simon a coyle - witness identification

Witnessing Identification: Latent Fingerprinting Evidence and Expert KnowledgeAuthor(s): Simon A. ColeSource: Social Studies of Science, Vol. 28, No. 5/6, Special Issue on Contested Identities:Science, Law and Forensic Practice (Oct. - Dec., 1998), pp. 687-712Published by: Sage Publications, Ltd.Stable URL: http://www.jstor.org/stable/285514Accessed: 18/11/2010 06:00

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S S S Special Issue: Contested Identities

ABSTRACT The technique of latent fingerprint identification enjoys a remarkable degree of credibility, even in the adversarial climate of the Anglo-American criminal trial. Latent fingerprint examiners (LFPEs) are treated with a high degree of deference in court proceedings. I trace this to the historical process by which latent fingerprint examiners constructed rules of method and practice which allowed them to present fingerprint identifications as matters of fact. First, LFPEs maintained professional jurisdiction over the interpretation of fingerprint evidence, even while suggesting that the evidence was 'speaking for itself'. Second, LFPEs devised rules of method and practice which encouraged unanimity and consistency within the profession. Finally, LFPEs managed cases of error by attributing failure to individual practitioners rather than to the method. I conclude that LFPEs offer a highly idiosyncratic model of scientific evidence, one which new forensic identification techniques, such as DNA typing, will be able to emulate only with difficulty.

Witnessing Identification:

Latent Fingerprinting Evidence and Expert Knowledge

Simon A. Cole

On 16 February 1912, the State of Illinois hanged a man named Thomas Jennings, who had been convicted for the murder of Clarence Hiller in Chicago. Like the recent 'trial of the century', People v. Simpson, the Jennings case, which was tried in 1910, represented not only the trial of an individual, but also a public trial of a novel forensic identification technique. Just as Simpson was linked to the crime scene by DNA profiling, a relatively new forensic technique called 'fingerprinting' linked Jennings to finger impressions found in the recently-dried paint on Hiller's porch railing.

Although we should be cautious about drawing facile parallels between very different circumstances and historical eras, the two cases do bear some superficial similarities. Both Jennings and Simpson, despite the ob- vious class differences between them (Jennings was an ex-convict 'labour- ing man', Simpson a millionaire celebrity), were African-American men on trial for murder in what is widely perceived, despite intervening progress in civil rights, as a justice system biased against them. In both cases, the technique was new enough to merit an extended debate over its validity as part of the trial. In neither case, however, did the forensic identification

Social Studies of Science 28/5-6(October-December 1998) 687-712 ?O SSS and SAGE Publications (London, Thousand Oaks, CA and New Delhi) [0306-3 127(1998 10/12)28:5/6;687-7 12;007021]

688 Social Studies of Science 28/5-6

stand alone; rather, it supplemented circumstantial evidence. The circumstances surrounding the Simpson trial are familiar enough. Jennings, like Simpson, had to explain bloodstained clothing and what might have been defensive wounds, when he was apprehended three-quarters of a mile from the crime scene, 13 minutes after the shooting. The police also found a .38 calibre revolver in Jennings's pocket, containing cartridges which matched those found at the crime scene, and bearing chemical traces of recent firing. Finally, Jennings was vaguely identified by four other witnesses as having broken into houses neighbouring Hiller's on the same night.

Because of all the circumstantial evidence, neither ennings nor Simpson could be regarded as a true 'test case' of the relevant forensic identification technique. Nevertheless, each case served as a milestone in the history of forensic science: Jennings, a legal landmark, became the first American case upholding the admissibility of expert testimony regarding fingerprint evidence; Simpson, a cultural touchstone, became the most visible display of forensic DNA evidence in American popular culture - even if, as now seems likely, the trial will be remembered more for what it said about race in the American justice system than for what it said about science.'

Proponents of genetic identification make no secret of their aspirations to follow in the footsteps of conventional fingerprinting, even going so far, in early years, of adopting its name: 'DNA fingerprinting'.2 The validity of the analogy, however, is a matter of intense dispute. In the days leading up to the start of the Simpson trial, Bruce Budowle, an FBI forensic scientist, and Eric Lander, an erstwhile critic of genetic identification, teamed up in an article in Nature to declare that the problems with DNA typing had been resolved. Budowle and Lander repeated the common assertion that 'Forensic DNA typing ... represents perhaps the greatest advance in forensic science since the development of ordinary fingerprints in 1892, and is soundly rooted in molecular biology' - a transparent attempt to position DNA typing as the high-tech descendent of fingerprinting.3 Dur- ing the trial, on the other hand, the Simpson defense tried to undermine this genealogy, insisting that 'blood specks are not fingerprints'.4

Whether DNA typing is really 'like' fingerprinting or not is such a highly contested issue because fingerprint evidence is uniquely powerful in criminal trials. No forensic expert witness can more convincingly place a suspect at the scene of crime than the latent fingerprint examiner (LFPE). Juries have consistently shown themselves willing to convict on fingerprint evidence alone, and such convictions have been upheld by the courts.5 Defense attorneys are loath to expend scarce resources challenging fingerprint evidence.6 Other forensic experts, including DNA analysts, speak enviously of the 'absolute identifications' produced by fingerprinting.7 In science studies terms, fingerprint evidence has achieved 'closure': the reliability of the technique has been largely settled to the satisfaction of the relevant social groups (forensic scientists, the judiciary, even the defense bar). Fingerprinting, therefore, offers a model - to the public, jurors, judges, attorneys and even potential expert witnesses - of what a credible forensic identification might look like.

Contested Identities: Cole: Witnessing Identification 689

Closure within a scientific community is not unusual, but when scientific knowledge is thrust into the legal arena the grounds for contesta- tion tend to broaden. Recent social studies of science and the law have shown that legal processes tend to pry open 'closed' scientific questions.8 In the criminal law - where the burden of proof is greater and lives, rather than money, are at stake - the potential resistance to closure should be even greater. For a forensic identification technique, like fingerprinting or DNA typing, effective closure ought to be still more difficult since its task, individualization, is so delicate. LFPEs claim to link trace evidence to one and only one individual, excluding even those individuals whose fingerprints they have never seen. In this context, the successful closure surrounding fingerprint evidence is all the more remarkable, and demands an explanation. How LFPEs have managed to construct a forensic identification technique that is virtually impervious to challenge is a question that should tantalize forensic DNA analysts, who wish to follow in their footsteps, and sociologists of scientific knowledge alike.

While there are interesting cultural resonances between fingerprinting and genetic identification, in this paper I want to focus on the nitty-gritty of expert testimony, tracing the path fingerprinting followed to successful closure.9 Although my focus is on the USA, the closure of fingerprinting really occurred in global forensic and legal communities. I use Jennings as a rough analogue of Simpson: a trial in which fingerprinting was still relatively new and regarded with a healthy skepticism. I first show how latent fingerprint examiners (LFPEs) established their authority over fingerprint evidence. LFPEs, as we shall see, had a relatively easy time, in contrast to the myriad trials and tribulations, chronicled elsewhere in this Special Issue, which forensic DNA experts have endured. The principal reason for this, I will argue, is that early LFPEs deftly managed the visual image of the fingerprint, preserving its transparency for the lay eyes of the jury while simultaneously maintaining their exclusive authority as 'experts' over its interpretation.

Yet LFPEs' early success still does not explain why they have gone on to enjoy nearly a century of almost unchallenged authority in the courtroom. An examination of the work practices and professional organization of LFPEs in the aftermath of the Jennings trial shows that LFPEs built the science of fingerprint identification around the imperatives of courtroom testimony, constructing a science which encouraged unanimity of opinion and consistency between different practitioners. LFPEs devised an ethic of shared vision in which all practitioners saw the same thing.

Finally, I will discuss a recent case of purported misidentification in order to show how closure is maintained, even in the face of apparent error. The professional community of LFPEs defuses potentially damaging cases of misidentification by blaming the individual practitioner - in essence sacrificing the individual for the greater good. Thus misidentifica- tions are all attributed to incompetence or malevolence on the part of an individual, and the credibility of the method remains intact.


Visualizing Identity

How do LFPEs earn conviction(s)? In order to understand how LFPEs have managed to achieve closure as well as they have, it is necessary to examine their work practices, to ask how fingerprint identification is actually done. Fingerprint identification is a profoundly visual process. LFPEs see for a living. They spend a good part of their workday hunched over a magnifying glass. Their journals and professional meetings are filled with discussions of new ways to render visible what was previously invisible. Ninhydrin, silver nitrate, cyanoacrylate, ultraviolet light, fluorescent powders and lasers are all deployed to penetrate the veil of invisibility. But at the same time, fingerprint identification is also about talking. The testimony of an LFPE consists of showing the jury the similarity between a latent print (a trace of contact between the fingertip and some surface left at a crime scene and then developed by the examiner) and the inked fingerprint of the suspect, and of telling them that such similarity exists.

