Testimony--Any Comments

[Charles Parker]

I thought this was interesting----any comments.

2. Odom contends that trial counsel should have objected to the testimony of the crime scene investigator that a partial latent print on the handgun could have been Odom's, even though the investigator had also testified that the prints were insufficient to make an identification. He argues that counsel should have objected that the testimony was improper because it called for speculation, and that the testimony gave the jury the impression that the latent print on the gun was his. Although trial counsel stated that he "[s]hould have made an objection for several reasons," the trial court ruled that the investigator "qualified as an expert in fingerprint comparisons and was asked for an opinion. This is permissible evidence."

The investigator testified that the partial latent fingerprints found on the gun were insufficient "to make an identification with anyone." When asked whether the partial prints could still belong to Odom, he responded, "Yes, they could." Immediately following this statement, the investigator again explained that he "could not affect a match."

By stating that the fingerprints were insufficient to make a match with anyone, the investigator in essence informed the jury that the fingerprints could have been made by anyone, including Odom. In light of the investigator's testimony as a whole, we cannot say that trial counsel performed deficiently by failing to object here, or that the outcome would have been different had counsel done so. See, e. g., Brown v. State, 275 Ga. App. 99, 105-106 (4) (a) (619 SE2d 789) (2005) (no ineffective assistance where counsel failed to object to single question and answer which took place in long series of questions and answers); McKeever v. State, 118 Ga. App. 386, 389 (4) (163 Ga. App. 919) (1968) (testimony as a whole shows basis of witness's conclusion).

[Pat A. Wertheim]

IAI Resolution VII of 1979, as amended in 1980 (in part):

. . . Any member, officer, or certified latent print examiner who initiates or volunteers oral or written reports, or testimony of possible, probable or likely friction ridge identification, or who, when required in a judicial proceeding to provide such reports or testimony, does not qualify it with a statement that the print in question could be that of someone else, shall be deemed to be engaged in conduct unbecoming such member, officer or certified latent print examiner . . .

I don't see that LPE Odom did anything wrong. Quite the contrary, I believe he testified as he should have in light of the questions asked. It sounds to me like the appeal was just a last ditch grasp at straws.

[Gerald Clough]

It's pretty typical of the sort of ineffective assistance claims that are tried when there's nothing else to try. I don't know if the court gave it much discussion, since it's a pretty trivial decision, but I could imagine consideration of the fact that the question and answer was necessary to dispel any notion that failure to match the print to the defendant meant it wasn't his. An objection to that question wasn't going to be sustained, and the examiner made an effort to see that "could be his" doesn't mean it was.

The "speculation" claim is maybe interesting. Experts get to answer hypotheticals. It would have been objectionable if a lay person, i.e. detective, had made the same statement. I think most attorneys would say the testimony of the examiner to "could be" is something they would have objected to, but it's not clearly ineffective to fail to object.

The prosecutor could have played it much meaner by soliciting the point that "Odom could not be excluded as the source." That's more than just semantics; it's more technical sounding language and in fact is exactly the language that immediately precedes the dropping of the lethal DNA statistical bomb. And an objection to the "excluded" question and answer wouldn't have been sustained either, and the appeal outcome would have been the same.

[Boyd Baumgartner]

I like Tuthill's explanation of the Privileges of the Expert Witness, in "Individualization. Principles and Procedures in Criminalistics" Pg 144

In the introductory part of our discussion about expert testimony we encountered the statement that, as experts we are "treated differently (in a legal sense) from ordinary witnesses."

Now is the time to consider in what manner we can expect to be treated differently. We will find that we have four privileges that are not normally accorded to the non-expert:

1. We may express opinions.
2. We may deal with hypothetical questions.
3. We will not be limited to yes/no answers to as great an extent.
4. We may use information from authoritative texts or articles or information gained during formal training to present information of which we have no direct knowledge.

[Michele]

. . . Any member, officer, or certified latent print examiner who initiates or volunteers oral or written reports, or testimony of possible, probable or likely friction ridge identification, or who, when required in a judicial proceeding to provide such reports or testimony, does not qualify it with a statement that the print in question could be that of someone else, shall be deemed to be engaged in conduct unbecoming such member, officer or certified latent print examiner . . .

