Pro's and Con's of Using Case Latents for Court

[kevin]

Sorry for bumping this one, digging up the dead horse to beat it once again (so to speak)...

Has anyone ever been asked to produce a charting for negative testimony?? Lisa and/or Gerald may have the best answer for this next question; would you consider using a generic charting to be unduly prejudicial? Or unduly prejudicial if you are not presenting it along with a charting of the latent and known??

(and I'm speaking more in terms of presenting a generic chart rather than a an actual charting of the case latent)

[Michele]

I've never been asked for a chart for negative testimony but if I were, wouldn't I have to make a chart with all the fingers and the palms? That would be a big chart!!

[Pat A. Wertheim]

The case of Shirley McKie was, of course, one in which a negative chart was used. At the trial in 1999, I used enlargements with four acetate overlays on each enlargement (you can't just run lines with numbers to nonexistent points). Only one finger was necessary to prove the latent was not Shirley's because the SCRO "identified" her left thumb. The rest of the fingers and palms and toes and plantar surfaces were never an issue.

Carey Chapman and I discussed this back in 1989. When Carey testified in court to no latent print identifications in a case, a defense attorney on cross examination asked him if he couldn't have charted the non-idents if he had wanted. Carey had to agree that he could have. Our policy was to prepare court charts only when requested, not in all cases. After that, for a while we expected that defense attorney to request "non-ident charts," but he never did. Still, when the McKie case came up, the discussions Carey and I had were on my mind while I prepared the "non-ident" charts for use in that case.

[Michele]

Pat,

In the McKie case, I would argue there's a difference between showing an identification isn't valid and showing the latent wasn't made by that person (excluding a finger compared to excluding a person). To really exclude Shirley, I would need to compare the latent to Shirley's MCP's.

[Pat A. Wertheim]

To really exclude Shirley, I would need to compare the latent to Shirley's MCP's.

True, of course, and I did that. But the SCRO readily excluded nine fingers and both palms, at least by ommission from their testimony. The only finger at issue in that case was the left thumb so that is the only one we had to show in court was not Shirley's print.

I am trying to imagine the circumstances in which a prosecution expert might have to testify to an exclusion and chart it. We do testify to exclusions, but I cannot remember ever having a defense attorney contest such testimony. Therefor, there has never been a need as a prosecution witness to "chart" a "non-ident" or exclusion.

As a defense expert, if the prosecution has presented an exclusion, I cannot imagine a situation in which I would need to chart their exclusion if I agreed with it. If I felt the exclusion was erroneous, then I would be charting an identification and that would be just the one finger (or one chart for each identification). But as a defense expert, if I am challenging the prosecution's identification (as in McKie and again in Asbury), then I would need to chart only the exclusion the prosecution has erroneously presented as an identification.

In other words, I agree that to actually make an exclusion, I have to compare everything. But to chart an exclusion as a defense expert contesting a prosecution identification, I only need to chart the one they got wrong.

[Gerald Clough]

I have one on the horizon where it's possible that a demonstration might one day need to be made. It would be more to the point of showing that the latent had no value. In a dispute over whether or not a latent is sufficient to exclude the defendant or to identify some purported unknown actor, without a graphic demonstration, it becomes a matter of the fact finder just hearing two different opinions from two similarly credentialed experts. It's not a charting of a latent to a record, but it still involves showing the basis for the opinions on the interpretation of what's observed. I cannot think how the fact finder could otherwise choose which to find more credible. It would be interesting, because it's kind of the reverse of what we usually think about. We're usually oriented to showing how we came to interpret something poorly impressed to have some reliable character. Of course, an opinion either way can be contested. Whether you think of it as showing some features can be used or you think of it as showing they can't be used is just a matter of viewpoint.

Now laws vary among states, but where I've operated I don't think a defense attorney has any standing to demand the state's expert produce some specific demonstrative evidence that doesn't already exist. He would need to have his own expert do that, although, once that happened, the state may well have to do their own. And I'm pretty sure it wouldn't be an inherent right in federal matters, although the judge can pretty much demand what he wants.

Lisa maybe would be better to address the question about a generic chart being a problem. I could imagine some vigorous argument along the lines of whether the chart that merely demonstrated how in general two impressions are compared unduly implied that, for the expert, there was no difference between the case prints and the generic case - that if the jury can follow the expert in the generic demo, they should trust that they would also agree on the case prints, if they were to see that demonstrated. It's an interesting question. Some generic demonstration material doesn't feel to me like a problem. A serologist might well use various graphics to explain DNA analysis and interpretation. But that's not demonstrating an actual generic analysis. I guess the right answer is to be guided by who has to live with the result, the prosecutor. But I can think of a number of potential problems. If it's a nice clear latent, it might be said to imply that they're all that easy. If the generic latent had a full range of clarity, right down to too poor to use, you could get into attempts to explain why this detail and not that, and, like sufficiency to individualize, we have no well-defined explanation, and you can end up either admitting that another expert could have a different view of the less clear details or saying there can be no difference and then having the opposing expert say you're being silly, because he does indeed have a different view, and your interpretation is what it is because you bias everything to the state's benefit.

(Yeah. I know this sounds more hard-fought than most examiners see. But the times they are a-changin'.)

[kevin]

I am trying to imagine the circumstances in which a prosecution expert might have to testify to an exclusion and chart it. We do testify to exclusions, but I cannot remember ever having a defense attorney contest such testimony. Therefor, there has never been a need as a prosecution witness to "chart" a "non-ident" or exclusion.

Thanks for the input all - I'm thinking there isn't much of reason to chart a non-ident as a matter of routine. I wanted to nip in the bud a helpful suggestion I got to use a non-ident chart There really doesn't appear to be any need for it unless there was a difference of opinion like in Pat's case or an appeal.

In the future I might have to write up something to this effect, including the use of generic charts vs latent charting(?), for ye ole procedure manual so I appreciate the feedback....