Latent justice? A review of adversarial challenges to fingerprint evidence

Abstract

This article provides an overview of recent research on latent fingerprint evidence featured in reported legal decisions from England and Wales, Australia and New Zealand. The research casts doubts on the effectiveness of adversarial criminal procedure. Rather, than engage with the methodological foundations – e.g. validity and reliability – and the actual abilities of fingerprint examiners, for more than a century, challenges were based on legal considerations and the meaning of categorical identification for the specific proceedings. Lawyers challenged fingerprint evidence based on the circumstances in which reference prints were collected, whether fingerprint records were hearsay, whether relying on a fingerprint record is unfair because it suggests prior criminality, whether the jurors could make their own comparison and so forth. There is no reported consideration of the validity and reliability of fingerprint comparison, and no requirement for fingerprint examiners to qualify the significance of a match decision, even after the abandonment of point standards and the appearance of critical reports from the United States and Scotland, and advice from the Forensic Science Regulator. To the extent that they considered the admissibility and probative value of this prominent forensic science evidence, lawyers and judges relied heavily on proxies such as training, experience and long use. In consequence, the article considers how we should understand adversarial legal practice, the performance of lawyers and judges, as well as the implications for forensic scientists and their evidence.