do fingerprints lie?

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Late one afternoon in the spring of1998, a police detective named

Shirley McKie stood by the sea on thesouthern coast of Scotland and thoughtabout ending her life. A promisingyoung officer, the thirty-five-year-oldMcKie had become an outcast amongher colleagues in the tiny hamlet ofStrathclyde. A year earlier, she had beenassigned to a murder case in which anold woman was stabbed through theright eye with a pair of sewing scissors.Within hours of the killing, a team offorensic specialists had begun workingtheir way through the victim’s house.Along with blood, hair, and fibres, thedetectives found some unexpected evi-dence: one of the prints lifted from theroom where the murder took place ap-parently matched the left thumb of De-tective McKie.

Crime scenes are often contaminatedby fingerprints belonging to police offi-cers, and investigators quickly learn toeliminate them from the pool of sus-pects. But McKie said that she hadnever entered the house. Four expertsfrom the Scottish Criminal Record Of-fice—the agency that stores and identi-fies fingerprints for Scotland’s police—insisted, however, that the print washers. Though McKie held to her story,even her father doubted her. “I love mydaughter very much,’’ Iain McKie, whoserved as a police officer in Scotland formore than thirty years, told me earlierthis year. “But when they said the printwas Shirley’s I have to admit I assumedthe worst. My entire career I had heardthat fingerprints never lie.”

Nobody actually suspected McKie ofmurder, and in fact the victim’s handy-man, David Asbury, was charged withthe crime. The sole physical evidenceagainst him consisted of two finger-prints—one of his, lifted from an un-opened Christmas gift inside the house,

and one of the victim’s, found on a bis-cuit tin in Asbury’s home.The last thingprosecutors needed was for their ownwitness to raise questions in court aboutthe quality of the evidence. Yet McKiedid just that—repeating under oath thatshe had never entered the house. Asburywas convicted anyway,but Scottish pros-ecutors were enraged by McKie’s testi-mony. As far as they were concerned,McKie had not only lied; she had chal-lenged one of the evidentiary pillars ofthe entire legal system. Despite theirvictory in the murder trial, they chargedMcKie with perjury.

Desperate, she went to the public library and searched the Internet forsomebody who might help her. Amongthe names she came upon was that ofAllan Bayle, a senior forensic official at New Scotland Yard and perhaps the United Kingdom’s foremost finger-print expert. (It was Bayle’s expertiseand supporting evidence that helpedconvict one of the principal Libyan sus-pects in the 1988 bombing of Pan AmFlight 103, over Lockerbie, Scotland.)He agreed to review the prints, andwhat he saw astonished him.“It was ob-vious the fingerprint was not Shirley’s,’’Bayle told me recently. “It wasn’t even aclose call. She was identified on the leftthumb, but that’s not the hand the printwas from. It’s the right forefinger. Buthow can you admit you are wrong aboutShirley’s print without opening your-self to doubt about the murder sus-pect, too?” Bayle posted a comment onOnin.com, a Web site trafficked regu-larly by the world’s fingerprint commu-nity. “I have looked at the McKie case,’’he wrote. “The mark is not identical. Ihave shown this mark to many expertsin the UK and they have come to thesame conclusions.”

Bayle’s assertion caused a furor. Hewas threatened with disciplinary action,

shunned by his colleagues, and, after aquarter century with the MetropolitanPolice, driven from his job. But in theend McKie was acquitted, and Bayle’sstatement helped challenge a systemthat had, until then, simply been takenfor granted.

For more than a century, the finger-print has been regarded as an unas-

sailable symbol of truth, particularly inthe courtroom. When a trained experttells a judge and jury that prints found ata crime scene match those of the ac-cused, his testimony often decides thecase. The Federal Bureau of Investi-gation’s basic text on the subject is enti-tled “The Science of Fingerprints,’’ anda science is what F.B.I. officials be-lieve fingerprinting to be; their Web sitestates that “fingerprints offer an infalli-ble means of personal identification.’’The Bureau maintains a database thatincludes the fingerprints of more thanforty-three million Americans; it can besearched from precinct houses and prop-erly equipped police cruisers across thecountry. Fingerprints are regularly usedto resolve disputes, prevent forgery, andcertify the remains of the dead; theyhave helped send countless people toprison. Until this year, fingerprint evi-dence had never successfully been chal-lenged in any American courtroom.

Then, on January 7th, U.S. DistrictCourt Judge Louis H. Pollak—a for-mer dean of the law schools at Yale andat the University of Pennsylvania—is-sued a ruling that limited the use offingerprint evidence in a drug-relatedmurder case now under way in Phila-delphia. He decided that there were notenough data showing that methodsused by fingerprint analysts would passthe tests of scientific rigor required by the Supreme Court, and noted the“alarmingly high” error rates on peri-

ANNALS OF CRIME

DO FINGERPRINTS LIE?

The gold standard of forensic evidence is now being challenged.

BY MICHAEL SPECTER

“Are there people in prison who shouldn’t be?” a skeptic asked. “We still have no idea how well fingerprinting really works.”