For courtroom presentations, LFPEs often prepare enlarged side- by-side displays of the two prints, called charts (Figure 1). 1 Usually, the LFPE labels corresponding points on the two images. These points, variously called points of identification, points of similarity, minutiae or ridge characteristics, are occurrences on the papillary ridges: abrupt ridge endings, bifurcations, dots (very short ridges), lakes (a ridge bifurcates, but the ridges immediately rejoin), and so on (Figure 2).11 The bottom image in Figure 1, the inked print, is a clear, detailed, high-resolution, high-contrast, direct representation of the defendant's finger, taken under what might be called 'laboratory conditions'. The top image, taken from the crime scene, is usually blurred, smeared, incomplete, indistinct and marred by artefacts of the transfer process. This image, which has been dusted or developed, lifted, photographed, reversed and enlarged, is several generations removed from the 'original' trace left at the crime scene. Despite all these mediations, it remains a representation of a fingerprint. The autoradiograph displayed to the jury as evidence of genetic identification, in contrast, represents the trace left on the crime-scene only indirectly (Figure 3).12

The jury sees two very different images. In the bottom print (see Figure 1), the 'points' are clear and distinct. The jury can verify that they are what the LFPE claims: ridge endings, bifurcations, and so on. In the top print, however, the entire image is obscure. The 'points' are barely recognizable, picked out through a haze of smears and blur. The skill of the LFPE lies in the seemingly magical ability to cause these stereoscopic images to merge in the jury's eyes into one, a unity which has one and only one common source.13 The jury is convinced by their own eyes. As one LFPE observed in the early days of the technique in 1921, once 'we can throw the picture of a fingerprint on a screen and can impress the jury that that condition exists only in that one single identical case, then it is almost unnecessary to make an argument. It is a picture of his guilt. The certainty and exactness of it impressed upon the jury brings home an appreciation


FIGURE 1 Fingerprint 'Chart' used in Deptford Murder Trial

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identhcatinonord c ents pos the m'.'4called Yet the juryndoes ott as

unlaidsed."Th LFPE' jobl isdo diPscipline the jrtobservtin fof ithelf jury toe

Despicoten "thet misetruty of 'words' dhespithe scidencadte law 'spa share

itself" '. 7 But again, fingerprints do not speak unaided so much as LFPEs speak for them. It is the LFPE's testimony to the ident that is in evidence, not the fingerprints themselves. These paradoxes leave LFPEs in a curious


FIGURE 2 Ridge Characteristics

RIDGE CHARACTERISTICS.

R1ELGE RNL6NDIVG.

BIFURCAfT(ON.

3 S|L KLAKE.

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A______ _________ 0 Ob>tOT or 1SLAND.

_________ SPUR.

7 I ~CR OSSQVERR. Y r..

Not all LFPEs categorize characteristics the same way. For instance, a 'lake' might also be construed as two 'bifurcations'.

Source: see note 11. Reproduced with permission of John E. Berry.

position: they testify, as experts, to an ident, which they also maintain is clearly visible, even to lay observers.

The very relevance of fingerprint charts has been left curiously un- resolved. Although charts indisputably play a vital role in putting the evidence before the jury, some LFPEs dismiss them as an irrelevant distraction from the 'real' evidence, the testimony of the LFPE. Some agencies do not even chart the prints from the case at hand, but present instead a generic chart of any two matching fingerprints.'8 Fingerprint evidence is thus simultaneously visual and oral: this synesthesia actually enhances the credibility of the evidence, rather than undermining either the visual exhibits or the expert utterances.19

Somewhere in the hallucinatory middle ground between the transparent bottom image and the opaque top one, between visual spectacle and expert oral testimony, between what is readily apparent and what is visible only to the trained eye, lies the fingerprint identification, the confident assertion that two different images can only have come from the same source. My concern is with how LFPEs manage to create a realm of certainty in this liminal space, between the idealized laboratory image of the inked fingerprint and the more prosaic crime-scene print, so pre- dictably mediated by the mundane exigencies of the world outside the


FIGURE 3 Autoradiograph produced by GeneLex Corporation

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Early Trials

There have been 'fingerprint experts' - individuals who claim special knowledge about the analysis of fingerprints - for as long as fingerprints have been used as legal evidence.20 But these self-professed 'experts' did not always have exclusive domain over the interpretation of fingerprint evidence. In one early robbery-murder case in colonial Bengal in 1898, the judge and assessors had performed the fingerprint comparison themselves, since an expert was not available.

The Judge recorded that, although he had no personal difficulty as a layman in finding complete similarity in the finger-impressions of [the defendant] with those on the almanac, it took him 'several hours' to explain matters to the Assessors and obtain their acquiescence in his opinion!2'

What happens if other actors are able to interpret fingerprint evidence with an authority equal to that of the expert? The hazards were illustrated early on by Emperor v. Abdul Hamid, a landmark 1905 impersonation case in India, where the sufficiency of fingerprint evidence to prove identity, 'where it is proved by competent expert testimony', had been established a year earlier.22 Despite the testimony of a 'fingerprint expert', the jury acquitted the defendant. Upon questioning by the trial judge, it was found that the jury had not accepted the opinion of the expert. Finding this verdict 'perverse', the judge referred the case to a higher court. The appeals court, however, sided with the jury. But even more ominously, the justices fancied themselves just as competent as the expert at comparing the two prints. Thus, one justice reported having 'myself subjected the impressions to a careful study both with the naked eye and a magnifying glass'. Based on his own observations, the justice found himself 'unable to say more, than that in some respects a distinct similarity can be traced. Under these circumstances', he concluded, 'I should hesitate to say that the jury was wrong in not accepting the evidence of the expert'. The justice attributed no superiority of vision to the expert. Instead, he assumed that similarities which were 'far from clear' to him must also be indistinct to the expert.23

A second justice, meanwhile, conceded that 'the classification of finger impressions is a science requiring study', and that 'it may require an expert in the first instance to say whether any two finger impressions are identical. Yet', he cautioned, 'the reasons which guide him to this conclusion are such as may be weighed by any intelligent person with good power of eyesight .... I have examined these impressions for myself with the aid of a magnifying glass', he went on to say, 'and endeavoured to test the sub- inspector's reasons. Considering the difficulty I have in perceiving the marks, I can not say that the jury were wrong in declining to regard him as

'24 an expert'. In this case, we see the danger of 'jurisdictional' anarchy, when different groups of actors share the authority to interpret fingerprint evidence.25

In a contemporaneous trial, which was held in Britain the same year, fingerprint evidence was indeed treated as the exclusive domain of expert witnesses, but another threat to the LFPE appeared: the defense expert.


Rex v. Stratton, the so-called 'Deptford Murder Trial' of the brothers Alfred and Albert Stratton, fell more closely within the familiar 20th-century Anglo-American model of scientific evidence: prosecution and defense offered up duelling experts, who drew opposite conclusions from the same evidence. Arguing for the prosecution was Inspector Charles S. Collins, one of Scotland Yard's leading 'fingerprint men'. Arguing for the defense was John Garson, the 'scientific man' who had run the Yard's identification bureau during the 1890s, before the introduction of fingerprinting.26

Collins testified that a bloody fingerprint found on a cash box at the crime scene matched the inked fingerprint of Alfred Stratton. Garson adopted a strategy which would be familiar to the Simpson defense team: he conceded the efficacy of the forensic technique in theory, while imputing sloppy practice to the forensic technicians in this particular case. Garson testified that fingerprinting ...

... was a splendid means of identification when properly used, but that it required careful use, that he had no hesitation in saying that the way in which it was being used by the police was just that which would bring it into disrepute.27

How effective this strategy might have been is not known since, in a scandalous twist worthy of the Simpson trial itself, the prosecution suddenly disclosed that Garson had offered his expert services to both sides. This reportedly had the effect of immediately discrediting Garson's testimony.28

American Trials

Five fingerprint examiners testified as expert witnesses in the Jennings trial: Michael Evans, the head of the Bureau of Identification of the Chicago Police Department; his son Edward, formerly of the Bureau of Identification, who took prints from the defendant upon an earlier arrest; another son, William, also of the Bureau of Identification, who made the identification of the Jennings print; Edward Foster, Chief of the Bureau of Identification of the Canada Dominion Police; and Mary Holland, head of Bureau of Identification for the US Navy.29 All five had been personally tutored in fingerprint identification by Detective John K. Ferrier of Scotland Yard at the St Louis World's Fair, where Ferrier had introduced the Henry system of fingerprint classification to the United States.30 Two witnesses, Foster and Holland, testified that they had subsequently travelled to London for further instruction, and that they had passed proficiency tests given them at the Yard. All five agreed that the print found in the recently- dried paint of the porch railing matched Jennings's prints - both those taken on previous arrests and those taken after his most recent arrest. Foster went so far as to portray the identity of the two prints as a matter of fact rather that interpretation:

Q: In comparing these fingers it is your opinion that the lines in those photographs were made by the same person?

