According to the Department of Homeland Security, he is Victor Antonio Pecheca-Aromboles, an old cocaine dealer born in the Dominican Republic who served time in Pennsylvania in the early 1990s, was deported, and came back to the U.S. under an alias (via Puerto Rico, where he lived illegally for a few years), ending up in Anchorage as a waiter in a brew pub for the last ten years. [1] On the basis of a comparison of copies of fingerprint cards from Pennsylvania (for Pecheca-Aramboles) and New Jersey, Puerto Rico and Alaska (for Acosta-Roque), the government convinced the immigration judge and the Board of Immigration Appeals that the Anchorage waiter is the former Pennsylvania cocaine dealer.
The removal order is before the Ninth Circuit Court of Appeals. According to law professor Caleb Mason, who represents Acosta-Roque, the “the only question is the weight of an alleged 8-point match: is that enough, standing on its own, to warrant a finding of identity by clear and convincing evidence?” [1] To address this question, Professor Mason enlisted the aid of 39 “Scientists and Scholars of Fingerprint Identification as Amici Curiae” to file a brief in support of his client. The brief, which was written by Simon Cole of the University of California at Irvine, describes the expert’s testimony as problematic, unjustified, inadequately supported, vague, and groundless. [2]
My reading of the transcript, however, suggests that the issue on appeal is not really whether “an alleged 8-point match” is enough. The four ten-print cards were compared by Susan R. Blei, the supervisor of Alaska’s Criminal Records and Identification Bureau. Ms. Blei’s qualifications consisted of about seven weeks of training courses over the years, many “educational conferences” on AFIS (the Automated Fingerprint Identification System) organized by NEC, and many years of on-the-job experience. She never testified that there was a match at exactly eight points of comparison. She testified that she likes to have at least eight points before signing off on an identification, but she did not give the number of features on which she relied to form her “100% certain” opinion that all the ten-print cards came from one and the same individual. In essence, she said, “I compared, I counted, I concluded (and so did my unnamed verifying examiner).” She provided this ipse dixit with the encouragement of the government’s counsel. Thus, the issue should be whether the opinion of a fingerprint examiner, presented in this conclusory, “trust-me” fashion, can amount to clear and convincing evidence—the standard the government has to meet to establish that Acosta-Roque obtained his permanent resident status fraudulently, having been deported under a different name.
Is a fingerprint analyst’s assertion of identity clear and convincing proof when it lacks any meaningful description of the process, when it contains no statements that would show that the examiner followed accepted protocols (beyond the fact that the examiner took some short courses and has years of experience), and does not indicate the examiner’s performance on rigorous tests of her proficiency? There is at least a decent argument that it does not.
Related questions are whether the “trust me” testimony in this case met professional and ethical standards and whether existing scientific research warrants the claim of 100% certainty. I shall comment on some aspects of these questions, and on the positions of the “scientists and scholars of fingerprint identification,” in later postings.
References
1. Caleb Mason, Scientific Validity of Fingerprint Comparison: New Case and Amicus Brief (Mar. 5, 2012), http://prawfsblawg.blogs.com/prawfsblawg/2012/03/scientific-validity-of-fingerprint-comparison-new-case-and-amicus-brief.html.
2. Brief of Scientists and Scholars of Fingerprint Identification as Amici Curiae in Support of Petitioner and in Favor of Reversal, Acosta-Roque v. Holder, No. 11-70705 (9th Cir., Mar. 8, 2012).
Saturday, 17 March 2012
Thursday, 8 March 2012
Latent Fingeprint Identification for a New Generation: The NIST Report
Last month, after three-and-one-half years of seemingly interminable meetings, the Law Enforcement Standards Office at NIST (the National Institute of Standards and Technology) released a comprehensive report on improving the practice of latent print examination for criminal identification. It can be downloaded as one big pdf file. My views are not those of an objective observer (I was the editor and an author of the report), but I can say with 100% confidence that the book should be of interest to lawyers who encounter fingerprint evidence, not to mention all fingerprint analysts and many other individuals concerned with the production and delivery of forensic science evidence.
The oversized working group included both “insiders” (fingerprint examiners and representatives of professional organizations) and “outsiders” (psychologists, statisticians, engineers, law professors, etc.). Like most expert groups charged with making scientific assessments and recommendations for best practices, the group did not conduct new research, but it reviewed and described a substantial body of existing work in the forensic sciences, cognitive science, human factors, and law.