96 THE NEW YORKER, MAY 27, 2002

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odic proficiency exams. Although JudgePollak later decided to permit F.B.I. fin-gerprint experts to testify in this partic-ular case, students of forensic sciencefelt his skepticism was justified. “Wehave seen forensic disciplines whichfocus on bite marks, hair analysis, andhandwriting increasingly questioned inthe courts,” Robert Epstein, who hadargued for the exclusion of fingerprinttestimony in the case, told me. “But wehave accepted fingerprinting uncriticallyfor a hundred years.’’

Epstein, an assistant federal publicdefender in Philadelphia, was responsi-ble for the first major court challenge tothe discipline, in 1999, in U.S. v. ByronMitchell. In that case, Epstein showedthat standards for examiners vary widely,and that errors on proficiency tests—which are given irregularly and in a va-riety of forms—are far from rare. Thecritical evidence consisted of two fin-gerprint marks lifted from a car used ina robbery.To prepare for the trial, F.B.I.officials had sent the prints to agenciesin all fifty states; roughly twenty per centfailed to identify them correctly. “Afterall this time, we still have no idea howwell fingerprinting really works,’’ Ep-stein said. “The F.B.I. calls it a science.By what definition is it a science? Whereare the data? Where are the studies? Weknow that fingerprint examiners are notalways right. But are they usually rightor are they sometimes right? That, I amafraid, we don ’t know. Are there a fewpeople in prison who shouldn’t be? Arethere many? Nobody has ever botheredto try and find out. Look closely at thegreat discipline of fingerprinting. It’s notonly not a science—it should not even beadmitted as evidence in an Americancourt of law.”

Fingerprints have been a source offascination for thousands of years.

They were used as seals on legal con-tracts in ancient Babylonia, and havebeen found embossed on six-thousand-year-old Chinese earthenware and pressedonto walls in the tomb of Tutankhamun.Hundreds of years ago, the outline ofa hand with etchings representing theridge patterns on fingertips was scratchedinto slate rock beside Kejimkujik Lake,in Nova Scotia.

For most of human history, usingfingerprints to establish a person’s iden-

tity was unnecessary. Until the nine-teenth century, people rarely left thevillages in which they were born, and it was possible to live for years with-out setting eyes on a stranger. With therise of the Industrial Revolution, citiesthroughout Europe and America filledwith migrants whose names and back-grounds could not be easily verified byemployers or landlords. As the sociolo-gist Simon Cole made clear in “SuspectIdentities,” a recent history of finger-printing, felons quickly learned to lieabout their names, and the soaring rateof urban crime forced police to searchfor a more exacting way to determineand keep track of identities. The firstsuch system was devised in 1883 by aParisian police clerk named AlphonseBertillon. His method, called anthro-pometry, relied on an elaborate set of an-atomical measurements—such as headsize, length of the left middle finger,face height—and features like scars andhair and eye color to distinguish oneperson from another. Anthropometryproved useful, but fingerprinting, whichwas then coming into use in Britain,held more promise. By the eighteen-sixties, Sir William J. Herschel, a Britishcivil servant in India, had begun to keeprecords of fingerprints and use them toresolve common contract disputes andpetty frauds.

Fingerprinting did not become in-

dispensable, however, until 1869, whenBritain stopped exiling criminals to Aus-tralia, and Parliament passed the Habit-ual Criminals Act. This law requiredjudges to take past offenses into accountwhen determining the severity of a sen-tence. But in order to include prior of-fenses in an evaluation one would needto know whether the convict had a pre-vious record, and many criminals simplyused a different alias each time theywere arrested.The discovery that no twopeople had exactly the same pattern ofridge characteristics on their finger-tips seemed to offer a solution. In 1880,Dr. Henry Faulds published the firstcomments, in the scientific journal Na-ture, on the use of fingerprints to solvecrimes. Soon afterward, Charles Dar-win’s misanthropic cousin, Sir Fran-cis Galton, an anthropologist and thefounder of eugenics, designed a systemof numbering the ridges on the tips of fingers—now known as Galtonpoints—which is still in use throughoutthe world. (Ultimately, though, he sawfingerprints as a way to classify peopleby race.)

Nobody is sure exactly how MarkTwain learned about fingerprints, buthis novel “Pudd’nhead Wilson,” pub-lished in 1894, planted them in theAmerican imagination.The main char-acter in the book, a lawyer, earned the nickname Pudd’nhead in part be-cause he spent so much time collecting “finger-marks”—which was regarded asproof of his foolishness until he as-tounded his fellow-citizens by using themarks to solve a murder. If you were towalk into a courtroom today and listento the testimony of a typical forensic ex-pert, you might hear a recitation muchlike Pudd’nhead Wilson’s:

Every human being carries with him fromhis cradle to his grave certain physical markswhich do not change their character, and bywhich he can always be identified—and thatwithout shade of doubt or question. Thesemarks are his signature, his physiological au-tograph, so to speak, and this autograph can-not be counterfeited, nor can he disguise it orhide it away, nor can it become illegible bythe wear and the mutations of time. . . . Thissignature is each man’s very own. There is noduplicate of it among the swarming popula-tions of the globe!

