Art Forensics #1 - Introduction

Introduction

The Daubert v. Merrel Dow Pharmaceutical ruling regarding Forensics provided us with a glimpse of what the courts will and will not accept in terms of so-called expert opinions regarding evidence. The Killian CBS episode gave us cause to think about what constitutes authentic data or evidence and what factors surround the process of securing such evidence. The conclusion reached by the NAS in February of 2009 is that much is lacking in the way forensic facts are established and much more has to be done to provide any semblance of scientific rigor in the pronouncements of those deemed to be forensic scientists or detectives. A few months later in 2009 two of these "detectives" (they call themselves detectives but are not police detectives) announced the opening of their forensics partnership dedicated to the study of authenticity in arts. One of these detectives talked about using subjective or non-scientific parameters to draw forensic conclusions. This move was exactly what the scientific community was taking issue with and noteworthy in that either the scientific community is not reaching its practitioners, or its practitioners are clueless in terms of what constitutes genuine scientific practice. To understand the present predicament of forensics, let us discuss the nature of forensics, how it is processed, background of the problems, the focus of the NAS complaint, and the steps necessary to bring science into forensic science.

Forensic Science: A Concept Searching for a Clear Definition

One of the first problems with forensic science has to do with the fact that the concept has many definitions. To begin with Forensic Science is also known as Forensics. This nomenclature is obtuse in that in any field, the subcategories are usually structured under an "ology" - psychology, physiology, sociology, and so on. It almost seems ludicrous to identify a scientific discipline as an "ics"-physioics, psychoics, etc. Further, forensic science is used as a methodology in legal matters. Here questions of evidence/data to support a given determination in a court milieu are identified, i.e. fingerprints, bullet markings, and paint pigments are presented to serve as an identification point in relation to a given piece of matter. For example, the fingerprints on the gun matched the fingerprints of the alleged perpetrator, or the prints on the paint can matched the prints of the artist. Thirdly, forensic science can be understood as the norms flowing from the use of the scientific method in establishing the reliability and validity of a given approach to truth claims. Thus, the first issue with forensic science is that by virtue of its many meanings/ definitions/uses forensic science has become unintelligible. The fact that forensics finds its methods presented through the medium of television further obfuscates its message.

Forensics and its Fine Art Appendages

For those of us in the world of art fraud investigation there exist four areas of forensics of particular concern:

1. fingerprints,
2. material medium dating,
3. questionable documentation
4. graphology or handwriting analysis.

Fingerprinting: Some of the so called art fraud detectives have focused on fingerprints as a data point to establish that a given work is from the hand of an artist. One particular work of Jackson Pollock was purportedly from his hand because a fingerprint on a paint can matched one on an alleged Pollock canvas. Real police fingerprint experts found that the fingerprints were of questionable authenticity.

Material Dating: From an analysis of paint pigments, or canvas type, it is possible to state the date of creation of a given work of art. Home Depot paint pigments on a 1700 century canvas would be evidence to support a forgery.

Questionable Documentation: Documents as evidence to demonstrate ownership of a given work may be analyzed in terms of font types, spacing of letters, typographical technologies, and so on. The Killian episode noted after analysis that it was not possible that the document could have been developed in a given time period.

Graphology: In determining the authenticity of any work of art, examiners look to the signature on the work to match the known signature of a given artist.

Daubert v. Merrel Dow Pharmaceuticals - The Daubert Standard

The Supreme Court in 1993 issued a standard or legal precedent currently referred to as the Daubert standard which lays out the necessary criteria to allow an expert to provide testimony in a federal court. As gatekeepers, trial judges look at various criteria in allowing forensic data to be admitted in the court proceedings. Judges focus on relevancy, empirical testing, peer review, falsifiability, error rate, and consensus of opinion. Thus, an expert stating that he "feels" or intuitively he knows the evidence to be true without other experts confirming such statements would be subject to a rejection. Further, if the expert's evidence deals with psychological depression and the issue at trial deals establishing IQ levels, such evidence might be dismissed as irrelevant. Some have criticized Daubert in that judges are not capable of their gate keeping role since they have not been trained in scientific method analysis.

In 2000, Daubert, rather than moving forward via the scientific method, was watered down somewhat into a less strict interpretation which allowed expert testimony to be based on facts, reliable principles and methods, and that the expert has developed his conclusions based on the methods and facts. Supplanting the scientific method with ambiguous methods and non-peer reviewed facts has brought about the current complaint by the scientific community.

The Current Complaints against Forensics

The NAS noted that there were several areas of concern in the way evidence or forensics operates in the legal system. (The focus was on crime labs but is applicable to forensic activities in general.).

1. The report says such analyses are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.
2. Fingerprint processing and analysis by the FBI has serious flaws.
3. Chemical signatures in bullet tracings matched to suspects were so bad that 200 individuals were notified of problems.
4. The field suffered from a reliance on outmoded and untested theories by analysts who often have no background in science, statistics or other empirical disciplines.
5. Instead of accepting scientific protocols in the carrying out of forensic expert's activities, such experts adopt a position of conflicting agendas.
6. There is little evidence of accuracy or reliability.
7. Subjectivism and biases are part of analysis.
8. There is no mandatory certification.
9. There are no scientific studies to determine validity of evidence.
10. There is lack or absence of quantification in forensic studies.

Forensics and Art Fraud

The significance of the NAS report as it relates to fine art forensics is that as bad as it is in the crime labs, where some attempt is made to produce accurate results, outside the lab so-called experts operate in the absence of any such constraints or protocols. The current art forensic detective seems to believe that all that is needed is a camera tied around one's neck to produce valid forensic evidence. Individuals pop up and assert that they are art fraud detectives yet like their crime lab counterparts, there is no evidence to suggest that what they are doing is sound valid and reliable, or that they are certified do so.

Future articles will focus on the above appendages or sub-categories of fine art forensics to determine their weaknesses, strengths, and methods for improvement.

— by Dr. John Daab CFE, CFC | July 13, 2009