The group was hardly unanimous on every issue, but it succeeded in addressing the larger issues that have been prominent in the modern literature and cases on fingerprint identification — issues such as the measurement of error rates in fingerprint examinations, the role of statistical and intuitive methods in drawing inferences about identity, the scientific foundations of the discipline, and the ethical and legal considerations in reporting and testifying about laboratory findings.
One suggestion in the report regarding the last item is that the fingerprint community needs to be open to rethinking its historical postulates about what “identification” means and should adopt more cautious ways of describing the implications of similarities in latent and exemplar prints. Thus, a summary paragraph notes that
Reference
Expert Working Group on Human Factors in Latent Print Analysis, NIST, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach: The Report of the Expert Working Group on Human Factors in Latent Print Analysis (David H. Kaye ed. 2012), available at http://www.nist.gov/customcf/get_pdf.cfm?pub_id=910745
The oversized working group included both “insiders” (fingerprint examiners and representatives of professional organizations) and “outsiders” (psychologists, statisticians, engineers, law professors, etc.). Like most expert groups charged with making scientific assessments and recommendations for best practices, the group did not conduct new research, but it reviewed and described a substantial body of existing work in the forensic sciences, cognitive science, human factors, and law.
The group was hardly unanimous on every issue, but it succeeded in addressing the larger issues that have been prominent in the modern literature and cases on fingerprint identification — issues such as the measurement of error rates in fingerprint examinations, the role of statistical and intuitive methods in drawing inferences about identity, the scientific foundations of the discipline, and the ethical and legal considerations in reporting and testifying about laboratory findings.
One suggestion in the report regarding the last item is that the fingerprint community needs to be open to rethinking its historical postulates about what “identification” means and should adopt more cautious ways of describing the implications of similarities in latent and exemplar prints. Thus, a summary paragraph notes that
[W]ays to describe the possible association include statements about the strength of the evidence (the likelihoods) or the posterior probability. With appropriate data and validated modeling, such statements could be quantitative . . . , but less precise qualitative descriptions of the strength of the evidence or the source probability also are possible. . . . Given the current state of scientific and professional knowledge, . . . it is best to avoid testimony based on the theory of global general uniqueness. [E]xaminers [should] not testify to an identification to the exclusion of all other individuals in the world, [and] other, more conservative methods for conveying the probative value of a match [are available]. . . . The Working Group did not reach a consensus on which of these alternatives to universal-individualization testimony is best.The alternatives listed in the report do not include statements like "it is a practical certainty that the prints are from the same finger." They do include the more radical suggestion that experts should avoid source attributions in favor of statements about "likelihoods." This a bit of statistical jargon that I won't take the time to explain here. The book contains a sample laboratory report that presents an example of the strength-of-the-evidence approach.
Reference
Expert Working Group on Human Factors in Latent Print Analysis, NIST, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach: The Report of the Expert Working Group on Human Factors in Latent Print Analysis (David H. Kaye ed. 2012), available at http://www.nist.gov/customcf/get_pdf.cfm?pub_id=910745
Friday, 24 February 2012
The Newest from the Ninth Circuit on Arrestee DNA Databases
As of today, the Ninth Circuit Court of Appeals has twice upheld the constitutionality of DNA collection before conviction (DNA-BC). The first opinion came in United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). There, the panel applied a totality-of-the-circumstances balancing test to uphold the federal arrestee law. However, the full court promptly agreed to rehear the case en banc (thus vacating the opinion in Pool).
At that point, another challenge to DNA-BC was pending. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009), was a class action brought to enjoin enforcement of the California Proposition that initiated DNA arrestee sampling in that state. Determining that this law was, on balance, constitutionally reasonable, District Judge Charles Breyer, denied the request for a preliminary injunction. Plaintiffs appealed this ruling.
With eleven Ninth Circuit judges stirring the pot in Pool, Haskell moved to the back burner. But then Pool pled guilty, and the en banc court dropped his case as moot. Pool, 659 F.3d 761 (9th Cir. 2011) (en banc). Hence, the Haskell panel returned to work.
Today the case boiled over with the release of the panel’s opinion. As in Pool, the court split 2-1 in favor of DNA-BC. The two judges in Haskell to side with the state were Milan D. Smith, Jr., and James Dale Todd, a senior district judge for the Western District of Kentucky. Judge William A. Fletcher wrote a sharp dissent. Judge Smith devoted much of his majority opinion to refuting Judge Fletcher’s dissent. As a preliminary matter, they disagreed over whether Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), a previous Ninth Circuit case not even involving a DNA database forced the court’s hand here. Judge Smith correctly wrote that “very broad dicta” in the case did not compel any particular result in Haskell.