Some things have changed sincePudd’nhead Wilson, of course. A fewweeks ago, I visited the headquarters


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of the Integrated Automated Finger-print Identification Systems, the F.B.I.’sbillion-dollar data center, just outsideClarksburg, West Virginia—a citadel ofthe American forensic community.Afterdriving past a series of shacks and double-wides and Bob Evans restaurants, youcome upon a forest with a vast, futuris-tic complex looming above the trees.(I.A.F.I.S. moved from more crowdedquarters in the Hoover Building in 1995,thanks to the influence of the state’s se-nior senator, Robert C. Byrd.)

Clarksburg is home to the world’slargest collection of fingerprints; on anaverage day, forty thousand are fed intothe system. The I.A.F.I.S. comput-ers, which can process three thousandsearches a second, sort through the da-tabase in a variety of ways. For example,they compare complete sets of finger-prints in the files with new arrivals—as when a suspect is held in custody and the police send his “ten-prints”to I.A.F.I.S. The computer hunts forshared characteristics, and then attemptsto match the prints to a record on file.“We identify about eight thousand fugi-tives per month here,’’ Billy P. Martin,the acting chief of the Identificationand Investigative Services Section, toldme. Martin said that eleven per cent ofjob applicants whose fingerprints areentered into the system—they could beday-care workers, casino staff, federalemployees—turn out to have criminalrecords; as many as sixty per cent of thematches are repeat offenders.

The center looks like a NASA controlroom, with dozens of people monitor-ing the encrypted network of finger-print machines sending in data frompolice stations throughout the country.The main computer floor is the size oftwo football fields and contains sixty-two purple-and-gray “jukeboxes,” eachfilled with two hundred compact diskscontaining fingerprints. (There are threethousand sets on each CD.) Whensomeone is arrested, his prints are ini-tially searched against a state’s computerfiles. If the search finds nothing, theinformation is forwarded to the fed-eral database in Clarksburg. To make amatch, the I.A.F.I.S. computer analyzesthe many points on the ridges of everyfingerprint it receives, starting with thethumb and working toward the pinkie;only when the data produce prints that

match (or several prints that seem sim-ilar) is the original print forwarded to ananalyst for comparison.

“We used to go to a file cabinet, pullout paper cards. If it was all loops—which is the most common type ofprint—you could spend an hour,’’ Mar-tin said. “Now a computer algorithmdoes it in seconds. The system searchesthe electronic image against the data-base and pulls up the image onto thescreen. The accuracy rate on first run is99.97 per cent.’’ Still, this would meanthat the I.A.F.I.S. computers makethree hundred mistakes in every millionsearches.That is where trained examin-ers come in. The patterns on fingertipsare more like topographical maps orhandwriting than, say, bar codes. Theycan be so similar that even the most so-phisticated computer program can’t tellthem apart; it takes a trained human eyeto detect the subtle differences.

I sat with one of the examiners in a dim, nearly silent room lined with what seemed like an endless series ofcubicles. At each station, someone wasstaring at a monitor with two huge fin-gerprints on it. No two people—noteven identical twins—have ever beenshown to share fingerprints. The fric-tion ridges that cover the skin on yourhands and feet are formed by the seven-teenth week in the womb; at birth theyhave become so deep that nothing canalter them, not even surgery. Look atyour fingertips: the patterns resemblefinely detailed maps of the bypasses andexit ramps on modern roads. Expertsuse the nomenclature of the highway to describe them: there are spurs, bifurca-tions, and crossovers. Some people havefingertips that are dominated by “loops,”others by “tented arches” or small circlesthat examiners call “lakes,” or smallerones still, called “dots.” Collectively,these details are referred to as minu-tiae—an average human fingerprintmay contain as many as a hundred andfifty minutia points. To identify finger-prints, an expert must compare thesepoints individually,until enough of themcorrespond that he or she feels confidentof a match.

When fingerprints are properly re-corded (inked, then rolled, finger by fin-ger, onto a flat surface, or scanned into amachine that captures and stores eachfinger as a digital image), identification

works almost flawlessly. The trouble isthat investigators in the field rarely seethe pristine prints that can be quicklyanalyzed by a computer; most of theprints introduced at criminal trials arefragments known as “latent prints.”Crime scenes are messy, and the averagefingerprint taken from them representsonly a fraction of a full fingertip—abouttwenty per cent. They are frequentlydistorted and hard to read, having beenlifted from a grainy table or a blood-stained floor. “It is one thing to say thatfingerprints are unique and quite an-other to suggest that a partial latentprint, often covered in blood or takenfrom an obscure surface, is unique, iden-tical, or easy to identify,’’ Barry Schecktold me. In the past decade, Scheck,who directs the Innocence Project, hasused DNA evidence to exonerate morethan a hundred prisoners, some of themon death row. “We have always beentold that fingerprint evidence is the gold

standard of forensic science. If you havea print, you have your man. But it is notan objective decision. It is inexact, par-tial, and open to all sorts of critics.’’

