False Dichotomy in Art Authentication
Forensics and Informed Intuition Don't Have to Fight
by
Cindy Ellen Hill, Esq. for Fine Art Registry™
Blame it on television. Millions of Americans watch those crime shows, the ones in which earnest lab techs on a mission to protect the innocent routinely leave their hermetically sealed lab environs to traipse about the crime scene. Thanks to their brilliance and the wonders of modern science, they manage to locate a clue. Back at the lab, clever forensic science triumphs over blunt criminal bravado, and the forgotten fingerprint, paint chip, carpet fiber, or blood stain yields the lab result that nails the bad guy and sends him to jail for fifty consecutive lifetimes.
Cheers all around, cut to snack food commercial.
"...forensic evidence works together with other kinds of logical proof..."
Unreality Crime TV
I hate to be the one to burst the bubble, but believe it or not, despite its being called “reality TV,” real life doesn’t really work like that, at least not the vast majority of the time anyway. Forensic science is an important tool in criminal justice – both for providing evidence consistent with guilt in some cases, and just as importantly, to rule out suspects or defendants and provide evidence consistent with innocence in others. But the cases where a piece of forensic evidence is the sole ‘clincher’ that puts men behind bars are fewer and farther between than you might think. Instead, the forensic evidence works together with other kinds of logical proof – eye witnesses, the jury’s judgment about who is lying and who is telling the truth, and the over-arching question: Does it make sense?
Let us take the case of fingerprints. When the newspaper headlines scream “Jonesville Bank Robber Nabbed: Fingerprints Found at Scene,” most folks consider the whole case a done deal. They’ve got the guy’s fingerprints, so what is there left to argue about?
Think about that for a moment. If your bank gets robbed, your fingerprints are likely to be found all over the counter, as are those of all the other customers, tellers, managers and cleaning staff. Does that mean you were the robber? Of course not. It merely means you were there. The fingerprints trumpeted in the headline might simply be of another customer as well, a point of confusion that might be compounded when an eyewitness points out the customer’s photo or describes his face to a police artist – but in the terror of being involved in the robbery, identified a fellow patron of the place instead of the man who committed the robbery.
"...one piece of evidence [must] be considered along with all the others."
His fingerprint on the counter is merely one piece of evidence to be considered along with all the others.
Black and White Proof in Shades of Gray
It is often the same case for other types of forensic evidence. DNA evidence is most often offered by the prosecution in rape cases. But in rape cases that go to trial, a common point of argument is not that the defendant is the wrong person, but rather that the sexual act was consensual rather than compelled. The DNA evidence proves there was sexual contact – but doesn’t speak a word as to whether that contact was welcomed by the alleged victim or not. The DNA evidence is important, but again, only when considered as a whole along with other evidence and the application of common sense.
And quite frequently, the forensic evidence is a whole lot less black-and-white than it appears on those television shows. The fingerprint might be on the beer can that was found along the roadside near the scene of a crime – but the beer can might have been tossed out of a passing car without any connection to the crime at all. The DNA evidence might be on sheets in a house where the defendant had been house sitting a week before, and although he had guests over without permission in the homeowner’s absence, he could be guilty of bad manners and laundry habits, but not necessarily of raping and killing the homeowner a week later. The paint chips or carpet fibers could have been tracked in by a workman walking through to price out a project. To be useful, forensic evidence must be placed within a context and evaluated by common sense and in light of other evidence.
Forensic evidence must also be properly gathered and the necessary testing run under strict, clean laboratory conditions in accordance with protocols that have been developed by the leading scientific certification organizations to a point where they meet with court approval for fulfilling certain standards of reliability. Sloppy work by improperly trained or untrained personnel, faulty and outdated equipment without proper calibration standards, and tainted or mishandled samples lead to worthless test results. Garbage in, garbage out.
