Documentation of the Basis for Conclusions

[Heather Baxter]

During a recent training course, the topic of the documentation of the basis for conclusions was discussed. I was wondering how examiners are documenting the basis for their conclusions.

At my agency, we have a lot of documentation for the analysis of the latents and the exemplars. But, besides stating that we have used certain levels of detail in coming to a particular conclusion, we don't document much more directly regarding the conclusion itself.

How are you documenting the bases for your conclusions? I am hoping to get some verbiage examples to share with my coworkers.

Thanks in advance.

[Charles Parker]

Heather, in just speaking for me I am not sure this is going to help or hurt or whether it will bring out a more through discussion:

I document observations. My conclusions are reached by knowledge, training and experience on what those observations mean.

I think the basis for your conclusion is your observations so documenting the basis for your conclusion is really just documenting your observations.

I have wondered for several years how someone can document the mental process without bogging down in heavy rehetoric of cognition.

As much as we would like to float around the lofy pinnacles of science there in the clouds the bottom line is we have to communicate with Courts, Juries, Investigators. It might be different if the only people we had to talk to was each other (how boring).

OK---let us see how many might respond.

[Ernie Hamm]

This is material I have used with a slide in a presentation involving another area of comparative examination, but is still valid for latent prints:

“…comparison is the intuitive appraisal of the complex shapes and contours of the characteristics…”, Harold Tuthill, “Individualization: Principles and Procedures in Criminalistics (1994)

Individualization/Identification??? (paraphrasing an opinion on another issue) is, “…hard to define, but I know it when I see it…”, Potter Stewart, Associate Justice of the US Supreme Court, Jacobellis v. Ohio (1964)

It works for the high court!!!

[Ann Horsman]

Ernie, those are excellent!

[Terry A. Smith]

[quote="Heather Baxter"]How are you documenting the bases for your conclusions? I am hoping to get some verbiage examples to share with my coworkers.quote]

Hi Heather,
Assuming you mean identification conclusions, I'm not sure we necessarily need to use verbiage to accomplish documentation. Lets face it, the bases for identification conclusions are "agreement". I frequently do a ridge-tracing illustration (chart) in PhotoShop and append it to the file. The corresponding ridge tracing on the questioned and the known represent features in the two impressions which;
a) I observed (otherwise I couldn't have traced them) ,
and
b) I determined to have agreed - within tolerance (otherwise I wouldn't have traced them)

Each highlighted feature-set is "documented" in this way. If the agreement goes beyond second level detail (pores / shapes etc) I will do additional layers on the image to portray this agreement as well. The use of imaging to document agreement is a powerful ally in my opinion.

[Gerald Clough]

I think there are two issues to think about. One is development of demonstration material for potential use in testimony. The other is a record made so that you can say with truthful confidence what you did or didn't observe during the examination, so that you don't have to guess or make statements like, "I don't recall exactly what I noted, but as I look at it now, I believe I would have noted..." The second considers the case in which another expert is offering an analysis with different interpretations or difference confidence in conclusion. Consider another expert testifying, "I note these things that can be interpreted with confidence, and I note these things that, in my opinion, are not sufficiently clear and should not be used." If you are in position of being able to make only a general statement about carefully observing everything and...," followed by rote language about the nature of examination, it's easily implied that you depended upon what are being characterized as unreliable details. Documentation that makes it clear what was considered reliable and therefore usable and what was noted as insufficiently clear puts the argument on a clear footing and demonstrates appropriate caution and standards.

I think there was something of an over-reaction to foregoing point counts (where it was abandoned) that led to an aversion to specifying "countable" details in favor of general holistic statements. For the purpose I'm talking about, I don't think it has to be elaborate. It just has to memorialize decisions during Analysis. I look at it with something of the slant of a crime scene investigator who notes both positive evidence recognized as evidence and pertinent negatives and things noted but not used to analyze the scene. If you don't document your observation of those negatives and things interpreted as not relating to the crime, they can become issues, even if you happen to remember how you addressed them and especially if you don't.

It's well to think hard about these things. I believe I detect a growing and articulated expectation among courts that attorneys will explore the potential use of opposing expertise in fingerprint cases. This is not something examiners are accustomed to in most jurisdictions, and I don't think there's a lot of experience with how adeptly an argument casting doubt on an analysis can be constructed (or how far an expert will go to do it).

I don't think there's much point in struggling with trying to memorialize the mental process of developing conclusions. For one thing, it can just never reflect the totality. And, if you can say with certainty what data was accumulated from observation of the evidence, the mental process is indeed holistic in its use of that data and impossible to describe or analyze. I played for while with recording my running narration of examinations. Turned out I just ended up with a narrative of observing and characterizing features and noting correspondences between the images. The decision on conclusion always ended up as being the same kind of "boilerplate" language. I reverted to making notes on a "mark-up" image that I could easily interpret to say what I decided about each feature and relationship.