Police use several methods to dis-cover latent fingerprints.First, they shinea flashlight or a laser along the clean,solid surfaces on which a print may havebeen left by the perspiration and oil on a

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fingertip. When a print is discovered,detectives use a brush and powder tomark it, much as they did in the nine-teenth century; the powder clings to theperspiration. (The method works beston smooth surfaces, like glass.) Theprint is then photographed and liftedwith tape.

The technology for retrieving partialand obscure fingerprints keeps improv-ing. On a recent episode of the televi-sion program “C.S.I.,” you might haveseen detectives using a technique calledsuperglue fuming to reveal the outlineof a face on a plastic bag—an uncon-ventional use of a common practice. Inorder to find difficult prints on an irreg-ular surface, such as the human body,crime-scene investigators blow fumesof superglue over it. As the fumes ad-here to the surface, the ridges of anyfingerprint left there turn white andcome clearly into view. Another com-mon method involves ninhydrin, whichworks like invisible ink: when you dousepaper with it, the chemical brings outany sweat that may have been left byfingertips. Ninhydrin is particularly use-ful with old prints or those covered inblood.

F.B.I. fingerprint examiners have avariety of computer tools—a sort ofspecialized version of Photoshop—tohelp them compare rolled prints withthose in their system. In front of me, anI.A.F.I.S. examiner stared at his com-puter screen as a training instructor,Charles W. Jones, Jr., explained the pro-cess. “He is looking for ridges that formdots,’’ Jones said. “Bifurcations. Usuallythey look for six or seven of those.’’ Theexaminers work around the clock, inthree shifts, and are required to evaluateat least thirty prints an hour.They knownothing about the people attached to thefingers on their screens; the prints couldbe those of a rapist, a serial killer,Osamabin Laden, a woman applying for a jobin the Secret Service,or a bus driver fromQueens. (“Yesterday I did fifty-one for acouple hours in a row,’’ an examiner toldme proudly.)

At the bottom of the screen thereare three buttons—“Ident,” “Unable,”and “Non-Ident”—and the examinermust click on one of them. If he identi-fies a finger, the print goes to a secondanalyst. If the two examiners indepen-dently reach the same conclusion, the

fingerprint is considered to have beenidentified. If not, it gets forwarded to ananalyst with more experience.“We havea pretty good fail-safe system,’’ Jonessaid. “Computers help immensely. Butin the end they can’t pull the trigger.That’s our job.’’

Only a human being can make crit-ical decisions about identity, and yet thetalent, training, and experience of ex-aminers vary widely. “The current iden-tification system . . . is only as genuineas the knowledge, experience, and abil-ity of the specialist carrying out thecomparison,’’ David R. Ashbaugh, a

staff sergeant with the Royal CanadianMounted Police,writes, in “Quantitative-Qualitative Friction Ridge Analysis,”which is considered the Bible of thefield. And although fingerprint analysishas been in use for decades, there hasnever been any consensus about profes-sional standards. How many distinctcharacteristics are necessary to provethat a latent fingerprint comes from aspecific person? The answer is differentin New York, California, and London.In certain states, and in many countries,fingerprint examiners must show thatprints share a set number of Galton


OATH

I will never forget you young women girls—passing— glimpsed suddenly in a crowd on stairs in a bazaar a metro’s labyrinthfrom windows of vehicles

—like summer lightning—a forecast of good weather—like a landscape embellished by the reflection in a lake—like an apparition in a mirror

at the betrothal of what is and what is just an intuition

—at a ball when the orchestra dies away and dawn puts unlit candles in windows

I will never forget you—pure source of joy—I lived also thanks to your deer’s eyes—lips not mine swarthy hands that caressingly selected silvery fish

Young girl from the Antilles I remember you probably the best seen only once chez le marchand de journauxI looked tongue-tied held my breath not to scare you away and for a moment thought—that going with you we would change the world

I will never forget you— surprised movement of eyelids indescribable tilt of the head nest in the palm of the hand

in my faithful memory I repeat unchanging mystical faces without names

and a rose

in black hair

—Zbigniew Herbert(Translated, from the Polish, by John and Bogdana Carpenter)

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points before they can say they havemade an identification. Australia andFrance require at least twelve match-ing Galton points; in Italy, the numberis sixteen. In America, standards vary,even within a state. The F.B.I. doesn’trequire a minimum number of points;all such regulations were dropped fiftyyears ago, because, according to Ste-phen B. Meagher, the chief of the Bu-reau’s latent-print unit, the F.B.I. be-lieves that making an identificationusing Galton points alone can cause errors.

Meagher says that fingerprint analy-sis is an objective science; Robert Ep-stein, the Philadelphia attorney who has led the fight against presenting fin-gerprint evidence in court, says it is not a science at all. Neither is exactly right.Examining the many contours of a hu-man finger is not as objective as measur-ing someone’s temperature or weight,or developing a new vaccine. But it’s notguesswork, either. It involves, inevitably,human judgment, and most people agreethat when it is done well it is highly ac-curate. The difficulty is in determiningwhether it has been done well.