2 questions,

What if you're not given the opportunity to qualify it with a statement that the print in question could be that of someone else? Sometimes it's difficult to tell if the person testifying is cut off by the attorney if you're just reading a transcript.

Is this a resolution that people follow because the community agrees with it or is it followed simply because it's a directive? In my opinion, there's a big difference between stating that something is possible and something being likely. I really don't understand the problem with testifying that something is possible. Can someone explain this to me?

[Gerald Clough]

I note that the resolution talks about "possible identification" and "probable identification." The examiner in the cited case didn't testify about "possible identification." He testified to the fact that, after the examination was done, among the possibilities remaining was the possibility that the defendant was the source. To put it in perspective, although all examinations begin at "possible," it seems entirely wrong to say that all examination begin as "possible identifications." Once you add the "identification," you've expressed a favored result, some kind of likelihood. But that is not at all what the examiner did in the cited court case. He simply stated a truth, that one possibility remaining after his examination was that the source still could be the defendant.

As I read the resolution, intentionally or not, it was very conservative, addressing what I see as culpably misleading language implying some likelihood of specific identification but for some lack of data. And in that case, they properly require the qualification that it could be anyone. I think few examiners would testify to "possible identification," and so it doesn't seem to me to be something that's going to have to be invoked very often. And I would strongly argue that a plain statement of the truth that if I can't identify and can't exclude, the initial default condition that the defendant is a possible source still exists is not the same as concluding a "possible identification" and is not subject to the resolution. It would be trivially silly for me to actually state that I began the examination with the defendant as a possible source, but I (being an expert) could legally do so, and if the examination turns out to contribute nothing more than that (no identification and no exclusion), I'm left still stating the same truth.

And therefore, I can't be trapped into violating the resolution by being cut off during testimony, because I'm never going to talk about a possible identification anyway. And they can't force me to respond to a question about "possible identification" or "probable identification," because I don't know what those mean.

[Patrick Warrick]

Regarding being cut-off during testimony...I think anyone who is being cut-off by the attorney easily has the opportunity to address the judge and explain that you are trying to answer the question adequately and are being cut-off. This has happened to me numerous times, and I am sure to most others who give damaging testimony for a client, but I have always been allowed to answer fully once I addressed the judge. I can't imagine a judge not allowing you to answer fully.

[Pat A. Wertheim]

Regarding being cut-off during testimony...I think anyone who is being cut-off by the attorney easily has the opportunity to address the judge and explain that you are trying to answer the question adequately and are being cut-off.

A judge has an ethical obligation to prevent misleading testimony from making it into the record. Instead of appealing to the judge just that my answer is incomplete, I will turn to him and say, "Your Honor, I am afraid that if I cannot finish answering the question, the partial answer will mislead the court. I have to give a little more explanation." At that point, if the judge allows you to be cut off, he is knowingly allowing misleading testimony. That alone may be sufficient grounds for appeal. But if you use that answer, you will also send a strong message to the other attorney that this issue needs to be brought back up on re-direct. Those three words in your appeal to the judge -- mislead the court -- are magic when it comes to getting your whole answer in.

[L.J.Steele]

[quote="Pat A. Wertheim]Those three words in your appeal to the judge -- mislead the court -- are magic when it comes to getting your whole answer in.[/quote]

But to be used sparingly! They are also, in effect, an accusation that the attorney who did not let you finish your answer is trying to mislead the jury. If done in front of the jury, it risks a motion for mistrial or other strong steps by the judge or counsel if they think you're making the claim inappropriately. You've also put the judge on the spot, they don't like that and it may come back to bite you later, if the judge thinks you've used this trivially.

Also, nobody likes a wiseass -- and you are likely to be in front of the same judges and attorneys many times.