With the path cleared, Judge Smith asked whether the “totality of the circumstances” were such that DNA-DB under California law was “reasonable” within the meaning of the Fourth Amendment. Judge Fletcher disputed the use of this amorphous standard. On this issue, neither opinion is convincing. Time after time, in case after case, the Supreme Court has repeated an important mantra—full fledged searches and seizures intended to produce evidence of criminal conduct are per se unreasonable, regardless of the other circumstances, when they are undertaken without a warrant and when they do not fall within a categorical exception to this warrant requirement. E.g., Kentucky v. King, 131 S.Ct. 1849 (2011); City of Ontario v. Quon, 130 S.Ct. 2619 (2010); Katz v. United States, 389 U.S. 347, 357 (1967). Therefore, it will not do to state, as Judge Smith blandly did, that totality-of-the-circumstances balancing is the norm in Fourth Amendment cases. To the contrary, it is an anomaly that has been used only in two Supreme Court cases (for searches involving probationers or parolees). Upholding DNA-BC therefore requires showing that the program falls within an established exception—or recognizing a new exception to accommodate the acquisition of fingerprints, photographs, and now, DNA profiles for use in databases. The former move is possible but takes considerable effort. The latter would be the more candid and convincing mode of analysis.
But just as the Haskell majority’s leap to totality balancing is largely unjustified [update of June 16, 2013: The Supreme Court in Maryland v. King made an attempt to justify such balancing and used it to uphold a system of routine DNA sampling before conviction], the dissent’s theory of why DNA-BC is unconstitutional is groundless. According to dissenting Judge Fletcher, the Supreme Court held in Hayes v. Florida, 470 U.S. 811 (1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that identifying information (fingerprints, in those cases) “may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the [information] would help solve the crime for which he was taken into custody.” This characterization overlooks the most critical facts in the cases and the explicit reasoning of the opinions. Justice White’s majority opinion in Hayes could not have been clearer in explaining that the cases simply hold “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” 470 U.S. at 815. That the fingerprints were used for investigative purposes and not just to establish the true identities of the arrested suspects had nothing to do with the constitutional infirmity. “[T]he fingerprints ... were the inadmissible fruits of an illegal detention” (id. at 813) because “the police at that time were without probable cause for an arrest, there was no warrant, and [the suspects] had not consented to being taken to the station house.” Id. at 313-14. Not a single Justice dissented from this understanding of the issue. Yet, Judge Fletcher transformed the simple and unremarkable result in Hayes and Davis into a condemnation of all forms of DNA-BC. Judge Smith was kind to call this aggressive reading of the cases a “novel interpretation.”
The Haskell court also split on the outcome of the balancing test. The majority was quick to accept the state’s litany of interests in DNA-BC as weighty, whereas the dissent demanded more rigorous proof. Conversely, the dissent was quick to accept nonscientific speculations about the dangers of DNA profiles and the risks of misuse of retained DNA samples, whereas the majority was loath to invalidate today’s laws on the grounds that they might be misused or changed.
Further developments are likely in the Ninth Circuit. Of the six judges to vote in Haskell and Pool (three per case), two of them came from outside the circuit and sat by designation. Counting only the Ninth Circuit noses, the vote to uphold DNA-DB has been 2-2 — not exactly a stable alignment. Obviously, there is considerable turmoil among the Ninth Circuit judges, and an en banc order in Haskell seems probable.
Acknowledgments: Thanks to Jen Wagner for sending me a copy of today’s slip opinion in Haskell.
Cross-posted from The Double Helix Law Blog.
At that point, another challenge to DNA-BC was pending. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009), was a class action brought to enjoin enforcement of the California Proposition that initiated DNA arrestee sampling in that state. Determining that this law was, on balance, constitutionally reasonable, District Judge Charles Breyer, denied the request for a preliminary injunction. Plaintiffs appealed this ruling.
With eleven Ninth Circuit judges stirring the pot in Pool, Haskell moved to the back burner. But then Pool pled guilty, and the en banc court dropped his case as moot. Pool, 659 F.3d 761 (9th Cir. 2011) (en banc). Hence, the Haskell panel returned to work.
Today the case boiled over with the release of the panel’s opinion. As in Pool, the court split 2-1 in favor of DNA-BC. The two judges in Haskell to side with the state were Milan D. Smith, Jr., and James Dale Todd, a senior district judge for the Western District of Kentucky. Judge William A. Fletcher wrote a sharp dissent. Judge Smith devoted much of his majority opinion to refuting Judge Fletcher’s dissent. As a preliminary matter, they disagreed over whether Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), a previous Ninth Circuit case not even involving a DNA database forced the court’s hand here. Judge Smith correctly wrote that “very broad dicta” in the case did not compel any particular result in Haskell.