Scientific methodology is based ongenerating hypotheses and test-

ing them to see if they make sense; inlaboratories throughout the world, re-searchers spend at least as much timetrying to disprove a theory as they dotrying to prove it.Eventually, those ideasthat don’t prove false are accepted. Butfingerprinting was developed by the po-lice, not by scientists, and it has neverbeen subjected to rigorous analysis—you cannot go to Harvard, Berkeley, orOxford and talk to the scholar workingon fingerprint research. Yet by the earlytwentieth century fingerprinting hadbecome so widely accepted in Americancourts that further research no longerseemed necessary, and none of any sig-nificance has been completed.

David L. Faigman, who teaches atthe Hastings College of the Law and isan editor of the annually revised foren-sic text “Modern Scientific Evidence,’’has spent most of his career campaign-ing to increase the scientific literacy ofjudges and juries. Faigman likens theacceptance of fingerprint evidence tothe way leeches were once assumed tobe of great medical value.“Leeches were

used for centuries,’’ he told me. “It wasespecially common for the treatment ofpneumonia and it was considered an ef-fective therapy. It wasn’t till late in thenineteenth century that they did theclinical tests to show that leeches didnot help for pneumonia, and they mayhave actually hurt. Fingerprinting is likethat in at least one crucial way: it issomething we assume works but some-thing we have never properly tested.Until we test our beliefs, we can’t say forsure if we have leeches or we have as-pirin”—an effective remedy that wasused before it was understood. “One ofthe things that science teaches us is thatyou can’t know the answers until youask the questions.’’

The discussion of fingerprinting isonly the most visible element in a muchlarger debate about how forensic sci-ence fits into the legal system. For years,any sophisticated attorney was certain tocall upon expert witnesses—doctors,psychiatrists, Bruno Magli shoe sales-men—to assert whatever might help hiscase. And studies have shown that juriesare in fact susceptible to the influence ofsuch experts. Until recently, though,there were no guidelines for qualifica-tion; nearly anybody could be called anexpert, which meant that, unlike otherwitnesses, the expert could present his“opinion” almost as if it were fact. Ex-perts have been asked to testify aboutthe rate at which a tire would skid, andthe distance blood would splatter whena certain calibre bullet smashed into askull.They have lectured scores of jurieson the likelihood that a medicine couldcause a particular side effect; they haveinterpreted polygraphs and handwrit-ing, and have pronounced on whether abite mark was made by one set of teethto the exclusion of all others.

Although forensic evidence hasproved particularly powerful with ju-ries, it is particularly weak as a science.By the nineteen-eighties, the kind ofevidence that was routinely admitted

into court without any statistical ground-ing or rationale had earned a name:“junk science.” And junk science hadbecome ubiquitous. With the problemgrowing out of control, in 1993 the Su-preme Court took up a lawsuit calledDaubert v. Merrell Dow Pharmaceuti-cals. The case involved a child who suf-fered from serious birth defects. Hislawyers claimed that the defects werecaused by Bendectin, a drug that wasfor many years routinely prescribed formorning sickness, which his mothertook while she was pregnant.The com-pany argued that no valid evidence ex-isted to support the claim. The Court’sdecision set a new standard for scientificevidence in America: for the first time,it held that it was not permissible forexpert witnesses to testify to what was“generally accepted” to be true in theirfield. Judges had to act as “gatekeepers,”the Court said; if an expert lacked reli-ability he was no longer allowed in thecourtroom. The ruling, and others thatexpanded upon it, laid down clear guide-lines for the federal bench, requiringjudges to consider a series of questions:Could a technique be tested or provedfalse? Was there a known or potentialerror rate? (DNA identification has pro-vided the model, because experts havegathered enough statistical evidence toestimate the odds—which are astro-nomical—that one person’s DNA couldbe traced to another.) The Court alsoinstructed judges to consider whether a particular theory had ever been sub-jected to the academic rigor of peer re-view or publication.

The Daubert ruling forced federaljudges to become more sophisticatedabout science, which has not been easyfor them. “Daubert changed every-thing,” Michael J. Saks, a law professor at Arizona State University, who haswritten widely on the subject, told me.“And it is pretty clear when you look at those criteria that fingerprintingsimply doesn’t satisfy any of them.’’Since the Daubert ruling, federal courtshave judged handwriting evidence andhair identification to be unscientific.The use of polygraph data has also beencurtailed. Questions have been raisedabout ballistics—say, whether a bulletcan be traced back to a particular gun.Somehow, though, until Judge Pollakcame along, challenges to fingerprint-


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ing continued to be regarded as heresy.Relying largely on testimony pre-

sented by Robert Epstein in U.S. v.Byron Mitchell, the first post-Daubertcase involving fingerprint testimony,Judge Pollak ruled in January that an expert could say whether he thought fingerprints belonged to the people ac-cused of the crime, but he could not say that the fingerprints he had exam-ined were, beyond doubt, those of thedefendant.