I do think, too, that such note making during the examination also serves to "remind the mind" what data the comparison should be limited to and helps avoid a mass of questionable details sneaking its influence into what is admittedly an ultimate decision that can't be precisely analyzed.


Earnie: I don't know that I'd like to use Potter Stewart's comment with reference to a fingerprint conclusion. He was talking about what's "obscene," and as he meant it at the time, it means what we mean. But the same court (with Potter recanting his famous statement) ultimately decided the issue depended on local community standard; obscenity meant different things in different communities; the local community didn't have to agree with Potter or anyone else. Interesting it should come up. (They really didn't want to have to hear every obscenity case. They kind of did, anyway, but on other issues.) It's kind of an analogue to what's happening in fingerprint identification arguments today.

[L.J.Steele]

Let me toss in a litigation perspective -- speaking just for myself, when I am reviewing a trial record for an appeal, what I and the prosecutor say to the Court about the facts of the case must be based squarely on the four corners of that record -- the transcribed testimony, the exhibits (both ID and full), and the court papers. If it isn't in those documents, it didn't happen. So if the testimony and exhibits combined need to be comprehensible to a college-educated layman -- while I may be well-read, and the prosecutor might also be well-read, odds are at least some of the judges will not start out versed in fingerprint issues. The more clear you can make your results and the reasons for them, the easier you are going to make things for the judicial system as a whole. And if you can make that report clear, then it will speak for itself even if the direct or cross-exam get a bit muddled.

Moving back a step, when the prosecutor and the defense attorney get your report prior to trial, they need to make a series of decisions. If the report is clear, well-written, and explains the basis for the conclusions again, in a way understandable to a college-educated layman, then it will be relatively easy for both parties to make good decisions about how to investigate the case, whether to consult a defense expert, and whether to plea the case or take it to trial.

I do a fair amount of reading and litigation with eyewitness ID and psychological issues, so I come to this topic with the fundamental beliefs that perception is not always accurate, memory is quite malleable (especially in light of post-event information), a belief that good-faith mistakes happen, and a bias towards the original documented reports/statements/notes vs. later explanations about what one might have seen, observed, or done months or years earlier.

Ideally, then, you would want a report that, if you were suddenly stricken witn amnesia and honestly could not recall a thing about the comparison, would show what you thought was important in making that decision, and what you knew about the case at the time you reached your conclusions. Alternately, what a colleage in a different lab might need to review your results -- including the reasons for them. I know that's vague and fact-specific. In some cases, the latent will be crisp, the exemplar likewise, and the report may be short. In a more ambiguous case, you may need more.

[Ernie Hamm]

Ann, thank you!! But I am only the messenger, the words belong to others.

Also, addressing the comments of Harold Tuthill: The citation was in the first edition of Harold’s work, but was left out of the second edition. I was involved in the review of the second edition and, having noted this was not included, queried Harold and was only told he was advised to eliminate the entry. That, in my opinion, was not necessary. It was, and is, a very valid statement, especially in the area in which it was presented, track identification. It can equally be extended to other areas of comparative examinations, such as latent prints; when friction ridge features can take on appearances which are more adequately interpreted on skills and abilities of the individual examiner.

Gerald, I am completely aware of the topic of Chief Justice Potter’s statement. However, taken out of that context, it is a very enlightening and entertaining statement. It is not verbose and speaks to the issue. However, it does provide a simple statement when discussions involving opinions based on comparative (not analytical, i.e., scientific) examinations are involved.

Now from the era of the dinosaur, documentation was accomplished by the following:

I conducted my comparisons (two glass method) by using a sharp pointed instrument (ridge counter or similar device) to plot my observations between latent and record. My initial agency used 3X prepared latent photographs. When I found an agreement between the record and latent, I would depressed the point on the characteristic in the latent photograph (usually in the right hand out of habit) and continue until I completed the examination. If I mentally formed an opinion of origin between the record and the latent, I would mark the area of the photograph, “Ident”, and move on. Depending on circumstances, I could turn the photograph over and document the number of points as indicated by the ‘prick’ marks resulting from the comparative examination. The photograph was retained in the case files and was documentation of the identification.

I believe similar procedures were followed by other examiners of this era.

Too simple, right.

[g.]

Depending on circumstances, I could turn the photograph over and document the number of points as indicated by the ‘prick’ marks resulting from the comparative examination. The photograph was retained in the case files and was documentation of the identification....Too simple, right.