With the path cleared, Judge Smith asked whether the “totality of the circumstances” were such that DNA-DB under California law was “reasonable” within the meaning of the Fourth Amendment. Judge Fletcher disputed the use of this amorphous standard. On this issue, neither opinion is convincing. Time after time, in case after case, the Supreme Court has repeated an important mantra—full fledged searches and seizures intended to produce evidence of criminal conduct are per se unreasonable, regardless of the other circumstances, when they are undertaken without a warrant and when they do not fall within a categorical exception to this warrant requirement. E.g., Kentucky v. King, 131 S.Ct. 1849 (2011); City of Ontario v. Quon, 130 S.Ct. 2619 (2010); Katz v. United States, 389 U.S. 347, 357 (1967). Therefore, it will not do to state, as Judge Smith blandly did, that totality-of-the-circumstances balancing is the norm in Fourth Amendment cases. To the contrary, it is an anomaly that has been used only in two Supreme Court cases (for searches involving probationers or parolees). Upholding DNA-BC therefore requires showing that the program falls within an established exception—or recognizing a new exception to accommodate the acquisition of fingerprints, photographs, and now, DNA profiles for use in databases. The former move is possible but takes considerable effort. The latter would be the more candid and convincing mode of analysis.
But just as the Haskell majority’s leap to totality balancing is largely unjustified [update of June 16, 2013: The Supreme Court in Maryland v. King made an attempt to justify such balancing and used it to uphold a system of routine DNA sampling before conviction], the dissent’s theory of why DNA-BC is unconstitutional is groundless. According to dissenting Judge Fletcher, the Supreme Court held in Hayes v. Florida, 470 U.S. 811 (1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that identifying information (fingerprints, in those cases) “may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the [information] would help solve the crime for which he was taken into custody.” This characterization overlooks the most critical facts in the cases and the explicit reasoning of the opinions. Justice White’s majority opinion in Hayes could not have been clearer in explaining that the cases simply hold “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” 470 U.S. at 815. That the fingerprints were used for investigative purposes and not just to establish the true identities of the arrested suspects had nothing to do with the constitutional infirmity. “[T]he fingerprints ... were the inadmissible fruits of an illegal detention” (id. at 813) because “the police at that time were without probable cause for an arrest, there was no warrant, and [the suspects] had not consented to being taken to the station house.” Id. at 313-14. Not a single Justice dissented from this understanding of the issue. Yet, Judge Fletcher transformed the simple and unremarkable result in Hayes and Davis into a condemnation of all forms of DNA-BC. Judge Smith was kind to call this aggressive reading of the cases a “novel interpretation.”
The Haskell court also split on the outcome of the balancing test. The majority was quick to accept the state’s litany of interests in DNA-BC as weighty, whereas the dissent demanded more rigorous proof. Conversely, the dissent was quick to accept nonscientific speculations about the dangers of DNA profiles and the risks of misuse of retained DNA samples, whereas the majority was loath to invalidate today’s laws on the grounds that they might be misused or changed.
Further developments are likely in the Ninth Circuit. Of the six judges to vote in Haskell and Pool (three per case), two of them came from outside the circuit and sat by designation. Counting only the Ninth Circuit noses, the vote to uphold DNA-DB has been 2-2 — not exactly a stable alignment. Obviously, there is considerable turmoil among the Ninth Circuit judges, and an en banc order in Haskell seems probable.
Acknowledgments: Thanks to Jen Wagner for sending me a copy of today’s slip opinion in Haskell.
Cross-posted from The Double Helix Law Blog.
Saturday, 18 February 2012
Government-sponsored Report on Latent Fingerprint Work in Criminal Investigation and Prosecution
From NIST's Office of Law Enforcement Standards (OLES), as posted on February 17, 2012: “Expert Working Group Reduces Human Error Analyzing Fingerprints.” Sounds great. So how has the group succeeded in reducing these errors? Alas, clicking on the link reveals that, as yet, the group has not prevented a single error, human or inhuman. But NIST has released a long overdue report prepared by an expert working group that it assembled and funded for an extended period.
The final 234-page report from the committee of 34 experts contains 34 recommendations to improve latent print examination in criminal investigations and in presentations of the findings to police, lawyers, judges, and juries. The committee believes that implementation of these recommendations eventually could reduce the incidence of errors in latent print work and in the understanding of the results. The recommendations are a kind of wish list with entries that range from studying how to test the vision of fingerprint analysts; to educating examiners “in the scientific method” and in probabilistic and statistical thinking; to creating “a culture” in which examiners can confess honest error without fear of punishment; to monitoring the day-to-day work and courtroom testimony; and to certification for all analysts and accreditation for all laboratories.