A: I am positive. It is not my opinion."


In contrast to the Deptford trial, the defense did not dispatch its own expert against this formidable array. Instead, it tried to undermine the very notion of expertise in fingerprint analysis, along the lines taken in Abdul Hamid, contending that: 'The only benefit that the state can derive from the introduction of the fingerprints is for the jury to compare these fingerprints without the aid of the opinion of any expert'. The defense went on to favour the objective enhancement of a prosthetic visual aid over the subjective enhancement of expert interpretation, suggesting that 'the jury can take the magnifying glass and then come to a conclusion as to whether or not these photographs are identical'. Citing 'great progress in scientific research and inquiry upon these matters', the court overruled the defense's objections, concluding that 'it is now an established fact that ... the lines upon one's fingers are different from that of the fingers of any other human being' *32

The Supreme Court of Illinois agreed 'that the classification of finger print impressions and their method of identification is a science requiring study' and, therefore, that expert opinion was warranted. Reversing the reasoning followed in Abdul Hamid, the court wrote:

While some of the reasons which guide an expert to his conclusions are such as may be weighed by any intelligent person with good eyesight from such exhibits as we have here in the record, after being pointed out to him by one versed in the study of finger prints, the evidence in question does not come within the common experience of all men of common education in the ordinary walks of life, and therefore the court and jury were properly aided by witnesses of peculiar and special experience on this subject.33

In the legal literature, the principle was quickly understood: the expert was the safeguard that ensured the credibility of this powerful form of evidence - which did, after all, imply that one and only one person could be the source of a piece of trace evidence. 'From the scientific standpoint, therefore', one commentator noted, 'finger prints offer strong evidence of identity, though only properly available in trials through expert

testimony'.34 In general, however, the presentation of fingerprint evidence at the

Jennings trial was in many ways similar to that of DNA evidence in the Simpson trial: a parade of redundant experts; futile attempts to explicate the process of classifying fingerprint patterns, which probably only left the jury more confused; and strenuous attempts by the defense to cast doubt by severing the 'chain of custody', by which the latent fingerprint had been photographed at the crime scene, developed in the police darkroom, and the photograph delivered to the identification bureau for matching. It is not known what impact this testimony had on the jury, since so much other evidence was presented. A more spectacular demonstration of the power of fingerprint evidence would await a trial the following year in New York City.

In People v. Crispi (New York, 1911), fingerprint evidence - a latent

fingerprint found on a pane of glass which was removed during the course


of a burglary - was brought into greater relief since it served as the sole evidence against the defendant, Carlo Crispi, whose family provided him with an alibi. As in Jennings, the defense argued that expert interpretation was superfluous, that 'the exhibits speak for themselves and are the best evidence'. Although the participants were apparently unaware of the Jennings case, the court nevertheless recognized something in fingerprint evidence that required expert guidance. 'It would be an idle ceremony', the judge remarked, 'simply to put that before the jury without the expert enlightening them. If it were handwriting it would be different. This is new science'.35 Thus fingerprint evidence benefited from its position on the cusp between scientific and lay knowledge. Although handwriting 'experts' did exist, handwriting itself was (and still is) viewed as commonplace enough to merit informed inspection by the jury.36 A fingerprint, on the other hand, was commonplace enough to be readily understood by the jury, yet sufficiently esoteric to require expert interpretation.

At the trial, the New York Police Department's fingerprint expert, Lieutenant Joseph Faurot, performed a dramatic demonstration, which the court called an 'experiment'. Faurot took inked prints of twelve jurors and other courtroom personnel. He then left the room while an assistant developed a latent print left on a pane of glass (in order to simulate the conditions of the print in evidence) from one of the dozen. Faurot returned and correctly identified the latent print. The defense objected 'for the reason that it is impossible to produce this experiment under circumstances similar to the case at bar'. Whereas Faurot was proposing to identify a single latent fingerprint left deliberately on a clean surface, a photograph of the evidence showed a pane of glass containing nine different fingerprints, some blurred, some incomplete, some overlapping. The judge, therefore, instructed the test subject to simulate the original conditions by picking the glass up twice. The defense contended, un- successfully, that the experiment was still not a faithful replication of the crime.37

Through this demonstration, the expert witness turned the courtroom observers into witnesses themselves, who could attest to the validity of his method.38 Despite having established his expertise in such dramatic fashion, Faurot still invited the jury to share in the process of matching the fingerprints. Not wishing to squander a powerful visual image, he dis- tributed enlargements of the evidence to each juror so that 'they can readily see for themselves'.39 Thus jurors were encouraged to feel not only that they had witnessed the expert making the ident, but also that they had witnessed the match themselves.

Although Faurot exploited the visual appeal of fingerprint evidence so that the fingerprint match became something the jurors could see, as well as hear, he was careful not to relinquish his exclusive authority to interpret the evidence. When the defense attorney offered an alternative interpretation of an 'opening' in a papillary ridge - arguing that it represented a break in the physical ridge itself as opposed to (as Faurot claimed) an


artefact of the printing process - Faurot ultimately fell back on his own authority as expert:

Q: Officer, I ask you here in the conceded finger prints themselves, I ask you if the left middle finger of each of these is alike in each.

A: Yes, sir. Q: They are the same in your judgment? A: Yes, sir. Q: Don't you see that one of them has got a decided opening, the one of

1907 and other one has not? Take the glass? A: I don't need it. I can see it. Q: Well, you can see it better with it, I believe? A: They are identical. Q: What? A: Identical. Q: Let the jury examine those two. A: You must take into consideration that the prints may be under

different conditions, more pressure being used. Q: No, I do not ask you that. I ask you if there is not a decided opening

and it does not make any difference how it came there - the proposi- tion that I urge is that it is there. Now, is it or is it not there, officer?

A: I claim that the prints are identical.40

In the last resort, Faurot no longer insists on making what he can see transparent to lay observers, but simply insists that the jury defer to his expert opinion: 'I claim that the prints are identical'. By drawing on an implicit body of expert knowledge, Faurot was able to dismiss certain visual discrepancies (such as what the defense attorney above calls a 'decided opening') as meaningless, thus calling 'identical' two images which are, to the lay observer, dissimilar. Moreover, through his brazen refusal of the magnifying glass, Faurot asserted that his expert vision was superior even to prosthetically-enhanced lay vision.

In the final exchange, Faurot makes it clear that what really matters is not what is visible but, rather, the overall opinion of the expert. While using enlarged exhibits to make the evidence easily visible to the jury, Faurot at the same time retained his authority as sole interpreter of that evidence, walking a thin line between transparency and opacity, between science and common sense. The jury was permitted to look at fingerprints, but only under expert supervision. While fingerprints might appear to be inter- pretable with 'good eyesight' and common sense, Faurot insisted that this is not the case: that years of experience and professional training allow him to see more accurately. Several jurors, however, remained unconvinced. Even after the defendant ended the trial by changing his plea to guilty following Faurot's testimony, several jurors told the judge they would have hesitated to convict Crispi on fingerprint evidence alone.4

Seeing as One

In the early trials, LFPEs passed a crucial milestone on the road to expert witness status: they won jurisdiction over the interpretation of fingerprint evidence, excluding lay actors such as judges and attorneys. Even juries,


which remained free to disregard the opinion of the expert as they were apparently prepared to do in Crispi, lacked the epistemological authority for doing so. Yet one actor with the authority to challenge the LFPE's claims remained: the defense expert. Customarily, expert witnesses achieve authority only to divide the spoils, resulting in the familiar spectre of duelling prosecution and defense witnesses sharing the same body of expert knowledge, yet differing as to matters of expert opinion. Almost alone among expert witnesses, LFPEs have managed to avoid this fate. The fingerprint defense expert never appeared. The record is almost devoid of cases with defense experts challenging the conclusions of the state's experts. (We shall see one such case below.) To understand why this happened, we must turn away from the drama of criminal trials toward more mundane matters of work practices and professional organization.

