Latent Science: A History of Challenges to Fingerprint Evidence in Australia

By Edmond, Gary | University of Queensland Law Journal, December 2019 | Go to article overview

Latent Science: A History of Challenges to Fingerprint Evidence in Australia


Edmond, Gary, University of Queensland Law Journal


I INTRODUCTION

This article surveys the record of legal challenges to latent fingerprint evidence in Australian criminal proceedings. (1) Starting with the first appeals at the beginning of the 20th century and continuing up to the present day, it documents both the ways lawyers sought to impugn fingerprint evidence and the ways trial judges and appellate courts responded. (2) Through reference to contemporary scientific research, the article explains how our admissibility rules and procedure, and even our oft-celebrated trial safeguards, did not apprise decision-makers--whether judges or juries--of the uncertainties, risks and limitations associated with latent fingerprint evidence. Legal responses to latent fingerprint evidence reveal that Australian courts allowed latent fingerprint examiners to make categorical assertions about identity from the very beginning. This permissive disposition persisted as new technologies were adopted, as rules of evidence and procedure were reformed, and as controversies and criticism slowly emerged beyond the courts. Today, the epistemological limitations of latent fingerprint evidence and criticism of legal responses to this evidence remain (almost) unknown to law.

Drawing on the long history of reported decisions, the number of cases involving serious epistemological challenges--engaged with the validity and scientific reliability of latent fingerprint evidence--is tiny. Indeed, for the period from 1900 to 2017 there appears to be just one. Rather than facilitate engagement with scientific research in order to make fingerprint examiners accountable and their opinions comprehensible for judges and juries, oft-celebrated legal protections have been overwhelmingly focused on non-epistemic issues and epiphenomena. Perhaps the most revealing and disconcerting dimension of this account is the apparent failure of any judge to ever require a latent fingerprint examiner to provide independent evidence of the accuracy of latent fingerprint comparison. Australian judges are yet to receive an indication of the error rate, or information about limitations and uncertainties that have come to be notorious among attentive scientists. (3)

This research is revealing because the record demonstrates that trial safeguards did not encourage or enable lawyers to identify, explore or convey epistemological problems with latent fingerprint evidence and the procedures used by latent fingerprint examiners. This failure was not some isolated mistake or aberration. It has persisted for more than a century, while latent fingerprint evidence was presented (by prosecutors and fingerprint examiners) and understood (by defence lawyers, judges, jurors and perhaps defendants) as inviolable proof of identity. It persisted as authoritative scientific organisations began to question latent fingerprint evidence and its legal reception as categorical evidence of identity.

A Some Notes on Methods

This article is focused on challenges to latent fingerprint evidence that were recorded in law reports or 'published' on electronic databases. (4) While some of the challenges to latent fingerprint evidence may have been overlooked through this orientation, it offers the tangible benefit of presenting and reviewing materials that were (and are) readily available to generations of lawyers and judges. (5) The decisions retrieved embody legal authority and legal knowledge. There may have been sophisticated methodological challenges to latent fingerprint evidence that were not reported, but, for reasons that will become apparent, that seems unlikely. Moreover, to the extent that insights or sophistication were not reported, they appear to have been lost. We might reasonably wonder about the existence of knowledge that is not conspicuous in the reported decisions and seems to be unknown to generations of lawyers and judges.

Secondly, this article moves beyond the law reports and draws upon mainstream scientific research in order to enhance understanding of latent fingerprint evidence. …

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