Lawyers will be interested in the admonishments in the report about insulating examiners from unnecessary extraneous information; contemporaneously documenting the thought processes of examiners; making complete reports available; and curbing exaggerated claims of conclusive identifications. Concluding that existing data does not permit reasonably accurate estimates of error rates in real-life fingerprint identifications, for example, the report insists that an “expert should not state that errors are inherently impossible or that a method inherently has a zero error rate.” Likewise, the report states that “latent print examiners should not report or testify, directly or by implication, to a source attribution to the exclusion of all others in the world.” However, the group of latent print examiners, forensic laboratory scientists and managers, psychologists, engineers, statisticians, and lawyers, was unable to agree on what statements should replace such well entrenched testimony.
Given these tensions and ambitions, will NIST's premature assertion that “Expert Working Group Reduces Human Error Analyzing Fingerprints” come true? One can only hope for the best.
--DH Kaye, Feb. 18, 2012
Irony: The NIST statement accompanying this report on error and human factors has errors of its own. The actual publication date was February 17, not February 9. Authors’ names are not always spelled correctly, and support staff are listed as authors. No doubt, this says something about human fallibility if not human factors.
Disclosure: The author of this note was a working group member and the editor of the report described here. See Expert Working Group on Human Factors in Latent Print Analysis, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach, Feb. 2012.
The final 234-page report from the committee of 34 experts contains 34 recommendations to improve latent print examination in criminal investigations and in presentations of the findings to police, lawyers, judges, and juries. The committee believes that implementation of these recommendations eventually could reduce the incidence of errors in latent print work and in the understanding of the results. The recommendations are a kind of wish list with entries that range from studying how to test the vision of fingerprint analysts; to educating examiners “in the scientific method” and in probabilistic and statistical thinking; to creating “a culture” in which examiners can confess honest error without fear of punishment; to monitoring the day-to-day work and courtroom testimony; and to certification for all analysts and accreditation for all laboratories.
Lawyers will be interested in the admonishments in the report about insulating examiners from unnecessary extraneous information; contemporaneously documenting the thought processes of examiners; making complete reports available; and curbing exaggerated claims of conclusive identifications. Concluding that existing data does not permit reasonably accurate estimates of error rates in real-life fingerprint identifications, for example, the report insists that an “expert should not state that errors are inherently impossible or that a method inherently has a zero error rate.” Likewise, the report states that “latent print examiners should not report or testify, directly or by implication, to a source attribution to the exclusion of all others in the world.” However, the group of latent print examiners, forensic laboratory scientists and managers, psychologists, engineers, statisticians, and lawyers, was unable to agree on what statements should replace such well entrenched testimony.
Given these tensions and ambitions, will NIST's premature assertion that “Expert Working Group Reduces Human Error Analyzing Fingerprints” come true? One can only hope for the best.
--DH Kaye, Feb. 18, 2012
Irony: The NIST statement accompanying this report on error and human factors has errors of its own. The actual publication date was February 17, not February 9. Authors’ names are not always spelled correctly, and support staff are listed as authors. No doubt, this says something about human fallibility if not human factors.
Disclosure: The author of this note was a working group member and the editor of the report described here. See Expert Working Group on Human Factors in Latent Print Analysis, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach, Feb. 2012.
Sunday, 5 February 2012
Genetic Geneology: Is Sarah Yarborough’s Killer a Mayflower Descendant?
In The Double Helix and the Law of Evidence, I remarked that “[s]urname prediction is a concept that has yet to be implemented in forensic science . . . ” (1, p. 211). Now, cold-case detectives investigating the 1991 rape and strangulation of a 16-year old girl in Seattle are looking for “a distant relative of Edward and Samuel Fuller, who crossed the Atlantic on the Mayflower in 1620 [and who] might even share their last name” (2).
Sarah Yarborough left home to take part in a dance-team competition one morning in December. She never returned. Six people had seen a man in his 20s, with shoulder-length blond hair, a trench coat and dark pants speaking with her or leaving a brushy area where her body was found. In the succeeding months, more than 3,000 tips poured in. DNA analysis excluded some suspects, but trawling offender DNA databases for an exact match produced no leads, and the killer remains unidentified.
