Cir. 2003), holding that expert testimony on handwriting comparisons is admissible under the Daubert rules set by the United States Supreme Court. The same opinion also held that it was not an abuse of discretion for a trial court to admit

3、expert testimony regarding the identification of defendants palmprint. The court considered palmprint evidence to be admissible just like fingerprint evidence.We have discussed cases coming to similar results elsewhere on this Website, but unlike some of these other decisions, which were rendered by

4、 trial courts, the case we discuss here was handed down by an appellate tribunal, and is therefore binding precedent in the Fourth Circuit as well as persuasive authority for other courts. It deserves special mention at the outset as was recognized by the courts majority that no appellate court has

5、ever held that fingerprint identification evidence and handwriting comparison evidence is inadmissible!The majority opinion, while brief, requires no special introduction. Its import is readily absorbed. A few words need to be said, however, about the dissenting opinion. We do not doubt that the dis

6、senting judge is earnest in his conviction that fingerprint and handwriting identification testimony do not meet the Daubert factors. Nor can the judge, or anyone else, be criticized for having such a belief, even though it constitutes a value judgment with which the overwhelming majority of jurists

7、 have disagreed. There are areas in which the fingerprint and handwriting comparison professions might be rightly criticized for not having assembled what in todays vernacular is called a sufficient body of empirical research to buttress the disciplines basic tenets. But it is clearly a non-sequitur

8、 to suggest that if more research were conducted the findings of such research would disprove the validity of either one of these two disciplines. Indeed, ongoing research continues to validate both sciences/techniques; no research has as yet disproved the uniqueness of friction skin evidence or of

9、an individuals handwriting characteristics.The eminently practical reason why not more empirical studies have been conducted in the more than a century of court acceptance afforded both professions is simply that, until the Daubert and Kumho Tire opinions, the law did not require that an empirically

10、 established scientific foundation be demonstrated for the opinion evidence to be admissible. Decisions holding both fingerprint and handwriting evidence admissible predate even the 1923 Frye case giving birth to the familiar general acceptance requirement. It may well be that, unlike what was requi

11、red earlier, more empirical research might be required were todays courts to decide the admissibility issue for the first time. But that was not the case in earlier years.Despite what is stated above, validation research does exist. It has simply been ignored or deprecated by the lay critics who hav

12、e set themselves up as the supreme authorities on which branch of forensic science is or is not reliable. How do they get away with this? The critical commentary follows a pattern that is easily recognized by lawyers and judges if they but care to examine it. The few, but vocal, critics are, on the

13、whole, erudite and articulate law professors who have a far greater facility in the use of words and in legal advocacy than the majority of less scholarly oriented and far less articulate bench-working experts in both fields. Whats more, law professors have easy access to legal publications in which

14、 to advance their arguments publications that are also far more accessible and available to courts than is the truly scientific and technical literature, an access that is denied the non-legally trained experts. Law reviews typically do not accept articles written by non lawyers on supposedly legal

15、topics, though they have no difficulty accepting articles on scientific facts as long as these articles are written by lawyers!It is rather remarkable that the dissent, putting great stock in scientific studies and in peer review, nevertheless relies for its authority supporting the asserted unprove

16、n validity of fingerprint and handwriting evidence on these non-peer reviewed law review articles and books. The dissent seems to accept as scientific fact that which these critics assert. Such an acceptance is unwarranted. The law review articles and books cited contain many misstatements of scient

17、ific or even historic facts, which are repeated as the unquestioned truth by other law review authors. Thus, a particular line of thought followed in several law reviews may be traced to a single source. Legal authors tend to accept uncritically what is asserted in the same type of publication in wh

18、ich they publish. Conclusions drawn by some of the critic-authors are no doubt honestly held, but others are demonstrably false, as are some of the facts on which they rely.Such is also the case in the dissent in Crisp, which appears to accept as true that which non-scientist law review critics stat

19、e as scientific fact, without making an independent verification of the factual basis of the criticism. If a more inquiring attitude were to prevail with respect to law reviews renderings of science, applied science, or technology, it would also soon become obvious that a few of the critics who are

20、frequently cited by others have only thinly concealed advocacy purpose that strongly colors the credibility about their conclusions. Some critical articles are not the result of an impartial and searching inquiry, but rather are spawned by a preconceived advocacy position for which the article is to

21、 serve as legal authority. A forthcoming article, to be published in a (obviously non-peer reviewed) law review, will provide chapter, verse, and section to justify the rather harsh condemnation of some critics by this author.In relying on legal (rather than scientific) sources discussing peer revie

22、w in fingerprint comparisons, the dissenting opinion states that fingerprint examiners have their own professional publications, but that these publications, unlike typical scientific journals, . . . do not run articles that include or prompt critique or reanalysis by other scientists. That assertio

23、n, as most statements, is partially true and mostly incorrect. There are, of course, police journals that occasionally discuss fingerprints. But the respected journals in with both fingerprint and handwriting comparison experts publish include. among others, the Journal of Forensic Science and the J

24、ournal or Forensic Identification. Both are peer-reviewed journals. Frequently, articles or letters-to-the-editor in both of these journals and in other journals offer constructive criticism (as opposed to slash-and-burn destructive dismissals of validity) on topics discussed previously in the same

25、columns.Thus, the judges somewhat deprecating reference, no doubt made in good faith in view of the record of the case, to police journals, is unwarranted. Whats more, the fetal development of friction skin and the resulting scientific knowledge of the uniqueness of friction ridge detail (resulting

26、in fingerprints and palmprints) has been established by many highly credentialed scientists who had nothing to do with law enforcement. They were medical doctors, anatomists, embryologists, geneticists and anthropologists; their publications are found in books and articles published in scientific jo

27、urnals not related to forensic science over more than half a century. Neither the critics nor the dissent credit or cite these writings, despite the fact that they unanimously give scientific support to the uniqueness of friction ridge detail, a support that stands unrebutted. For a reference to som

28、e of these writings, see the related story by this author titled The Reliability of Fingerprint IdentificationA Case Report discussing the Llera Plaza decision cited by the dissent.Indeed, the Crisp dissent states, This lack of critical analysis in the fingerprint identification field has had a pred

29、ictable effect. Unlike traditional scientific fields where criticism and vibrant exchange of ideas have led to dramatic advances, the techniques used by fingerprint analysts have changed little over the years. The judge cites, as authority for this blatantly erroneous proposition, a writing by a you

30、ng graduate student and Ph.D. candidate which article was later parlayed in a book who did a literature study on personal identification for his thesis. In the process, he missed an awful lot of scientific data while at the same time drawing erroneous (though understandable ) conclusions from that w

31、hich he inaccurately understood.On the handwriting reliability issue, the dissenting opinion likewise relies on criticism of doubtful accuracy. The law professors-handwriting critics initial 1989 law review publication (in other words, published pre-Daubert) was based on a literature study done by t

32、he authors. The article, though presented in an argumentative fashion and using distorted data, raised some valid points about the absence of adequate empirical studies to establish the uniqueness of an individuals handwriting and the ability to document examiners to discover and demonstrate that tw

33、o writings were made by the same person.Since Daubert was decided, and after a trial court relying on Daubert limited (but did not bar) handwriting comparison evidence (United States v. Starzecpyzel 1995), half of dozen or more highly credentialed Ph.D. research scientists, associated with universities