When LFPEs began offering evidence in court, the testimony of experts had a mixed reputation. Expert medical opinion had a long history in both Anglo-American and continental jurisprudence, but opinions on thorny medical questions, ranging from insanity to cause of death, seemed suspiciously malleable.42 Physicians enjoyed a rather unsavoury and mer- cenary reputation in regard to their dealings with the law.43 Psychiatrists and alienists appeared willing to take any position for the right price.44 Coroners, meanwhile, were not even physicians: they were political hacks, usually more than willing to suit their verdicts to fit the needs of an interested party, such as the family or an insurance company.45

Graphologists (handwriting experts), the expert witnesses most analogous to LFPEs (because they testified to personal identity), suffered from a particularly unsavoury reputation as pseudo-experts whose testimony seemed disturbingly likely to suit the needs of their clients.46 In the late 19th century, some graphologists, notably Jean-Hippolyte Michon, had failed to enact what would work successfully for LFPEs several decades later: arguing that all attempts to match handwriting samples should yield only two results - an indisputable match, or 'inconclusive'."

LFPEs suddenly found themselves in a precarious position. While juries seemed more than willing to believe their testimony, LFPEs knew that they could easily undermine their credibility by bickering on the stand. To avoid falling prey to the ignominious fate shared by graphologists and psychiatrists, LFPEs developed a novel occupational norm: unanimity. Fingerprint matches, they argued, were not matters of opinion because all LFPEs' opinions agreed; as LFPE Frederick Kuhne declared as early as 1917: 'The testimony of a finger print expert is not subject to contradiction by another finger print expert'.48

Unanimity within the profession became the wedge with which LFPEs distinguished themselves from other expert witnessing professions which tended toward internal disagreement. As an observer commented in 1913:

It is believed that in all of the cases in which [fingerprint] evidence has so far been made use of, in no instance has there been that conflict of


opinion between the experts which is a disgusting feature of the testimony of the so-called 'alienists'.4

In 1919, A.A. Gribben, an LFPE, suggested that fingerprint experts offer the following caveat when testifying:

The identification of a person by his finger prints or their impression ... must not be confused with 'palmistry', that pretended art by which the charlatan and faker for a consideration pretends that he can foretell future events. Nor is it to be confounded with the operations of the Hand- writing Expert, who is only able at the best to give AN OPINION as to the possibility of two writings having been made by the same person. ... Any or all of these methods are subject to error, and there is always an element of doubt in their findings that make their conclusions unreliable. Two experts in any or all of these methods, can and do disagree because their conclusions are based entirely upon possibilities. The finger print expert has only facts to consider; he reports simply what he finds. The lines of identification are either there or they are absent. If two prints are identical in every particular, they were made by the same person. If they are different, they were not made by the same person.50

Of course, as I have explained above, this is not strictly true: the essence of fingerprint identification consists precisely of matching two prints which are not'identical in every particular', but rather differ in numerous ways, none of which undermine the hypothesis that the two prints derive from a common source.

'No matter how many finger print experts may be engaged in the labor of comparing two prints', Gribben went on to say, 'their verdict must be the same'.5' Thus early LFPEs were constructing rules of practice around results: correct practice was that which yielded identical verdicts from different experts. Such practice required a new kind of skill, which lay less in the spectacular ability to match fingerprints before the jury than in the ability to conform to the judgements of one's peers. What skill there was in latent fingerprint analysis was a skill of consistency; it lay in the ability of examiners everywhere to render identical judgements. The skill of the fingerprint expert lay in restraint, in not overreaching, in knowing not to breach the limits of common visibility, in no longer performing miracles.

The LFPE's expert vision was no longer keener, so much as shared. To see anything that one's peers could not spelled disaster. The skill of fingerprint experts lay in their ability all to see the same thing under the same conditions: 'Others with equal knowledge and ability must be able to see what you see', became their motto.52 Only by maintaining this consensus were they able to sustain the claim that what they saw was indisputably, objectively there. A correct fingerprint interpretation was one which everyone with similar training could also see. LFPEs limited their own vision by insisting that anything their colleagues could not see was by definition invisible. This principle was crucial in sustaining the extra- ordinarily high degree of certainty claimed by latent fingerprint evidence.

No other forensic science dared make such a bold claim. As the years passed, the idea of an 'exact science' became increasingly anachronistic,


and fingerprinting eventually became isolated, once again, as the only science to claim exactness. Exactitude, which had at first been the wedge which separated dactyloscopy from the pseudo-sciences, is now the wedge which separates it from its fellow forensic sciences and, in a certain sense, makes it appear less 'scientific'. Among professional experts, LFPEs became as unique as fingerprints themselves.53

Maintaining Closure

The problem with claiming such a high degree of certainty is that a single well-publicized blunder can collapse the entire system of credibility and trust upon which the profession is based. Early on, dactyloscopers recognized the fragility of the cognitive edifice they had constructed. As Kuhne remarked in 1917:

[I] t is very important that great care be exercised, not only in classifying a print, but in making the comparison, as an error, such as a wrong identification, or failing to find a previous print when the same is actually on file, is sure to cause a doubt in the minds of numerous persons as to the infallibility of finger impressions.54

It is difficult to glean information about cases of error because they rarely produce a public record, and the relevant organizations and agencies tend not to discuss them publicly.55 We do, however, have access to the record of one case of an error by a fingerprint examiner, State v. Caldwell. In 1982, the Minnesota Supreme Court reversed a 1977 murder conviction largely because it decided that the identification by the prosecution's fingerprint expert, Steven Sedlacek, was erroneous.56 The Court based this conclusion on the testimony of other LFPEs who examined the disputed impression after the trial and deemed it an illegible or inconclusive print. During the trial, however, Sedlacek's testimony had gone unchallenged (illustrating, yet again, that defense attorneys tend neither to challenge fingerprint evidence, nor even to consult their own experts).

In contrast to some past cases of misidentification where the 'expert' was found to have misrepresented his qualifications, Sedlacek, an examiner certified by the International Association for Identification (IAI), the leading professional organization, could not be dismissed as a meddling amateur.57 Nevertheless, to admit that qualified LFPEs might reasonably disagree about the legibility of a latent print would be to undermine the painstakingly achieved aura of certainty that by then surrounded fingerprinting. Consequently, the IAI had little choice but to attribute the dispute not to reasonable disagreement over a difficult ident, but to outright misconduct on the part of the examiner.

In 1981, the IAI revoked Sedlacek's certification for making an erroneous identification and also revoked the certification of two other LFPEs: Claude Cook, for submitting 'a communication in support of the erroneous identification made by Mr Sedlacek'; and Ronald Welbaum, who had been retained by the defense, for confirming Sedlacek's erroneous identification.58 These harsh sanctions reveal the extremely high standards


necessary to maintain fingerprinting's ambitious claims to certainty: most professional organizations will revoke certification for misconduct, but not for an 'honest' mistake.59 (The Court was careful to note that Sedlacek's testimony was erroneous rather than deliberately false.60) Other professions tend to rally around embattled members after errors are exposed, and they have 'insurance' mechanisms to distribute the blame across the whole profession, rather than focusing it on the individual practitioner.6' The fingerprint profession's greater knowledge claims force it to be more draconian about disciplining its members. In light of the certainty now accorded fingerprint evidence, the IAI could not afford to tolerate two certified members maintaining an identification and several others denying it. Sedlacek and Cook had to be sacrificed for the common good, no matter how 'honest' their mistake.

Significantly, the IAI attributed the error to the practitioner rather than to the method. It determined that Sedlacek had vaingloriously attempted to push the method too far by identifying an 'illegible' print. The print identified by Sedlacek should properly have been termed 'inconclusive', for the precise reason that it yielded different interpretations from different experts. Any print that yields different interpretations by qualified experts is by definition an inconclusive print. In this way, the IAI successfully maintains the principle that there are no disputed prints - only inconclusive ones.

In Sedlacek's case, of course, there was no way he could have known that other experts would not see the print the way he did since, so far as we know, he never submitted it to any other experts for confirmation. In theory, fingerprint experts maintain that all idents should be independently confirmed by another qualified examiner, from the same crime laboratory or from some other authority, such as a state laboratory. Although many agencies and LFPEs adhere to this principle, many others do not. In practice, though this confirmation may not actually be done, the expert is supposed to behave as if it were done, as if there were a virtual confirming expert: 'Above all, the experienced examiner knows that the validity of the identification can be demonstrated to the satisfaction of other qualified examiners', says a leading LFPE;62 'The essence is that which can be verified and that which cannot', says another.63 The fact that Sedlacek's ident was not actually disconfirmed, therefore, was no excuse; he should have known that another expert might have disconfirmed it.