Yet, other databases can be searched. “Genetic geneology databases” (3, p. 384) that use the paternally inherited Y-STR haplotypes that are of interest in anthropology are growing in popularity. Indeed, some are available on the web. At the suggestion of a scientist at the state crime laboratory, police turned to Identifinders of Huntington Beach, California. Presumably, the firm combed through the online databases to arrive at its conclusion that “there's a good chance the killer's last name is or was Fuller” (4) because “the killer is a descendant of Robert Fuller, who arrived in Salem, Mass., in 1630. Fuller was not himself on the Mayflower, but he was related to three passengers: Edward Fuller, as well as Edward Fuller's brother, Samuel, and 12-year-old son” (2).
The value (and accuracy) of this surmise remains to be seen. None of the tips the police received involve a Fuller (2), and many Fullers had nothing to do with that historic voyage. Moreover, the Mayflower Fullers may be multitudinous. After all, “there are tens of millions of people descended from the 102 passengers and about 25 crew members who arrived on the Mayflower . . .” (2).
Acknowledgment: Thanks to Gene Johnson for telling me about the case.
References
Sarah Yarborough left home to take part in a dance-team competition one morning in December. She never returned. Six people had seen a man in his 20s, with shoulder-length blond hair, a trench coat and dark pants speaking with her or leaving a brushy area where her body was found. In the succeeding months, more than 3,000 tips poured in. DNA analysis excluded some suspects, but trawling offender DNA databases for an exact match produced no leads, and the killer remains unidentified.
Yet, other databases can be searched. “Genetic geneology databases” (3, p. 384) that use the paternally inherited Y-STR haplotypes that are of interest in anthropology are growing in popularity. Indeed, some are available on the web. At the suggestion of a scientist at the state crime laboratory, police turned to Identifinders of Huntington Beach, California. Presumably, the firm combed through the online databases to arrive at its conclusion that “there's a good chance the killer's last name is or was Fuller” (4) because “the killer is a descendant of Robert Fuller, who arrived in Salem, Mass., in 1630. Fuller was not himself on the Mayflower, but he was related to three passengers: Edward Fuller, as well as Edward Fuller's brother, Samuel, and 12-year-old son” (2).
The value (and accuracy) of this surmise remains to be seen. None of the tips the police received involve a Fuller (2), and many Fullers had nothing to do with that historic voyage. Moreover, the Mayflower Fullers may be multitudinous. After all, “there are tens of millions of people descended from the 102 passengers and about 25 crew members who arrived on the Mayflower . . .” (2).
Acknowledgment: Thanks to Gene Johnson for telling me about the case.
References
- David H. Kaye, The Double Helix and the Law of Evidence (2010).
- Gene Johnson, Awkward Twist over DNA Link in Teen's Slaying, Seattle Times, Jan. 12, 2012
- John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology (2011).
- Gene Johnson, Mayflower Relative Sought in '91 Wash. Killing, Seattle Post-Intelligencer, Jan. 11, 2012
Cross-posted from The Double Law Blog
Thursday, 5 January 2012
When Is DNA Collection a "Search or Seizure"?
In a brief opinion, the Supreme Court of Louisiana invoked the constitutionality of routine DNA sampling of custodial arrestees to uphold an order for a cheek swab to an indicted defendant. The case presents an unusual set of facts in that investigators were seeking, for no apparent reason, what the court assumed to be a second sample from the defendant.
After "a shooting in which three individuals were killed" and another wounded, "a witness informed [police] that he observed [Charles] Franklin and Dwayne Johnson changing out of their clothing and into clothing that was black." Franklin and Johnson then were arrested. At their preliminary examination, a detective "testified that, pursuant to a search warrant for a nearby residence, he recovered clothing similar to what Mr. Franklin was observed wearing and subsequently removing on the night of the offense." State v. Franklin, No. 2010-K-0564 (La. Ct. App. Aug. 11, 2010), rev'd, No. 2011-1909 (La. Dec. 16, 2011),
Rather than apply for a search warrant for a DNA sample, the state obtained a court order for Franklin to give a buccal swab. Id. Before the order could be enforced, however, the Court of Appeals held that this procedure constituted an unreasonable search or seizure because
This observation is puzzling. If the state already had a sample for the state databank, why demand that defendant provide another before it had even recovered and analyzed any DNA from the clothing? More fundamentally, the court failed to articulate clearly why DNA sampling "as a routine incident of booking" supported later warrantless DNA sampling. Merely comparing a recorded profile to one developed from the clothes would not rise to the level of a "search" requiring constitutional justification (see DNA Database Trawls and the Definition of a Search in Boroian v. Mueller), but this fact does not explain why the state can compel a suspect to open his mouth to a scraping of cells from the inside of his cheek. Does the intrusion into the mouth fall short of a search in Louisiana?