Pollak is one of the federal judi-ciary’s most respected judges. Federalprosecutors were so concerned that anyruling he issued would carry a signifi-cance even greater than its legal weightthat they asked the Judge to reconsiderhis precedent-shattering decision. Pol-lak agreed.

Late in February, Pollak held a hear-ing on the reliability of fingerprint evi-dence. For three days, several of theworld’s most prominent experts dis-cussed their field in his courtroom.TheF.B.I.’s Stephen B. Meagher testifiedthat no Bureau analyst had ever mis-identified a person in court, and thatthe Bureau’s annual proficiency test was among the reasons that the Judgeshould be confident about admittingexpert testimony. Allan Bayle, the Brit-ish forensic specialist, flew in fromLondon at the request of the defense.He had a different view. He told Pollakthat the F.B.I.’s proficiency test was soeasy it could be passed with no morethan six weeks of training. “If I gave myexperts [at Scotland Yard] these tests,they would fall about laughing,” he toldPollak in court. Later, in conversationwith me, he expanded on those com-ments. “The F.B.I. are conning them-selves and they are conning everybodyelse,’’ he said. “They don’t even use realscene-of-crime marks for the finger-print tests.” He pointed out that the fingerprints used in the exams were sodifferent from each other that almostanybody could tell them apart. “Let’ssay I asked you to look at a zebra, a gi-raffe, an elephant, and a lion. Then Iasked you to find the zebra. How hardwould that be? What the Bureau shouldbe doing is comparing five zebras andselecting among them.” Bayle and othercritics stopped short of calling finger-print evidence junk science, but theynoted that there are few data showing

how often latent prints are properlyidentified.

By February 27th, the final day ofthe hearing, the fissures in an old andaccepted discipline had become visible,and Judge Pollak promised to issue afinal ruling within a couple of weeks.

Afew days after Pollak’s hearingended, I flew to Cardiff to attend

the annual meeting of the FingerprintSociety. It was raining in Wales, and the members of the society were deeply unsettled because their profession wasunder assault. Each year, the societygathers for a few days to listen to lecturesand to talk about developments in thefield. The society has always been aclub—the type where you might ex-pect to stumble upon Sherlock Holmesor G. K. Chesterton. The bar at theThistle Hotel, where the conference washeld, was filled with police officers fromSussex, Aberdeen, and most places inbetween. The conference was well at-tended by representatives of the UnitedStates Secret Service and the F.B.I.There were also a few stray academicsinterested in the latest obscure tech-nology, such as magnetic nanoflakepowders, which are able to capture fin-gerprints without disturbing whatevertraces of DNA may be present. (Withconventional methods, an investiga-tor has to choose: either swab a mark to harvest the DNA or lift it to find theprint.)

By the time I arrived, the society waspreoccupied by two issues: the Pollakhearings and the lingering ill will fromthe McKie case, in Scotland. One ofthose in attendance was Meagher, thelead F.B.I. witness in Judge Pollak’scourtroom.I introduced myself, and toldhim that I understood he couldn’t dis-cuss the Philadelphia case while it wasunder review, but asked if we could talk about the field in general. “No,’’ hesaid,without a moment’s hesitation. IainMcKie had also come to Cardiff thatweekend, as had Allan Bayle. McKie,a tall, reedy man with a great nimbus of curly white hair, presented a lecture on the ethics of fingerprinting. He re-mained livid about the fact that a finger-print had destroyed his daughter’s ca-reer; although she had been acquitted of perjury, she felt unwelcome on thepolice force after having been strip-


searched and jailed by her colleagues,and had resigned soon after her trial.She never returned to work. Today, shespends much of her time trying to forceScottish authorities to admit that whatthey did to her was wrong. “I believe aperson made a mistake, and instead ofadmitting it they were prepared to sendme to jail,’’ Shirley McKie said after shewas acquitted of perjury. “It ruined mylife, and now I am trying to pick up thepieces.”

The Scottish Criminal Record Officehas never acknowledged the error, norhas the Fingerprint Society issued anystatement about the incident. (David As-bury, the man convicted of the murder,was released in August of 2000,pendingan appeal. As expected, the judge in thecase questioned the validity of the fin-gerprint evidence that had led to his con-viction.) In Cardiff,McKie told the Fin-gerprint Society that the system theyrepresented was “incestuous, secretive,and arrogant. It has been opened to un-precedented analysis and it’s sadly lack-ing. It pains me to say that,because I wasa police officer for thirty years.You are in-dicted on the basis of a fingerprint. Youare not innocent till proven guilty; if thepolice have a print, you are assumed to beguilty. We need to start a new culture.The view that the police and fingerprintevidence are always right, the rest of theworld be damned, has to end.’’