This practice of confirmation requires a generosity of spirit, sub- limation of ego and intellectual restraint that belies the autonomy usually considered the prerogative of the professional expert. A LFPE who cannot convince her colleagues to confirm her ident must relent and label the print inconclusive: 'While the truth is not always on the side of the masses, if a group of qualified examiners find X, and I alone think Y, I had better examine my opinion', says one LFPE.64 The fact that fingerprinting does not admit of any disagreement among experts is a more strongly held tenet than any particular LFPE's method or opinion.


LFPEs have been trained to respond to disagreement by reconciling their interpretations, rather than by airing the disagreement. Disputes between examiners tend to be resolved in private. As Roger Smith has argued, all communities of forensic scientists try to suppress disagreement due to 'collective self-respect and the danger of exposure in the courts. Their authority both as individuals and as a group depends on their ability to construct factual consensus'.65 But, while most forensic professions view consensus as a positive good in theory, none has been able to achieve it in practice to the same degree as fingerprinting. Unlike other forensic pro- fessionals, LFPEs have managed to adhere to Kuhne's 1917 injunction that 'the testimony of a finger print expert is not subject to contradiction by another finger print expert'.66

But Is It Science?

The achievement of almost complete interchangeability of expert opinions within the fingerprinting profession gives the testimony of LFPEs enormous power in the courtroom. Interchangeability allows the individual LFPE - with all his or her biases, prejudices, competencies or incom- petencies - to fade into the background. The idea conveyed is that the individual examiner does not in any way influence the outcome of the analysis, much in the way that Steve Shapin's 'invisible technicians' were portrayed as having no influence on the outcome of experiments.67

But wait a minute. How can the testimony of an expert not be subject to contradiction by another expert? The very idea threatens to undermine LFPEs' professional status. In sociologist Andrew Abbott's terms, LFPEs have jeopardized their own claims to expertise because they too rarely 'resorted to complex inference'. The status of many expert witnessing professions (like psychiatry) becomes imperilled when differences of opinions between experts become so common that the public (or the courts) begin to wonder whether there is indeed any shared body of knowledge. LFPEs, in contrast, may undermine themselves because differences of opinion between experts are so rare that it may become difficult to convince the public that fingerprint examination requires any expert knowledge at all.68

It is true, of course, that one need not be a scientist, a professional or even an expert in order to testify as an expert in court. Some LFPEs, recognizing this distinction, have long argued that they are not, in fact, experts. Whether the 'E' in LFPE stands for 'expert' or 'examiner' has long been a subject of heated debate. As early as 1927, IAI founder Harry Caldwell derided the use of the term 'finger-print expert' as misleading and hubristic.69 Nevertheless, over the course of the century, rank-and-file LFPEs have frequently referred to themselves as 'experts', even as their leaders decried the practice. Many were anxious about ensuring that they would be qualified to testify in court, apparently unaware that the legal definition of an expert differs from the commonsense notion of expertise.


In 1972, Andre Moenssens, an LFPE and law professor, tried to convey this point when he told the IAI convention:

I don't think we should ever use the term 'fingerprint expert' when referring to ourselves. You are a fingerprint examiner or a fingerprint technician.... You are not an expert by trade. You are an examiner or technician, whichever you choose, who can qualify in court as an expert.70

The issue of expertise is implicated in a parallel internal debate over whether LFPEs are properly considered 'scientists' or 'technicians'. Again, most rank-and-file LFPEs tend to view themselves as 'forensic scientists', and would agree with the late Robert Olsen, the editor of the fingerprint manual Scott's Fingerprint Mechanics, who flatly declared: 'Fingerprint identification is a science ... employing scientific methodologies and human problem-solving techniques and requiring considerable experience for their proper employment'.7

However, legal experts like Moenssens and Bernard Robertson insist that 'fingerprint "experts" are in fact technicians and not scientists'.72 The issue is method, not prestige; as Moenssens stresses: 'Nothing pejorative or negative is intended by the label "technician" '.7 Indeed, both philosophies have their uses for the public presentation of fingerprint work. Science still carries prestige, and juries expect expert witnesses to invoke the mantle of science. Invoking science reinforces the notion that LFPEs are working with privileged knowledge, and it discourages outsiders from invading their domain. Simultaneously assuming the role of technicians helps assure the public and the courts that fingerprinting is so routine that mistakes are impossible. If LFPEs present themselves as 'invisible technicians', then fingerprint identifications are neither judgement calls nor matters of interpretation. The power of fingerprint evidence lies largely in LFPEs' ability to draw on both rhetorics, simultaneously to present themselves both as 'scientists' and as 'technicians'.

Conclusion

LFPEs have achieved their enormous credibility in the courtroom precisely because they have not resolved the paradoxes surrounding the nature of fingerprint evidence and their own status as expert witnesses. Through their own shrewd use of rhetoric and deployment of visual evidence, and perhaps the courts' indulgent disinclination to delve too deeply into the nature of fingerprint evidence, LFPEs have managed to have it both ways: fingerprint evidence can be displayed to the jury for rhetorical effect, but LFPEs can call upon their own expertise to override any attempt to construct an alternative interpretation of the evidence. LFPEs invoke the rhetoric of science and describe their own work as 'science', but they behave like technicians, whose conclusions are far less open to 'interpretive flexibility'.

Perhaps most important have been LFPEs' voluntary limits on their own authority and expertise: their willingness to concede marginal prints


as illegible and their subordination of individual ambition to collective solidarity. This strategy has enabled LFPEs to testify with an ironclad impunity that stands in sharp contrast to the experience of other scientific experts, but it has not come without cost. LFPEs have been forced severely to limit their domain of expertise, and their claims to be practising 'science' are being met with increasing scepticism by their fellow forensic scientists.74 The price of credibility appears to be 'technician' status. But most LFPEs do not seem to mind. LFPEs are the rare professional group which has opted voluntarily to limit the boundaries of its field of expertise, preferring 'certain' knowledge claims in a small domain to uncertain knowledge claims in an expanding domain.75

Recent legal discussions of scientific evidence have argued that the established techniques of forensic identification are not 'scientific'. The new Daubert standard in the USA, which seeks to articulate better what the courts understand by the 'scientific method', is taken in some circles actually to threaten the admissibility of fingerprint evidence.76 Rather than concentrating on whether or not fingerprint identification is 'scientific', I have focused here on how it became credible. Social factors - such as how fingerprint evidence was presented, visually and rhetorically, and how the profession organized itself - were as important as whether the method fit the current definition of 'science'. The case of fingerprint evidence shows that the construction of a credible forensic identification technique may require both more and less than 'practising science'.

Therefore it is not yet clear whether this is a road that forensic DNA experts can, or would wish to, follow. Forensic DNA experts currently suffer from a similar ambiguity between 'scientist' and 'technician' status. The practice of DNA typing is currently highly segmented: even within the same laboratory, forensic DNA typing may be performed by molecular biologists holding PhDs and laboratory technicians with more hands-on training. Rather than being a source of power, however, for DNA this ambiguity has provided rifts within the profession, which skilled defense attorneys can exploit. The range of 'DNA experts' scheduled to testify in the Simpson trial is illustrative: from a humble technician (Dennis Fung) to a superstar criminalist (Henry Lee) to an acid-freak Nobel Laureate (Kary Mullis).77

If DNA typing is ever to achieve the courtroom credibility of fingerprinting, the job will probably have to be relegated exclusively to technicians who rigorously follow prescribed protocols. Only individuals with 'technician' status will be willing to subordinate their individual opinion to that of the collective. Only 'technicians' will be willing to concede limits on the method and label some evidence 'inconclusive'.78 The ad hoc practices of scientists confident enough to disregard their own protocols, so ruth- lessly exposed by the defense in the Simpson trial, will have to become a thing of the past.

Similarly, the method of genetic analysis will have to stabilize. Already, 'DNA typing' refers to a variety of techniques (PCR, RFLP), and more (such as mitochondrial DNA) are on the way. In order successfully to


emulate fingerprinting, DNA analysts will probably have to settle on a single technique which is shared across jurisdictional boundaries. Other- wise, expert witnesses will be plagued by defense experts offering a different conclusion based on a 'better' technique.

Even under these conditions, it is still not clear whether DNA typing will ever live up to its billing as the 'greatest advance in forensic science since the development of ordinary fingerprints'." The list of pretended improvements on fingerprinting which have appeared over the course of the 20th century is long: sinus roentgenograms, veins in the back of the hand, voice prints, retina prints.80 Forensic identification is an extremely delicate undertaking, which requires rigorous policing of practitioners and method. The difficulties encountered by DNA typing should only heighten our amazement that fingerprint examiners ever managed to pull it off.