The Louisiana Supreme Court came close to taking this position. It expressed some skepticism of the notion that
In any event, both probable cause and reasonable suspicion involve probabilities, not certainties. The Franklin court is correct in that regard. But this tells us next to nothing about the level of probability that is required to justify a search under either standard. There is no obvious reason that investigators cannot analyze clothing from the vicinity of a crime before demanding a DNA sample from a suspect.
In this case, however, "the state refined its motion by presenting ... the trial judge with a crime lab report ... indicating that the evidence, clothing taken from defendant's residence in a prior search, contains blood and a single hair strand with follicle, which may be tested and which may yield a DNA profile ... ." Still, "may yield a DNA profile" is a rather weak promise from the laboratory. Any item of clothing "may yield" a profile.
References
Acknowledgments
After "a shooting in which three individuals were killed" and another wounded, "a witness informed [police] that he observed [Charles] Franklin and Dwayne Johnson changing out of their clothing and into clothing that was black." Franklin and Johnson then were arrested. At their preliminary examination, a detective "testified that, pursuant to a search warrant for a nearby residence, he recovered clothing similar to what Mr. Franklin was observed wearing and subsequently removing on the night of the offense." State v. Franklin, No. 2010-K-0564 (La. Ct. App. Aug. 11, 2010), rev'd, No. 2011-1909 (La. Dec. 16, 2011),
Rather than apply for a search warrant for a DNA sample, the state obtained a court order for Franklin to give a buccal swab. Id. Before the order could be enforced, however, the Court of Appeals held that this procedure constituted an unreasonable search or seizure because
The State has not developed a DNA profile from the seized clothing; therefore, the State has not established that the DNA to be seized from Mr. Franklin, standing alone, could 'constitute evidence tending to prove the commission of an offense.The Louisiana Supreme Court reversed. At first, it seemed to maintain that judicial review and the equivalent of a warrant were superfluous. Louisiana was the first state to authorize DNA sampling as part of a custodial arrest, and the court was willing to "presume that the Louisiana State Police Crime Laboratory already possesses a sample of defendant's DNA to which its CODIS DNA section has access for testing as part of a cooperative effort between state and federal authorities to develop a comprehensive identification data base."
This observation is puzzling. If the state already had a sample for the state databank, why demand that defendant provide another before it had even recovered and analyzed any DNA from the clothing? More fundamentally, the court failed to articulate clearly why DNA sampling "as a routine incident of booking" supported later warrantless DNA sampling. Merely comparing a recorded profile to one developed from the clothes would not rise to the level of a "search" requiring constitutional justification (see DNA Database Trawls and the Definition of a Search in Boroian v. Mueller), but this fact does not explain why the state can compel a suspect to open his mouth to a scraping of cells from the inside of his cheek. Does the intrusion into the mouth fall short of a search in Louisiana?
The Louisiana Supreme Court came close to taking this position. It expressed some skepticism of the notion that
a warrant is required to take another buccal sample from defendant for purposes of testing by the Crime Lab's Forensic DNA Section as part of the effort to solve a particular crime . . . because collection of the sample, although minimally intrusive, nevertheless constitutes a search."This skepticism seems difficult to square with Cupp v. Murphy, 412 U.S. 291 (1973). There, the U.S. Supreme Court described the extraction of material beneath a suspect's thumbnail to be a "'severe, though brief, intrusion upon cherished personal security' that is subject to constitutional scrutiny." The Louisiana court seemed to recognize the problem (although it did not mention Cupp), for it assumed arguendo that the cheek swabbing "constitutes a search." On that assumption, the court reasoned that
the state ... need only show a "fair probability" the sample may yield evidence to establish the requisite probable cause, not that the search will produce evidence probative one way or another on the question of guilt. Illinois v. Gates, 462 U.S. 213, 231 (1983) ("'The process does not deal with hard certainties, but with probabilities.'") ... . Given probable cause that defendant participated in the charged crimes, it suffices that the state has established that its evidence, removed from defendant's residence, contains recoverable biological samples that may, but not necessarily will, provide a DNA profile useful for forensic purposes.This part of the opinion poses another puzzle or two. Why demand probable cause? In Cupp, Justice Stewart was quoting from Terry v. Ohio, 392 U.S. 1 (1968), to show that Fourth Amendment protections came into play. But the invasion in Terry was a stop-and-frisk rather than a prolonged arrest or a thorough search. The Court held the fourth amendment applied to the lesser invasion, but it was unwilling to demand probable cause. Instead, it countenanced pat downs on the basis of reasonable suspicion. Likewise, "nontestimonial orders" for blood, hair, fingerprints, voice exemplars, and the like, do not require probable cause.