Ernie,

Not at all. In fact, that's exactly the minimum sort of documentation I would want to see in a case, especially if the latent is even of marginal difficulty (I can live without it for a clear 30+ point HK print). I think this is the type of minimum documentation that SWGFAST had in mind for in their new documentation standards too.

Two comments: 1) as someone who has worked defense cases, I NEVER get the original case file (and they're not gonna fly me down to look at the original case file for 10 minutes)...so this documentation form doesn't show up/copy well for the record (Lisa Steele's point). 2) I think in modern times, many of us are just doing the same thing in photoshop, except we can use colors to indicate Level of detail, or confidence in a feature. And of course more complex marks may require full ridge tracings or further documentation of distortion to figure out what's going on...

I hope the affordable technology/software is not far behind, but once we all have touch screens/light pens and can just trace ridges and "prick holes" on screen with a light pen, documenting digitally what we see, this documentation will go much quicker, be easier to review, and in the end save our eyes the strain of using those good ole 3x loupes! And really we will have come full circle to the old way, but now it's documented on screen, saved for review, and still quite tactile...

Sounds like a worthy grant proposal for new equipment.

g.

[Gerald Clough]

The only thing required as a minimum is what will allow you to say with certainty what observations you depended on. Pin pricks can be the marks that do that. It's (so far) not been common to see a "post-mortem" of the examination come up in an appeal long after the trial. It can happen, and examiners thinking about documentation can consider it, if they choose. The context would, I think, be a claim that the defense attorney was ineffective for failing to seek opposing expertise, and the question would be if that would have made a difference in the verdict. I think part of trying to show that would be re-examination to the end of having their expert report that, had he been involved prior to trial, he would have produced a different conclusions AND that what was available to the defense attorney should have alerted him to the potential. (It can be any conclusion, including Inconclusive and Exclusion.) So it would probably be a case that depended very heavily on the fingerprint identification. That makes it a small subset of cases with that potential, but it's often difficult to know how the case will shape up at the time of the examination. And keep in mind that what the defense attorney is expected to do depends largely on what is available to him at the time. Documentation that the attorney can't reasonably evaluate might be seen as itself a reason he should have sought expert help. Simple identical marks on an image don't give anyone much basis for guessing how the examiner used them. Ernie's written support for the marks does make it clear how they were used. While any given expert can always oppose the conclusion, the documentation can easily be used to show that it was sufficient to decide if foregoing defense expertise was a reasonable decision and if, in a contest, the original conclusion would have stood up.

I think ideal documentation would be in a form that made it reasonably easy to be transmitted to another expert. It's a reality that attorneys and courts are balancing cost against need, and as g. said, it's a whole lot cheaper to not have an expert travel to the case file, if it should have been done on account of the nature of the evidence, higher courts are not going to take that kind of cost difference into account as a reason for not doing it. I know it seems like preparing for a not very common worst case, but it can be really messy down the line when the documentation in any forensic matter isn't the best it can be.

[L.J.Steele]

So it would probably be a case that depended very heavily on the fingerprint identification. That makes it a small subset of cases with that potential, but it's often difficult to know how the case will shape up at the time of the examination.

Not necessarily -- look at Cowans -- fingerprint match and eyewitness ID, as I recall. The print identification may be only a part of the case when it first goes to trial, but who knows what future developments might undermine other evidence.

And keep in mind that what the defense attorney is expected to do depends largely on what is available to him at the time. Documentation that the attorney can't reasonably evaluate might be seen as itself a reason he should have sought expert help. * * * I think ideal documentation would be in a form that made it reasonably easy to be transmitted to another expert. It's a reality that attorneys and courts are balancing cost against need, and as g. said, it's a whole lot cheaper to not have an expert travel to the case file, if it should have been done on account of the nature of the evidence, higher courts are not going to take that kind of cost difference into account as a reason for not doing it. I know it seems like preparing for a not very common worst case, but it can be really messy down the line when the documentation in any forensic matter isn't the best it can be.

I like this idea of something that another examienr or reasonably smart layman can read and figure out the basis for the conclusion. Makes it easier for the prosecutor, defense counsel, judges, etc.

While cost is certainly an issue on all sides, the bottom line here is the defendant's life (if not in a literal sense, a criminal prosecution is a life-altering event) and the victim's life (if time is wasted either with a challenge that that could have been avoided with better documentation, or if a mis-ID slips thru), and possibly the lives of future victims if there is a mis-ID and the real perp avoids arrest. I know the extra documentation seems like a bother -- but the stakes are very high.

[Gerald Clough]

So it would probably be a case that depended very heavily on the fingerprint identification. That makes it a small subset of cases with that potential, but it's often difficult to know how the case will shape up at the time of the examination.