The judge may be thinking about it this way -- in effect, you are asking the judge to ask you a follow-up question. Could/should the judge do so at this stage? Judges can ask questions, but only in relatively rare situations. For example, the CT law on this is that the trial judge can, from time to time, intervene in the process of a trial. State v. Fernandez, 198 Conn. 1, 11, 501 A.2d 1195 (1985); see also ABA Standards for Criminal Justice § 6.1.1 For example, under limited circumstances, a judge may questions a witness, to elicit relevant and important facts." (Internal quotation marks omitted.) State v. Tatum, 219 Conn. 721, 740, 595 A.2d 322 (1991). He or she might intervene where the witness is embarrassed, has a language problem or may not understand a question. State v. Iban C., 275 Conn. 624, 652, 881 A.2d 1005 (2005) (defense counsel agreed that testimony was confusing); State v. Fernandez, supra, 198 Conn. 13. The judge may do so because “the alleged jeopardy to one side caused by the clarification of a [witness'] statement is certainly outweighed by the desirability of factual understanding. The trial judge should strive toward verdicts of fact rather than verdicts of confusion.” (Citations omitted; internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 769-70, 760 A.2d 82 (2000). This Court has cautioned that in exercising the trial court’s power to intervene, "there may be greater risk of prejudice from overintervention than from underintervention. While the judge should not hesitate to exercise his or her authority when necessary, the judge should avoid trying the case for the lawyers." (Internal quotation marks omitted.) State v. Fernandez, supra, 198 Conn. 11.

Unless the situation is dire, address it with the relevant attorney outside the jury's presence. Witnesses can be recalled if it is important, if the opportunity is missed on cross or direct.

[Gerald Clough]

We're not really asking the judge to intervene in any way that alters the course of the trial. While I agree that accusatory language is dangerous, the same thing can almost always be accomplished by asking the judge if you can finish giving the rest of your answer so that it's accurately expressed. Not that it's happened much, but in my experience, I haven't had to ask. I just don't stop talking if an attorney tries to cut me off, and if they try again, the judges have always told the attorney to let me finish. Of course, you can't be trying to slip in something outside the immediate scope of the question, but they don't get to "sound bite" you while you testify.

There are all degrees of intelligence and competency among the bar, but experienced attorney's don't try to cut you off unless you're really going outside the question. In my experience, that's more likely in the fictional drama than a real trial. The other attorney almost always picks up on it and begins his next question with something like, "Now, so the correct answer you were trying to give the jury when you were cut off was....?"

[Charles Parker]

I set this thread up because over the years in teaching I have on several occasions had new examiners come to me and ask about possible or probable statements in court about fingerprints. The Urban Legend out there is if they say anything that remotely smacks of possible or probable then the big bad IAI will hunt them down and sweep them out of fingerprints for good. Like I said an Urban Legend! I think a lot of that legend stems from the resolution that Pat posted.

On at least two occasions that I can remember my testimony was very close to the LPE testimony that I posted. When one is dealing with a latent print or image that is not identifiable or not comparable then I see no problem with stating that and the issue that it is beyond my ability to identify it with anyone. Could it be the suspect, sure or it could be the victim. I am talking about NO VALUE, and not Inconclusive.

Now this thread has moved from possible/probable testimony to being cut off and asking the judge to be allowed to continue; which is not a bad thing. In the few times it has happened to me I have turned toward the judge and simply asked if I may be allowed to explain further. In every situation that I can remember the judge has allowed me to continue but to keep it short. I understand what Pat has said and if he is comfortable with using the word ‘Misled’ then go for it. It is not a word I would conjure up in a courtroom as I would be uncomfortable with it. And that is what this is all about is it not, making your testimony comfortable so that you can express it in the most reliable, understanding, and accurate way.

Now I know I come off on this web site as a smart #$$@ sometimes and some may even think that I do that in court as well. I can tell you I am dead serious about court. You are testifying to something that may take away that persons liberty or perhaps their life. You better be serious and up front in court. My 2 cents.

Has anyone have any other comments about possible or probable testimony. If you follow the testimony that was presented at the beginning of this thread, I seriously doubt the boogie man will come and get you.

[Charles Parker]

I stole this from another thread. Would this testimony be considered possible or probable?

I’ve also had cases where inconclusive is my permanent conclusion. I had a homicide case where the latent print was a delta area with minimal level 2 details. This print could probably never be used to identify someone but it could be used to exclude an individual. I labeled this print to be ‘of value’ and excluded the first suspect. I was later given a second suspect that I excluded it to. Then later, I was given a third suspect that had friction ridges that were consistent with the latent print. There wasn’t enough information in the latent print to make the identification but I couldn’t exclude due to the consistency. My conclusion was ‘inconclusive’. I explained this to the jurors by saying it was similar to identifying a person in a crowd. Someone may have similarities, same color hair, same length of hair, same height, and same weight, but if these characteristics are not specific enough, you may not be able to determine if the person in the crowd is the person you are looking for. With my latent print, these characteristics are not specific enough make a determination. A lot of people may have these characteristics, just because there is consistency doesn’t indicate that the latent was left by this person… he is just one of many people that could have left it. To get my point across, I also stated that it would be very likely that someone in the court room could also have the characteristics that were in this latent print.