The “GIGO” phenomenon is exacerbated by the work of “scientists” with a vested interest – emotional or economic – in the outcome of the result. Despite the TV shows, the lab tech who is hell-bent on nabbing a particular bad guy and out looking for evidence of that person’s guilt is not the proper person to be running forensic testing on evidence from that crime scene. His judgment is, quite simply, too likely to be skewed by his own desires and ambitions. Like a dying man crawling through the desert after his desperate mind creates the illusion of an oasis, sometimes members of the prosecutorial team who really want the forensic evidence to support a case against a particular guy manage to see it that way. The partial fingerprint that does not contain enough forensic information to meet appropriate standards, or overloaded DNA slides with samples that “bleed over” into triggering categories of results which are not actually present, would be disregarded by the impartial scientist as inconclusive, but might be used by the person with a pre-conceived notion to support their foregone conclusion. It’s not that they are necessarily bad people, it’s just human nature.
"Forensic science also changes over time. A 'definitive' answer today is not necessarily a definitive answer tomorrow."
Forensic science also changes over time. A “definitive” answer today is not necessarily a definitive answer tomorrow. The Innocence Project, for example, www.innocenceproject.org, involves volunteer attorneys and others working to revisit cases where people were convicted and imprisoned in at least partial reliance on now-outdated forensic evidence. Re-testing the evidence using vastly improved modern techniques has, in a number of cases, led to the release of persons who had spent decades behind bars for crimes they did not commit.
A typical example would be a case where a jury heard evidence of blood testing that said the blood found on the murdered victim was of the same type and same general grouping as the defendant, which meant the defendant “could not be ruled out” as the murderer. The jury would have also heard eyewitness testimony that, say, a man of the same build and appearance as the defendant was running down the street a block away a few minutes after the shots rang out. And
the jury probably heard but did not believe the defendant’s testimony that he was running home, realizing he was late coming in from playing poker with friends, and afraid his wife would be mad at him. But today’s considerably more detailed DNA testing demonstrated that the blood sample, while of the same general group, could not possibly have come from the convicted man. Despite the jury’s informed instinct – which was based in part on the inherent frailty of the forensic evidence that existed at the time of trial – today’s forensic science demonstrates that instinct was in error. In such a case, forensic evidence can indeed play a critical and decisive role on the ultimate question of fact.
But what, you might well legitimately ask, does this have to do with art?
Good question. Answer: lots.
Forensic Art Authentication
Forensic science has exploded as a tool in art identification and authentication in recent years, setting off a wave of argumentation between those who view “hard science” as the modern, incontrovertible method which automatically trumps connoisseurship and informed intuition, and those who believe that no witchcraft of chemical brews and computer generated centrifuge data could ever replace the skilled eye and instinct of an art-world guru. But much like the hot physics-realm argument over whether light is comprised of particles or waves, the positions need not be mutually exclusive. Each is useful in certain contexts, and comprises different ways of describing the phenomenon – a piece of artwork – which happens to stand before us. To say that if you advocate the development of forensic science in art research means that you are not an ‘art lover’ is simply a false dichotomy. One can both appreciate art and respect science, and find that both are useful tools in seeking the truth about any given work of art.
"Science has long been used in art research."
Science has long been used in art research. Some common examples include X-raying paintings to determine whether there are pictures underneath the surface pigments, conducting chemical analysis on paints, microscopic examination of the patina on sculptures, and carbon-dating wood on which very old paintings have been found. But more recently, techniques more similar to those shown on those television crime shows have been making art-world news. These include more advanced paint and materials testing as well as fingerprint identifications and even DNA testing.
One fascinating example of a confusing collision of informed intuition and science was the widely reported story of the Metropolitan Museum of Art’s famous Greek Horse. The little bronze was long the de facto logo of the Met, but, as the Met’s former director Thomas Hoving reports it in his book, Making the Mummies Dance (Simon and Schuster 1993), one of the Met’s most knowledgeable administrators who had previously correctly identified several other forgeries at the museum, Joseph Noble, noticed a line running down the center of the statue, and declared it a fake, since the line was inconsistent with Greek casting of that period. He even went so far as to name the individual he believed responsible for the forgery. But after the press hoopla was over, a lower level conservator came forward with a distressing bit of missing information: the horse had been heavily coated in order to use it to cast reproductions sold through the museum store, and that was the cause of the line on the surface. Over five years later, thermoluminescence imaging revealed an unexpected third alternative: the horse was ancient, but it was not Greek –it was actually a later Roman fake of a Greek original, made for what Hoving calls the “gullible Roman art market” during the time of Hadrian. In this case, two sets of beliefs based on knowledgeable connoisseurship were shown by scientific testing to both be incorrect – and ironically both be half-right at the same time.