In any event, both probable cause and reasonable suspicion involve probabilities, not certainties. The Franklin court is correct in that regard. But this tells us next to nothing about the level of probability that is required to justify a search under either standard. There is no obvious reason that investigators cannot analyze clothing from the vicinity of a crime before demanding a DNA sample from a suspect.
In this case, however, "the state refined its motion by presenting ... the trial judge with a crime lab report ... indicating that the evidence, clothing taken from defendant's residence in a prior search, contains blood and a single hair strand with follicle, which may be tested and which may yield a DNA profile ... ." Still, "may yield a DNA profile" is a rather weak promise from the laboratory. Any item of clothing "may yield" a profile.
References
- State v. Franklin, No. 2011-1909, 2011 WL 6312400 (La. Dec. 16, 2011)
- Cupp v. Murphy, 412 U.S. 291 (1973)
- Terry v. Ohio, 392 U.S. 1 (1968)
- David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Mueller, 97 Va. L. Rev. in Brief 41 (2011)
Acknowledgments
- Thanks to Lisa Hurst for calling the opinion to my attention.
- Cross-posted from The Double Helix Law Blog.
Monday, 19 December 2011
Finegan's Wake: A Partial DNA Match in Rhode Island
A Rhode Island newspaper reports that "[t]he Cranston Police Department has arrested 49-year-old David Finegan, of no permanent address, for the burglary and sexual assault of an 81-year-old woman." [1] Police "collected [DNA] at the crime scene on May 2." On June 10, the Rhode Island Department of Health reported that it had a DNA profile from the crime with which to query an offender database. The Rhode Island laboratory did not use software designed for kinship searching, but on July 8, the department advised detectives that it had found a partial DNA match to a female inmate.
The article does not speculate on why it took a month to complete a routine computer search and report the results.Was it because of legal concerns? Was the partial match trawl intentional, or was the discovery inadvertent? Whichever it was, the detectives turned their attention to five male siblings. They discovered that one of them, David Finegan, was "in close proximity . . . on the night of the incident."
Why this roundabout method of identifying Finegan? He was on parole in July. Was the underlying offense not one that triggered entry into the DNA database? Was there a backlog in entering offender profiles into the database? Whatever the explanation, Finegan had the misfortune of being picked up on July 14 on a parole violation and held for the weekend. Detectives quickly obtained a search warrant and took a sample of DNA from him before he made bail and dropped out of sight. A week later, they learned that it matched the crime-scene DNA.
Pursuing an anonymous tip, police found and arrested Finegan in Providence. He "is being charged with burglary and first-degree sexual assault." Interestingly, he has an arrest record (including domestic assault, felony DWI, resisting arrest and other assaults) dating back to 1991. A bill that would expand the state database to include arrestees is before House and Senate committees in Rhode Island.
Reference
1. Joe Kernan, Arrest Made in Rape of Elderly Woman, Cranston Herald, Dec. 19, 2011
Acknowledgment
Thanks to Frederick Bieber for informing me of the Cranston Herald article.
The article does not speculate on why it took a month to complete a routine computer search and report the results.Was it because of legal concerns? Was the partial match trawl intentional, or was the discovery inadvertent? Whichever it was, the detectives turned their attention to five male siblings. They discovered that one of them, David Finegan, was "in close proximity . . . on the night of the incident."
Why this roundabout method of identifying Finegan? He was on parole in July. Was the underlying offense not one that triggered entry into the DNA database? Was there a backlog in entering offender profiles into the database? Whatever the explanation, Finegan had the misfortune of being picked up on July 14 on a parole violation and held for the weekend. Detectives quickly obtained a search warrant and took a sample of DNA from him before he made bail and dropped out of sight. A week later, they learned that it matched the crime-scene DNA.
Pursuing an anonymous tip, police found and arrested Finegan in Providence. He "is being charged with burglary and first-degree sexual assault." Interestingly, he has an arrest record (including domestic assault, felony DWI, resisting arrest and other assaults) dating back to 1991. A bill that would expand the state database to include arrestees is before House and Senate committees in Rhode Island.
Reference
1. Joe Kernan, Arrest Made in Rape of Elderly Woman, Cranston Herald, Dec. 19, 2011
Acknowledgment
Thanks to Frederick Bieber for informing me of the Cranston Herald article.
Cross-posted from The Double Helix Law Blog
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