Not necessarily -- look at Cowans -- fingerprint match and eyewitness ID, as I recall. The print identification may be only a part of the case when it first goes to trial, but who knows what future developments might undermine other evidence.

As we know , even the most trivial things can become issues. While they're often not powerful fact issues, they have to be dealt with if they're not to become powerful by default. You can generally find some accredited expert to say that the item containing no useful information and that was not much addressed initially because it was easily recognized as nothing is loaded with potential. Since the jury doesn't return a checklist of what all they considered and what they thought mattered, it kind of becomes a matter of trying to get the court to guess in your favor. But yes, fingerprint evidence may look like just icing on the cake initially and end up being the only surviving (legally) credible evidence in the end. And how important the fingerprint evidence becomes is something the examiner cannot control. But absolutely solid fingerprint evidence can be the salvation of the state's case. You can easily have eyewitness evidence rendered unreliable or destroyed altogether. You can have an inadvertent or willful misstatement on the stand not picked up during the trial because neither attorney caught it, but counsel on appeal did. A fingerprint identification still has that great power and can salvage the whole case if it holds up when other identifications become doubtful or even when there's a later "confession" by another offender with nothing to lose. It's just a business where, so far as the case is concerned, there's no such things as doing too much.

[Neville]

Sorry but I am a little confused. Do you document the initial ident if so do you produce in court fingerprints relating to the previous arrest, is this not prejudicial to the accused in that you are introducing previous convictions?

[Gerald Clough]

In the first phase of the trial, the presentation of evidence to decide guilty or not guilty, information about prior acts can be revealed by the state only under very particular circumstances. Incidental or explicit exposure to the jury of prior offenses is generally not allowed. Any materials used in demonstrations have to be redacted to remove any of those references. There would be no need to avoid any reference to the circumstances of how the record came to be made. It will be redacted if the report becomes evidence at trial. There have been mistrials where the prosecutor or a prosecution witness inadvertently referenced a prior. The rule can result in some odd dancing around issues sometimes. It would be perfectly okay for a defense attorney to solicit the information that fingerprints can be obtained in many ways. They have to be a bit careful about how they ask, so they don't open the door themselves to prior arrests or themselves induce in the jurors' minds that there's something interesting going on there. They should not, for instance, ask a state's witness why the police had the fingerprints to begin with. (That would likely be an appeal issue if it happened, with a claim that the attorney was ineffective.) Once they open that door themselves, it's up for grabs. On occasion, the defense does bring it up as a strategic move to complete some defense theory.

Not being familiar with NZ process, I'll point out that U.S. trials are generally bifurcated, essentially two trials, one on guilt and another on sentencing. The defendant may choose between one or the other being decided by a jury (same jury in both) or judge, or both being decided by either. A lot of information comes in during sentencing that is strictly forbidden during the first phase. At that time, judgment documents from prior convictions will be introduced and the fingerprint (usually a single finger) and the ten-print record from prior prison will be the subject of fingerprint examiner testimony to show the defendant to be the same person. In cases where I have done that testimony, I was also used to read the prior records into evidence while the prosecutor made a chart of them.

I guess I would add that it may well not be necessary to testify to the initial ident, when a better record became available later, if it's a simple question of sourcing the latent, so long as the demonstration was made with what was used to do the examination that was being testified to. The initial ident could become a separate issue of whether it was accurate, but I can't think off hand of many ways it could become important.

[L.J.Steele]

Sorry but I am a little confused. Do you document the initial ident if so do you produce in court fingerprints relating to the previous arrest, is this not prejudicial to the accused in that you are introducing previous convictions?

Usually I see reports with something cryptic like Latent #2 was compared with Exemplar #4 and was determined to be a match. (I work in appeals, so I'm often working with cases that were investigated 3-5+ years ago and tried at least 1-2 years before I see the file, so it takes a while for changes in format to cross my desk.) Sometimes the charted enlargments come in, sometimes the underlying inked exemplars (I haven't seen a livescan case yet, oddly enough.) Usually these are sanitized to avoid any mention of when the exemplar was taken or for what purpose, just to avoid the prohibited prior misconduct/bad act evidence.

OTOH, for investigative purposes, I may want to know whether the information YOU saw included the defendant's prior record to consider whether that may have created a subconscious bias. If the examiner was aware prior to reaching and documenting a conclusion that the exemplar was from a culprit with a long history of the same offense, I'd want to know that.

The rules on sentencing evidence are different from trials, and capital sentencing (death penalty hearings) are different from normal sentencing. Usually, there's no disputes about the genuineness of the exemplars, so their exact source isn't revealed to the jury.