Notes

The research for this paper was partially supported by a National Science Foundation Research Grant (Studies in Science, Technology & Society, Ethics and Values Studies Program), 'DNA Fingerprinting: Law and Science in Criminal Processes', awarded to Cornell University (Sheila Jasanoff, Principal Investigator, NSF Award #9312183, 1993-94). For their critical comments on this work and their intellectual camaraderie, I am grateful to the other participants in this research project: Sheila Jasanoff, Michael Lynch, Bruce Lewenstein, Saul Halfon, Arthur Daemmerich, Kathleen Jordan and Rajan Kapur. For helpful comments on earlier drafts of this paper, I am indebted to Thomas Gieryn, Trevor Pinch, Davydd Greenwood, Ronald Kline, Jonathan Harkness, Vilma Santiago- Irrizary, Jennifer Mnookin, Carol Henderson, Michael Saks and Laura Kelly. Conversations and correspondence with forensic practitioners helped enhance my understanding of fingerprint identification and DNA typing. I am particularly grateful to John Berry, Carey L. Chapman, Ronald Lindell, Donald A. Sollars, Jeremy Johnson, Carla Finis, Howard Coleman, and many others who prefer to remain anonymous. I am also grateful to Peter Neufeld and Rockne Harmon for discussing the legal aspects of DNA typing with me. I would also like to thank Mary Jaene Edmonds and Michael Harling for swapping stories of Mary Holland, Thomas Jennings, James Parke, and early fingerprint history. Finally, I want to thank Nelson Roth for discussing the NewYork State Police evidence tampering investigation with me. Earlier versions of this paper were presented at the conference Doing is Believing: Credibility and Practice in Science and Technology (Department of Science & Technology Studies, Cornell University, 23 April 1995), and the joint meeting of the Society for Social Studies of Science (4S) and the Society for the History of Technology (SHOT) (Charlottesville, VA, 19 October 1995).

1. See, for example, Andrew Ross, 'If the Genes Fir, How do You Acquit?', in Toni Morrison and Claudia Brodsky Lacour (eds), Birth of a Nation'hood: Gaze, Script, and Spectacle in the 0 3Simpson Case (NewYork: Pantheon, 1997), 241-72.

2. Alec Jeffreys, the inventor of the first genetic identification technique reports that . . .

... one of the reasons we called this 'DNA fingerprinting' was absolutely deliberate. If we had called this 'idiosyncratic Southern blot profiling', nobody would have taken a blind bit of notice. Call it 'DNA fingerprinting', and the penny dropped.

[Alec Jeffreys, interviewed by Michael Lynch, Ruth McNally and Patrick Daly, University of Leicester, UK, 24 July 1996]. Forensic practitioners soon dropped the term 'DNA fingerprinting' in favour of 'DNA typing' or 'DNA profiling'. I draw throughout this paper on interviews conducted as part of our NSF-funded team


project: for further details, see the 'Introduction' to this Special Issue by Michael Lynch and Sheila Jasanoff, 'Contested Identities: Science, Law and Forensic Practice', Social Studies of Science, Vol. 28, Nos 5-6 (October-December 1998), 675-86 at 681-82.

3. Eric S. Lander and Bruce Budowle, 'DNA Fingerprinting Dispute Laid to Rest', Nature, Vol. 371 (27 October 1994), 735-38, at 735. See also the paper in this Special Issue by Saul Halfon: 'Collecting, Testing and Convincing: Forensic DNA Experts in the Courts', Social Studies of Science, Vol. 28, Nos 5-6 (October-December 1998), 801-28.

4. Johnnie Cochran, quoted in Anne Joseph and Alison Winter, 'Making the Match: Human Traces, Forensic Experts and the Public Imagination', in Francis Spufford and Jenny Uglow (eds), Cultural Babbage: Technology, Time and Invention (London: Faber & Faber, 1996), 193-214, at 208.

5. Grice v. State, 151 S.W2d 211 (Texas, 1941). 6. This is a general impression gathered from the absence of cases including defense

challenges to fingerprint evidence in the legal record (but see State v. Caldwell, below) and discussions and interviews with attorneys and LFPEs. It is difficult, of course, to provide evidence of a negative, but one illustration of the tendency of defense attorneys to take fingerprint evidence for granted was provided by an investigation of a recent evidence-tampering scandal among the NewYork State Police. The investigation found that 'in most, if not all of the cases where fingerprint evidence was significant, the defense attorneys were surprisingly complacent about the fingerprint evidence and did little, if anything to challenge it .... Indeed, it does not appear that a latent fingerprint expert participated on behalf on the defense in any of the tainted cases'. This was in spite of the fact that many of the fabrications were crude and easily detectable, and 'in at least one case the circumstance cried out for an independent evaluation by a defense fingerprint expert': Nelson E. Roth, The New York State Police Evidence Tampering Investigation, Report to the Governor of the State of NewYork (Ithaca, NY, 20 January 1997), 312.

7. See, for example, People v. Basheen Rush (NewYork, 1995), trial transcript, 186, quoted in 'Court Decisions', New York Law _rournal, Vol. 31 (20 June 1995), col. 2.

8. See, especially, Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995), 1-22; Roger Smith and Brian Wynne (eds), Expert Evidence: Interpreting Science in the Law (London: Routledge, 1989), 56-92.

9. See Joseph & Winter, op. cit. note 4. 10. This figure is taken from Martin Leadbetter, 'Rex v. Stratton and Stratton', Fingerprint

Whorld, Vol. 2 (January 1977), 32-38, at 35. Fingerprint Whorld is published by The Fingerprint Society, and is currently edited by Graham Hughes, at the Fingerprint Bureau, Merseyside Police HQ, Canning Place, Liverpool Li 8JX, UK.

11. This figure is taken from an item by John E. Berry in Ridge Detail in Nature, Vol. 7 (1983), 2. This annual journal is edited and published by John Berry, at 4 Chilterns, South Hatfield, Hertfordshire AL10 8JU, UK.

12. Figure 3 is also used by Saul Halfon in his paper in this Special Issue: op. cit. note 3, 809. It is an autoradiograph produced by GeneLex Corporation, and reproduced here with their kind permission. On the problems of seeing autoradiographs, see Klaus Amann and Karin Knorr-Cetina, 'The Fixation of (Visual) Evidence', in Michael Lynch and Steve Woolgar (eds), Representation in Scientific Practice (Cambridge, MA: The MIT Press, 1990), 85-122.

13. I am making deliberate use of an analogy with the 19th-century optical invention, the stereoscope, which entailed a similar disciplining of observation: see Jonathan Crary, Techniques of the Observer: On Vision and Modernity in the Nineteenth Century (Cambridge, MA: The MIT Press, 1990).

14. William F. Leahy, 'The Value of an Identification Bureau to a Prosecuting Attorney', Minutes of the Annual Convention of the International Association for Identification (Berkeley, CA: International Association for Identification, 1921), 32.


15. See Michael Lynch, 'Discipline and the Material Form of Images: An Analysis of Scientific Visibility', Social Studies of Science, Vol. 15, No. 1 (February 1985), 37-66. An analogous, though clearly more tenuous, argument was made in the Rodney King case. The State's expert witnesses contended that what appeared to lay observers around the world as an unambiguous videotape of four police officers brutalizing a helpless civilian, was actually something quite different when viewed through the lens of their professional expertise: Charles Goodwin, 'Professional Vision', American Anthropologist, Vol. 96 , No. 3 (September 1994), 606-33; Avital Ronell, 'Video/Television/Rodney King: Twelve Steps beyond The Pleasure Principal', Differences, Vol. 4, No. 2 (Summer 1992), 1-15. Another group of technicians with 'professional vision' is discussed in Stephen R. Barley, 'The Social Construction of a Machine: Ritual, Superstition, Magical Thinking and Other Pragmatic Responses to Running a CT Scanner', in Margaret Lock and Deborah R. Gordon (eds), Biomedicine Examined (Dordrecht: Kluwer, 1988), 497-539; Barley, 'Technology as an Occasion for Structuring: Evidence from Observations of CT Scanners and the Social Order of Radiology Departments', Administrative Science Quarterly, Vol. 31, No. 1 (March 1986), 78-108.

16. I am indebted to Vilma Santiago-Irrizary for pointing out the curious positions Anglo- American law has taken regarding the reliability of vision and hearing. It generally trusts vision, even when, as in the case of eyewitness evidence, it is known to be unreliable - while hearing, as in the various restrictions on hearsay, is subjected to strict scrutiny. On the origins of modern science's equation of objectivity with visual analysis, see, for example, Lorraine Daston and Peter Galison, 'The Image of Objectivity', Representations, Vol. 40, No. 1 (Fall 1992), 81-128.