Afterward, the corridors and confer-ence rooms were buzzing; it was as ifsomebody had challenged the funda-mentals of grammar at the annual meet-ing of the Modern Language Associa-tion. But McKie was far from the onlyspeaker at the conference to raise ques-tions about the field.Christophe Cham-pod, who works for a British organiza-tion called the Forensic Science Service,has long attempted to apply rigorous statistical methods to fingerprinting.Champod spoke in an understated andacademic manner, but what he had tosay was even more forceful than McKie’spresentation. He told the audience thatthey had only themselves to blame forthe state of the field, that for years theyhad resisted any attempts to carry outlarge trials, which would then permit examiners to provide some guidance tojuries about the value of their analysis,as is the case with DNA. “What we are trying to do in this field is reduce,

TNY—05/27/02—PAGE 103—133 LS—LIVE OPI ART R 11074——CRITICAL CUT TO BE WATCHED THROUGHOUT THE ENTIRE PRESS RUN—GUIDANCE PROOF TO ARRIVE ON THURS.A.M. POUCH

AT THE CLUBS BY RUVEN AFANADOR The guitarist and vocalist John Pizzarelli brings his laid-back charm and TinPan Alley songbook to Feinstein’s at the Regency after the Memorial Day weekend. His father, the seven-string master Bucky, andhis wife, the singer Jessica Molaskey, complete an outfit that John once described as “the von Trapps on Martinis.”

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reduce, reduce the population so thatthere is only a single individual that can possess a set of fingerprints. . . . Butwe can never examine the fingerprints of the entire universe. So, based on your experience, you make an infer-ence: the probability that there is an-other person in the universe that couldhave a good match for the mark is very small. In the end, it’s like a leap offaith. It’s a very small leap, but it is a leap nonetheless.”

Half an hour had been allotted forquestions,but there was only silence.Af-terward,one of the organizers explainedit to me: “He was using the terms of re-ligion to describe our science.That’s justnot fair.”

Allan Bayle invited me to visit him inLondon after the meeting. Bayle is

six feet five with sandy hair and flecks ofgray in his blue eyes. He had recentlymarried and he lives with his wife, child,and mother-in-law just steps from theM1 motorway entrance in Hendon, onthe northern edge of the city. We sat inhis conservatory on a cloudy day whilehis five-month-old boy slept in a strollerbeside us.

Bayle was frustrated.For the past fiveyears,he had worked mostly as a lectureron fingerprints for the Metropolitan Po-lice. “I taught advanced forensic sceneexamination, and I loved it. Once I said

I would give evidence in the McKie case,though, I was no longer allowed to go to meetings. But that is not why I left.They did nothing about this mistake inidentity. When you know something iswrong,how can you stay silent?”He toldme he was particularly upset that ShirleyMcKie’s career as a police officer hadended for no reason. Bayle’s life, too, haschanged. He now works as an indepen-dent consultant. Although he has beenportrayed as a critic of fingerprint analy-sis,he is critical only of the notion that itshould never be questioned. “It’s a valu-able craft,” he said. “But is it a sciencelike physics or biology? Well, of coursenot. All I have been saying is, let’s ad-mit we make errors and do what we can to limit them. It is such a subjectivejob. The F.B.I. want to say they are notsubjective. Well, look at what DavidAshbaugh—certainly among the mostnoted of all fingerprint analysts—saidwhen he testified in the Mitchell case.”Ashbaugh had clearly stated that fin-gerprint identification was “subjective,”adding that the examiner’s talents are his “personal knowledge, ability, and experience.”

Bayle took out a large portfolio con-taining dozens of fingerprints, as well as gruesome pictures of crime scenes.“Look at the mess,’’ he said. He showedme a series of photographs: jagged fin-gerprints—black smudges, really—re-

covered from the scenes of several mur-ders he had investigated. “With all thatinformation,you then come to your con-clusions. You have to somehow matchthat to this clean image’’—he handedme a picture of a perfect print, taken at apolice booking—“and say,finally, it’s oneman’s print. You have got to look at ev-erything, not just points. The Bureauhas not had a missed ident in all theiryears of working, and I applaud that.But they are not testing their experts’ability. And that is dangerous.’’

The following week, Stephen Mea-gher agreed to speak with me at the

F.B.I.headquarters,on Pennsylvania Av-enue in Washington. Meagher is per-haps the best known and most forcefuladvocate for the view that fingerprint ev-idence is scientifically valid and that itought to be welcome in courts.

“But is it really a science?” I asked assoon as we settled down to talk in his of-fice. Meagher said that he didn’t think of science as a term that could be easilydefined or tailored to fit all disciplines in the same way. “There is academic sci-ence, legal science, and forensic science,’’he told me. “They are different. You canbe an expert in the field and give tes-timony without having an academiclevel of scientific knowledge. . . . It is notachievable to take pure science and moveit into a legal arena.’’ This seemed sur-prising, since Meagher had often arguedthat, when performed correctly, finger-print analysis is an “objective’’ science.In 1999, when he was asked in courtwhether, based on the unique propertiesof fingerprints, he had an opinion ofthe error rate associated with his work,he said, “As applied to the scientificmethodology, it’s zero.” (Scientists don’ttalk this way; it is an axiom among bio-medical researchers that nothing in biol-ogy is true a hundred per cent of thetime.)