At least one consultant who offers artwork-opinions-for-hire – Peter Paul Biro of Montreal – now refers to his as work as “forensic” in nature. But what does it mean to be “forensic”? The American Heritage Dictionary defines forensic as: 1) Relating to, used in, or appropriate for courts of law or for public discussion or argumentation, 2) Of, relating to, or used in debate or argument i.e. rhetorical, and 3) Relating to the use of science or technology in the investigation and establishment of facts or evidence in a court of law.
It is this last definition which relates to ‘forensic evidence.’ It is evidence which meets the standards of admission into a court of law, be it in a civil lawsuit or criminal prosecution. Courts have very stringent standards for the admission of scientific evidence – standards which do not appear to be met in many of the instances presently being bandied about the media as claims of “forensic science” being applied to art authentication. A court would never allow someone to present evidence of a scientific matter without it first being proven that the person testifying has the proper credentials, training, and certifications, and that the evidence being presented meets required legal “indicia of reliability.” Since forensics are new to the art world, most artwork owners, collectors, and even museums and galleries are not yet acquainted with what those acceptable standards are for each type of forensic evidence. Nor has the art community begun to develop ways of thinking about and resolving instances of apparent conflict between scientific evidence and informed intuition. Instead, thanks to those flashy TV shows, much of the public has been quick to accept the headlines regarding art identified by self-proclaimed forensic art experts to be the “done deal.”
The popularly reported current matter of Peter Paul Biro’s reported authentication of Teri Horton’s alleged Pollock painting highlights the confusion over what constitutes forensic scientific works, as well as the intersection between connoisseurship and science. The painting referred to as “Teri’s Find” has been the subject of a documentary film, Who the #$&% Is Jackson Pollock?, and been featured, along with Biro’s claimed identification, on television shows from Geraldo to Sixty Minutes. The public, riding the wave of media enthusiasm over a rags-to-riches story, certainly wants to believe that retired truck driver Teri Horton’s thrift-shop find is really a Pollock worth millions. Fans of shows like CSI have embraced the assertion that Biro’s fingerprint and paint chemistry evidence locks in the Pollock identification. Yet the informed art connoisseurs that have weighed in, including those whom the documentary takes strong pot-shots at, speak against the probability of the painting being Pollock’s. Savvy artists and collectors have also expressed sincere doubts in blogs and web postings. The media and public have discounted their informed opinions, latching on to the claimed “forensic” testing of the painting.
But does the testing reported by Biro regarding Horton’s painting really meet the standards of forensic science? His
original materials and protocols have not been released for peer review. He does not appear to claim the kinds of credentials typically presented in order to qualify for court-approved expert status in forensic matters such as fingerprint testimony. The few images which Biro has published in support of his claimed forensic identification have been roundly discounted by independent reviewers who actually have the necessary credentials and have been qualified to testify as forensic identification experts in courts of law. But a general lack of understanding on what it takes to constitute forensic scientific conclusions, coupled with a wave of media hype over the colorful nature of this particular painting’s emergence, have left the public without a way to meaningfully assess either the connoisseurship or the science at issue.
In an upcoming series of articles and video productions, FAR will be continuing its exploration of the role of forensic science in art identification and authentication, looking at a series of case examples where science and connoisseurship meet on a canvas battlefield. Will the two approaches fight it out, or learn to work together in the search for truth in art, for the benefit of all of us for whom art is a critical part of our cultural heritage?
Stay tuned.
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— by Cindy Ellen Hill, Esq. | June 26, 2007 | Print Version - 
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