17. G. Tyler Mairs, 'Random Thoughts Concerning Finger Prints', Finger Print and Identification Magazine, Vol. 36, No. 2 (February 1955), 3-18, at 3.

18. Anonymous LFPE, interviewed by Simon Cole (24 July 1996). 19. The notion of synesthesia is drawn from James W Fernandez, Persuasions and

Perfornmances: The Play of Tropes in Culture (Bloomington, IN: Indiana University Press,

1986), 40-41. 20. The first 'fingerprint expert' was probably Juan Vucetich, a criminalist in La Plata,

Argentina, who supervised the use of fingerprints in the Rojas child-murder case in 1892. The earliest forensic fingerprint case appeared in Argentina because it was there that a fingerprint classification system for criminal record-keeping was first developed. Fingerprinting was initially embraced by police departments as a record-keeping tool; its forensic potential was generally viewed only as an additional benefit. See Simon A. Cole, Manufacturing Identity: A History of Crinlinal Identification Techniques from Photography through Fingerprinting (unpublished PhD thesis, Department of Science

and Technology Studies, Cornell University, 1998), 124-97, 226-33. 21. George Wilton Wilton, Fingerprints: History, Law and Romance (London: William

Hodge, 1938), 94. 22. Emperor v. Sahdeo 3 Indian L. Rep. 1 (Nagpur, 1904). Forensic fingerprint cases also

appeared early in India because a second fingerprint classification was developed there by Edward Henry. Accordingly, India has the oldest case law on fingerprint evidence in the English language.

23. Emperor v. Abdul Hamid 32 Indian L. Rep. 759-70 (Calcutta, 1905), reprinted in John H. Taylor, Finger-Print Evidence (Washington, DC: United States Navy Department, 1920), 7-9.

24. Emperor v. Abdul Hamid, op. cit. note 23, 759-70.

25. The concept of 'jurisdiction' is taken from Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago, IL: The University of Chicago Press, 1988), esp. 86-91.

26. In 1901, Garson had opposed theYard's switch from anthropometric identification to fingerprinting: Lord (Henry) Belper et al., Minutes of Evidence taken before the

Departmental Committee on Identificationi of Crinzinals (London: Wyman & Sons, 1901), 40-42. Another 'expert', Henry Faulds, was at the defense table but, for reasons that are not clear, did not testify. Faulds was one of the originators of modern fingerprint


identification, having described the technique in 'On the Skin Furrows of the Hand', Nature, Vol. 22 (28 October 1880), 605: see Cole, op. cit. note 20, 128-31. In a pamphlet published immediately after the Deptford trial, Faulds was highly critical of the Stratton match and competence of Collins and theYard's fingerprint operation in general: Henry Faulds, Guide to Finger-Print Identification (Hanley, Staffs.: Wood Mitchell, 1905).

27. George Wilton Wilton, Fingerprints: Fifty Years of Injustice (Galashiels: A. Walker & Son, 1955), 13.

28. Anne M. Joseph, 'Anthropometry, the Police Expert, and the Deptford Murders: The Contested Introduction of Fingerprinting for the Identification of Criminals in Late Victorian and Edwardian Britain', in Jane Caplan and John Torpey (eds), Documenting Individual Identity: The Development of State Practices in the Modern World (Princeton, NJ: Princeton University Press, 1999), in press; Leadbetter, op. cit. note 10.

29. Mary Holland, wife of the editor of The Detective, Philip Holland, began a long tradition of female LFPEs in the United States: see Mary Jaene Edmonds, Haunting Chicago: The Legend of Mary Holland and the _Jennings Murder Trial (forthcoming). Most women worked in record-keeping, though, and trial testimony was rare. Membership in the International Association for Identification was not open to women in the early 20th century.

30. ScotlandYard's 'Henry system' of fingerprint classification had first been instituted in the USA in 1902 by Henry DeForest in order to verify the identity of applicants for the police and fire departments taking civil service applicants. For criminal identification, the Henry system had been implemented at the NewYork State Bureau of Prisons by James Parke in 1903. Parke, working from Henry's published training manual, had modified the system slightly, in effect creating a new classification system, which he dubbed 'The American System'. It was not until 1904 that Ferrier introduced the Henry system to the USA in its true form. Most US agencies adopted Ferrier's version of the Henry system, so 'The American System' became quite a misnomer: see Cole, op cit. note 20, 248-50, 295-97; Harry Myers II, 'De Forest's Pioneer Finger Print Operations', Finger Print and Identification Magazine, Vol. 30, No. 8 (August 1948), 3-19; Michael Harling, Origins of the New York State Bureau of Identification (Albany, NY: NewYork State Division of Criminal Justice Services, 1996).

31. People v. Jennings, trial transcript, 139. 32. Ibid., 114-15. 33. People v. Jennings 96 N.E. 1077 (Illinois, 1911), at 1082-83. 34. Edward Lindsey, 'Conviction of Murder on Finger-Print Evidence', J7ournal of the

American Institute of Criminal Law and Criminology, Vol. 1 (1911), 848-49, at 849. 35. People v. Crispi (New York, 1911), trial transcript, 41-45. 36. On handwriting experts, see Tamara Plakins Thornton, Handwriting in America: A

Cultural History (New Haven, CT: Yale University Press, 1996), 73-135; Roxanne Panchasi, 'Graphology and the Science of Individual Identity in Modern France', Configurations, Vol. 4, No. 1 (Winter 1996), 1-31; D. Michael Risinger, Mark P. Denbeaux and Michael J. Saks, 'Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise" ', University of Pennsylvania Law Review, Vol. 137 (1989), 731-88; and Jennifer Mnookin's forthcoming PhD thesis (Massachusetts Institute of Technology).

37. People v. Crispi, trial transcript, 83-99. On the problems of replication, see H.M. Collins, Chaniging Order: Replication and Induction in1 Scientific Practice (Chicago, IL: The University of Chicago Press, 1985), 29-49.

38. In their book Leviathan and the Air Pump: Hobbes, Boyle and the Experimental Life (Princeton, NJ: Princeton University Press, 1985), 60-65, Steven Shapin and Simon Schaffer argue that science requires a mechanism for 'witnessing' experiments. For reasons of convenience, scientists eventually dispensed with 'live' witnessing, establishing in its stead more complex mechanisms for 'virtual witnessing'. In this case, Faurot blurred the boundary between 'virtual' and actual witnesses.


39. People v. Crispi (NewYork County District Attorney Case File #81943, Municipal Archives of the City of NewYork). Similarly, during the testimony of a Norwegian expert witness, a reporter remarked: 'The resemblance leapt to our eyes': A. Daae, 'Un cas d'identification par les empreintes digitales a la cour d'assiss de Christiania', Archives Internationales de Medecine Legale, Vol. 2 (1911), 58-62, at 59. The rhetorical technique of making the jurors participants in the matching process is still practised today. One LFPE suggests leaving some points unlabelled, so the jury can find them for themselves: Pat A. Wertheim, 'Qualifying as an Expert Fingerprint Witness: Designing a Set of Questions to Assist in Court Testimony', Journal of Forensic Identification, Vol. 40 (1990), 60-68.

40. People v. Crispi, trial transcript, 162-63. 41. Ibid., 255; 'Finger Prints Convict', New York Times (12 May 1911), 20. 42. Catherine Crawford, 'Legalizing Medicine: Early Modern Legal Systems and the

Growth of Medico-Legal Knowledge', in Michael Clark and Crawford (eds), Legal Medicine in History (Cambridge: Cambridge University Press, 1994), 89-116; Mary Nagle Wessling, 'Infanticide Trials and Forensic Medicine: Wurttemburg, 1757-93', in ibid., 117-44; Joel Peter Eigen, ' "I Answer as a Physician": Opinion as Fact in Pre- McNaughtan Trials', in ibid., 167-99.

43. James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (NewYork: Oxford University Press, 1993).

44. Charles E. Rosenberg, The Trial of the Assassin Guiteau: Psychiatry and Law in the Gilded Age (Chicago, IL: The University of Chicago Press, 1968).

45. Julie Johnson[-McGrath], 'Coroners, Corruption and the Politics of Death: Forensic Pathology in the United States', in Clark & Crawford (eds), op. cit. note 42, 268-89.

46. On graphology, see note 36. 47. Claire Valier, 'True Crime Stories: Scientific Methods of Criminal Investigation,

Criminology, and Historiography', British J7ournal of Criminology, Vol. 38, No. 1 (Winter 1998), 88-105, at 93.