I do not think so. I also think that a supposed type of punishment for possible or probable fingerprint testimony be taken off the books (or resolution) of the IAI.

If you think that the resolution that Pat posted at the beginning needs to stay in effect I would like to hear your reasoning on why?

[Michele]

Charles,

Sorry to divert the conversation. The reason I asked the question was really to point out that this doesn’t seem like something that the IAI can really hold people accountable for because you may intend to add ‘the print in question could be that of someone else also’, but then the attorney asks another question (not really cutting you off) which changes your thought process and you never state the qualifying information. Would they then deem this as conduct unbecoming? I doubt it but I think it makes the IAI look less professional to have resolutions that they aren’t holding people to.

If the intent of the resolution was to say that people shouldn’t slant their testimony towards an identification when someone can’t make a solid identification, then I think the resolution should be reworded to indicate this. Even though people read the resolution this way, I don’t think it’s actually what the resolution states.

I don’t think the resolution should stay in effect for 2 reasons. First, I think it’s not clear and it would be hard to hold people accountable for it. Second, now that examiners are specifically told to “avoid stating their conclusions in absolute terms”, how else are they to present them, if they aren’t absolute, possible, probable, or likely?

[L.J.Steele]

We're not really asking the judge to intervene in any way that alters the course of the trial. * * * I just don't stop talking if an attorney tries to cut me off, and if they try again, the judges have always told the attorney to let me finish. Of course, you can't be trying to slip in something outside the immediate scope of the question, but they don't get to "sound bite" you while you testify.

There are all degrees of intelligence and competency among the bar, but experienced attorney's don't try to cut you off unless you're really going outside the question. In my experience, that's more likely in the fictional drama than a real trial. The other attorney almost always picks up on it and begins his next question with something like, "Now, so the correct answer you were trying to give the jury when you were cut off was....?"

Judges vary on how active they are willing to be -- I mostly work in appeals, but when I've either been a witness or been at a trial, usually the attorney won't cut off a witness unless either (1) the witness is meandering (usually more a problem with lay witnesses) or (2) the witness is bordering on an area of inadmissible testimony (an expert who's about to opine on the ultimate issue in the case, for example). If you are being cut off, it may be worth a deep breath to consider whether there's a good reason for it -- as a witness you are only seeing part of the case.

I'd be cautious about continuing after being cut off -- there's some case law in a couple of states allowing the defendant on appeal to claim error caused by deliberate witness misconduct when an experienced witness appears to deliberately be interjecting matters in violation of a court order, well-known evidentiary rule, etc. (It has been a few years since I did this research and I'm on the road, so I don't have my file to hand tonight -- but gist of the problem is usually an investigator who hints at suppressed evidence or uncharged misconduct evidence, or a treating medical professional who states or implies that a child complaining of sexual abuse is credible in defiance of court rules on vouching). Again, these are different problems than what's under discussion here, but think for a sec when you are being cut off if there's any reason why what you are about to say might violate basic evidence rules or a court's order.

In most cases, the cut-off is likely because the attorney has gotten what he/she wants and they are just impatient to move on. Hopefully, opposing counsel will pick up on the shortened answer and ask on redirect or recross if there is something you wanted to add to your answer to question X. (Sometimes this will fall by the wayside -- trial counsel are busy folks trying to pay attention to the testimony, the jury, the judge, consider the effects of the testimony, and plan their responses, all at the same time. And sometimes stuff will fall by the wayside.)

I agree that getting the testimony right is of great seriousness -- my concern is merely that if the expert takes matters into his/her own hands, there are risks of creating error in the trial and/or irking the judge/counsels -- at best this is something to be done with caution.

[Charles Parker]

Michele I do not think you diverted it. You just raised another issue along the same lines.

But you did remind me about the IAI wanting everyone from refraing in stating their conclusions are absolute.

A resolution stating no possible or probable statements and a request not to testify to absolute conclusions.

Do you think they will get this worked out in Spokane?

Thanks for bringing that up.