Later, when I asked David Faigman,the Hastings law professor, whether it made sense to divide science into legal,academic, and forensic subgroups, helaughed.

“Of course it makes no sense,’’he said.“Mr. Meagher operates on a sixteenth-century notion—a Francis Bacon idea—of what science is all about. To me, theanalogue for law is meteorology. It dealswith physics and chemistry—the most“Trying to live more in the moment was your idea.”

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basic sciences. Yet it has to make predic-tions and empirical statements regardingcomplex reality.That is because so manyfactors determine the weather that it’sreally a probabilistic science.And I thinkfingerprinting is the same.”

“Most fields of normal science couldpull from the shelf dozens or hundreds,if not thousands, of studies testing theirvarious hypotheses and contentions,which had been conducted over the pastdecades or century, and hand them tothe court,’’Michael Saks wrote in “Mod-ern Scientific Evidence.”For fingerprint-ing there was nothing. In 1999, the F.B.I.conducted its study in preparation forthe Byron Mitchell trial.The study askedexaminers to match the two actual latentprints taken from the car in the Mitchellcase with the known set of fingerprintsof the man on trial. Both sets of printswere sent to the crime laboratories offifty-three law-enforcement agencies.Ofthe thirty-five agencies that examinedthem and responded, most concludedthat the latent prints matched the knownprints of the accused; eight said that nomatch could be made for one of the la-tent prints, and six said that no matchcould be made for the other print. TheF.B.I., realizing it had a problem, sentannotated enlargements of all the printsto those examiners who had said the fingerprints couldn’t be matched. In thesephotographs, the points of similarity on the fingertips were clearly marked.This time, every lab adopted the F.B.I.’sconclusions.

When I asked Meagher about thestudy, he told me that the test was sup-posed to demonstrate the uniqueness ofthe prints; it was not meant to be a test of competency. He claimed opponentshave used the data unfairly. At the sametime, he conceded that it would not matter how clean a fingerprint was if theperson examining it hadn’t been trainedproperly.“Our system is a huge statistical-probability model, but it doesn’t makeidentifications, because it doesn’t haveall the information that is needed,” hesaid. “It’s a job for human beings.”

On March 13th, Judge Pollak va-cated his earlier order. He issued

a new opinion, in which he stated thatthe defense had succeeded in raising“real questions about the adequacy ofthe proficiency tests taken annually

by certified F.B.I. fingerprint exam-iners.” Yet he was persuaded by theF.B.I.’s record of accuracy, and wrotethat “whatever may be the case for otherlaw-enforcement agencies” the Bureau’sstandards seemed good enough to per-mit F.B.I. experts to testify in his court-room. “In short,’’ he concluded, “I havechanged my mind.’’ It was, naturally, ablow to the opposition—though Pollakwas careful to rule only on the case be-fore him and only with regard to theF.B.I.

I met with the Judge shortly after heissued his decision. Having arrived earlyfor our meeting, I watched as he led the jury-selection process in the case inwhich Meagher will now be permittedto testify. Like most courtrooms, it wasdecorated with an American flag, but itwas filled with art as well: prints by Ma-tisse, Cézanne, and Eakins and draw-ings by Victor Hugo lined the walls.

During the lunch break, we sat in his ramshackle office. The stuffing wasfalling out of both of our chairs. Pollak,a lively man in his late seventies, de-clined to talk specifically about the case,but was happy to consider the broaderissues it raised. “The most importantquestion here, of course, is, Am I theright person to be a gatekeeper?’’ he said.“I, who know little of science. . . . Associety comes to rely more fully on tech-nology, the question will become acute.’’Pollak said that he found it worrisomethat the Supreme Court ruling in theDaubert case meant that he could ruleone way on an issue like fingerprints

and another federal judge in a differentjurisdiction could do the opposite, andneither ruling would be reversed (theCourt will hear appeals only on proce-dure, not on the law). He was frankabout how poorly prepared most judgesare for making decisions based on scien-tific issues.

“I want to tell you that shortly after Igot into this line of work there was nomore unqualified district judge”—formaking such decisions—“in the UnitedStates,’’ Judge Pollak said of himself.He told me that in the early nineteen-eighties he had met a former chief ex-ecutive of DuPont at a reception. “Heasked me how it can be that people likeme are entrusted to make such majorscientific decisions. He wasn’t question-ing my good faith. But by virtue of myjob I have been asked to make deci-sions that are out of the range of anycompetence that I have.” Pollak con-ceded that the DuPont chairman had apoint. I asked if he felt scientificallycompetent to rule on the current case inPhiladelphia. He laughed but didn’t an-swer. “I knew when I decided the thingthere was going to be some surprise,’’ hesaid, referring to his initial opinion.“Honestly, I don’t think I had antici-pated the degree to which people wouldbe startled. . . . Other lawyers in finger-print situations are now almost dutybound to raise these questions and chal-lenges again. How could they in goodfaith act in any other way? This decisionis certainly not the end. I think we can be certain of that.’’ ♦


“I wouldn’t worry about it—this is marketing’s headache.”

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do fingerprints lie?

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