48. Frederick Kuhne, The Finger Print Instructor (New York: Munn, 1917), iv. 49. Edwin R. Keedy, 'Finger Prints and Heart Pulsations', Journal of the American Institute

of Criminal Law and Criminology, Vol. 3 (1913), 952-54, at 953. 50. A.A. Gribben, 'How the Finger Print Expert Presents His Case in Court', Finger Print

and Identification Magazine, Vol. 1, No. 2 (August 1919), 499-516 at 511 (emphasis in original).

51. Ibid. (emphasis in original). Gribben's is a very revealing use of the term 'must' to describe both the necessity that the judgements of two experts be the same and the underlying principle that different judgements are not possible.

52. David R. Ashbaugh, 'The Premise of Friction Ridge Identification, Clarity, and the Identification Process', J7ournal of Forensic Identification, Vol. 44 (1994), 499-516, at 511.

53. 'The fingerprint expert is unique among the forensic specialists. Because the fingerprint science is objective and exact, conclusions reached by fingerprint experts are absolute and final': Robert J. Hazen and Clarence E. Phillips, 'The Expert Fingerprint Witness', in Henry C. Lee and R.E. Gaensslen (eds), Advances in Fingerprint Technology (New York: Elsevier, 1991), 241-59, at 242. The former head of the Identification Division at New ScotlandYard (citing a 1934 legal judgment) agrees: 'It is possible that arguments regarding the origin of the fingerprint may take place, but not about the fundamental identification. Fingerprint identification is not a conclusion based on theories, but fact . . .': Gerald T.C. Lambourne, 'Fingerprint Standards', Medicine, Science, and the

Law, Vol. 24, No. 3 (July 1984), 227-29, at 227. 54. Kuhne, op. cit. note 48, 61. 55. For instance, the British recently reported a fingerprint misidentification. Although the

press speculated that this might undermine the credibility of fingerprint evidence, nothing more has been heard of the case as of this writing. See: Stephen Grey, 'Yard in

Fingerprint Blunder', The Times (London, 6 April 1997), 4; Duncan Campbell, 'Fingerprint Proof "Flawed" ', The Guardian (London, 7 April 1997), 5; Keith Potter,


'Error in Fingerprint Identification Could Lead to More Challenges', Police Review (11 April 1997), 4. I am indebted to Michael Lynch and John Berry for these references.

56. State v. Caldwell, 322 N.W. 2d 574 (Minnesota, 1982), at 584. Also see James E. Starrs, 'A Miscue in Fingerprint Identification: Causes and Concerns', Journal of Police Science and Administration, Vol. 12 (1984), 287-96. Technically, because US appeals courts may not rule on facts, the Court determined that the trial court had improperly denied the defendant's request for a new trial on the basis of new evidence that the original fingerprint identification was erroneous.

57. In 1939, the Kentucky Court of Appeals reversed a murder conviction because the fingerprint identification had been made by H.G. Coffey, an 'expert' of suspect qualifications. Coffey claimed to be a graduate of Cook & Evans University in Chicago, an inaccurate reference to the criminalistics school, The Institute of Applied Science: Shelton v. Commonwealth 134 S.W, 2d 653 (Kentucky, 1939), at 656.

58. 'Certification Revoked', Identification News, Vol. 31, No. 2 (February 1981), 2; 'Certification Revoked', ibid., No. 9 (September 1981), 2.

59. Marie R. Haug, 'Computer Technology and the Obsolescence of the Concept of Profession', in Haug and Jacques Dofny (eds), Work and Technology (Beverly Hills, CA: Sage, 1977), 215-28. Condemning the erring LFPE for incompetence is the profession's way of 'accounting for error', which allows it to preserve the integrity of the profession by sacrificing the credibility of a member: see Michael Mulkay and G. Nigel Gilbert, 'Accounting for Error: How Scientists Construct their Social World When They Account for Correct and Incorrect Belief', Sociology, Vol. 16, No. 2 (May 1982), 165-83. Charles Perrow, in his Normal Accidents: Living with High-Risk Technologies (NewYork: Basic, 1984), notes a similar institutional preference for blaming 'human error' rather than flaws in 'the system'.

60. State v. Caldwell, op. cit. note 56, at 596 (Peterson, J., dissenting). 61. Everett Cherrington Hughes, Men and their Work (Glencoe, IL: Free Press, 1958), 90.

In forensic science in general, there is a similar tendency to blame the individual scientist or technician for 'miscarriages of justice', while preserving the credibility of the system: Carol A.G. Jones, Expert Witnesses: Science, Medicine, and the Practice of Law (Oxford: Clarendon Press, 1994), 270-71.

62. Robert D. Olsen, Sr, 'Identification of Latent Prints', in Lee & Gaensslen (eds), op. cit. note 53, 39-58, at 55-56 (emphasis in original). Also see Starrs, op. cit. note 56, 295.

63. David L. Grieve, electronic posting [forens-l@&,acc.fau.edu], Forensics Newsgroup (28 March 1995).

64. Azriel Gorski, electronic posting [forens-l(a)acc.fau.edu], Forensics Newsgroup (22 March 1995).

65. Roger Smith, 'Forensic Pathology, Scientific Expertise, and the Criminal Law', in Smith & Wynne (eds), op. cit. note 8, 56-92, at 65-66.

66. See note 48. 67. Steven Shapin, A Social History of Truth (Chicago, IL: The University of Chicago Press,

1994), 355-407. 68. Abbott, op. cit. note 25, 51. 69. Proceedings of the Annual Convention of the International Association for Identification

(Memphis, TN: IAI, 30 August - 3 September 1927), 39. 70. Andre A. Moenssens, 'Testifying as a Fingerprint Witness', Finger Print and

Identification Magazine, Vol. 54, No. 6 (June 1972), 3-18, at 14. 71. Olsen, op. cit. note 62, 55-56. 72. Bernard W.N. Robertson, 'Fingerprints, Relevance and Admissibility', New Zealand

Recent Law Review, Vol. 2 (1990), 252-58, at 256. Also see Thomas E. Krupowicz, Fingerprints: Innocence or Guilt, the Identity Factors (Chicago, IL: Terk, 1994), 161.

73. Andre A. Moenssens, 'Novel Scientific Evidence in Criminal Cases: Some Words of Caution', Journal of Criminal Law & Criminology, Vol. 84, No. 1 (Spring 1993), 1-20, at 5.

712 Social Studies of Science 2815-6

74. For more on this issue, see Simon A. Cole, 'What Counts for Identity? The Historical Origins of the Methodology of Latent Fingerprint Identification', Science in Context (forthcoming).

75. Abbott, op. cit. note 25, 71. 76. Michael J. Saks, 'Merlin and Solomon: Lessons from the Law's Formative Encounters

with Forensic Identification Science', Hastings Law 3tournal (forthcoming); David Stoney, 'Fingerprint Identification', in David L. Faigman et al. (eds), Modern Scientific Evidence (St Paul, MN: West), 814-39.

77. Kenneth B. Noble, 'Unorthodox Expert With a Nobel Prize Prepares for the Simpson Spotlight', New York Times (5 April 1995), A18.

78. On laboratory technicians and the routinization of DNA-typing techniques, see Kathleen Jordan and Michael Lynch, 'The Mainstreaming of a Molecular Biological Tool: A Case Study of a New Technique', in Graham Button (ed), Technology in Working Order: Studies of Work, Interaction, and Technology (London: Routledge, 1993), 162-78, at 175.

79. As Lander and Budowle claim: see note 3. 80. SEARCH Group Inc., Legal and Policy Issues Relating to Biometric Identification

Technologies, unpublished report for the Bureau of Justice Statistics, US Department of Justice (Sacramento, CA, April 1990), 3; William Ledlie Culbert and Frederick M. Lau, 'Identification by Comparison of Roentgenograms of Nasal Accessory Sinuses and Mastoid Processes', Journal of the American Medical Association, Vol. 89 (21 May 1927), 1634-36; Ciprian Kolb and Leo Gresz, 'A New Method for Identifying Persons: The Veins in the Back of the Hand', Scientific American Supplement, Vol. 70 (3 September 1910), 159.

Simon A. Cole is a Postdoctoral Fellow at the Institute for Health, Health Care Policy, and Aging Research at Rutgers University. He recently completed his dissertation Manufacturing Identity: A History of Criminal Identification Techniques from Photography through Fingerprinting in the Department of Science & Technology Studies at Cornell University.

Address: Institute for Health, Health Care Policy, and Aging Research, Rutgers University, 30 College Avenue, New Brunswick, New Jersey 08901-1293, USA; fax: +1 732 932 6872; email: [email protected]

simon a coyle - witness identification

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