Examiner Discretion How Far Should It Go?

[Michele]

We are having a discussion in our office about keeping every latent print card that people lift.

Some people say that if you try to capture ridge detail and it won't lift then there's no point in keeping the lift card. Just tear it up without writing the case number and everything else on it. Submitting everything when you know it doesn't have value creates unnecessary work for others. They believe they have the knowledge to do a basic evaluation at the scene and if nothing is lifted then why preserve it?

Others say that everything should be kept and the lifts should be evaluated in the office and not at the scene (where the conditions for evaluating the lift card are better). Some people may also prefer to keep everything so they don't have to explain why they didn't in court.

We do recommend that our officers to turn in everything since they might not have the knowledge and competency to evaluate a lift on scene. I'm talking about lifts from those specifically trained at evaluating latent prints.

Do people think every attempted lift should be kept?

Does anyone know if there are any books or articles on experts using their discretion in this area?

Is it possible to control examiner discretion properly? Is it viable?

[rmcase]

Hi Michele,

If you are based in the UK, then you are required by law to keep all records relating to the investigation, otherwise you could be accused of destroying information that might exonerate a person.

I believe that this is good practice anyway.

I am not sure how you reference your lifts, but it is common in the UK use intials followed by a consecutive number (e.g. RMC/1, RMC/2...), but if I had conducted a number of lifts in the same area area then I would add a lettered suffix (e.g. RMC/1a, RMC/1b, RMC/2...), this would indicate to the LPE and any other person reviewing the case what has taken place.

Hope this helps

[Michele]

Is the law specific enough to say that you must keep everything you capture (try to lift) or could it be interpreted to say that you have to keep everything you determine should be preserved? If the law says you must preserve every item that you think possesses possible evidence then should you keep the items processed as well (even if you didn't lift anything). This would be the only way for someone else to repeat the conclusion that trying to capture lifts wasn't possible.

I think we typically think of capturing and preserving as the same thing but I'm starting think they are different and was wondering if anyone else thought of them as different. It seems like the total procedure is more than just processing and lifting. I think we examine an item, process it, examine it to see if anything appeared, try to capture items that may be considered evidence, examine what we captured, and then determine if it should be preserved and submitted.

Would you happen to have the exact wording of the law in the UK?

[Boyd Baumgartner]

There's not much literature on the topic for sure, I've found a couple items:

http://www.scafo.org/library/100601.html

The evaluation of latent prints for retention is one of the most difficult areas to define. As all latents vary in degree of clarity and amount of visual information, all latents need to be evaluated on an individual basis. Any latent print which is identifiable would obviously be of value. And, a latent print or lift lacking any detail (smudge) would clearly be of no value for identification

purposes. Prints of no value need not be retained; as the name “no value” implies, there is no evidential value. However, the act of not retaining an item of potential evidence requires a thorough understanding of the term “no value”. Unidentifiable prints from a location indicating involvement in a crime (i.e. prints on a point of entry which suggest the forced opening of the window) may have value in the eyes of the defense attorney, in spite of the prints lack of being identifiable. Defense attorneys may rightfully argue that a comparison of those non--identifiable prints could possibly exclude their clients from being the donor. The level of visual information in a latent print needed for making an elimination is different than what is necessary to make an identification. Although Olsen is speaking of identifiable prints in the statement “latent prints found at a crime scene and which are in such a position or location that only the perpetrator of the crime could have made them, assist immeasurably in eliminating all other suspects”2, this premise is still valid even when applied to non--identifiable latents. All unidentifiable prints in such a position or location, if they could assist in the elimination of a suspect, must be retained. What frequently is offered by defense counsel is the inaccurate generalization of any print being useful to eliminate the defendant. This defense by elimination can only be legitimately applied in cases where “only the perpetrator of the crime could have made them”3 (the prints). In the case of the prints on the window, was there a second suspect to whom the prints could have belong--—in which case, the elimination defense is now invalid.

http://books.google.com/books?id=kSfYd2 ... ts&f=false

8.5.1.2 Who Lifts the Latent Prints at the Crime Scene?Imagine the evidence technicians in their white protective suits combing a
crime scene looking for every piece of evidence, including hair and blood
(DNA), fibers (lab), and latent fingerprints (AFIS). Does every local police
department have this technology, investment in personnel and equipment, and
sophisticated laboratory? Probably not. What a typical department most likely
has are trained evidence technicians, crime scene investigators, or others,
perhaps some with latent fingerprint training, who know what to look for and
what to discard. Or perhaps they have officers trained in the preservation of
evidence who are taught to bring back to the office anything that looks like
evidence.Personnel trained in fingerprint identification who work a crime scene havethe experience to look at an image and decide if it is "of value," i.e., if there is
sufficient ridge structure to effect a positive identification. With this knowledge,
a crime scene technician trained in fingerprints from Agency A may discard
finger images that are of "no value" and, alternatively, see ridge structure in
what might appear to the untrained eye as merely a smudge. The technician
without fingerprint training from Agency B, however, collects every piece of evi-
dence he or she can find, with the notion that it will be sorted out later. In
some departments, the crime scene specialist is also the fingerprint expert and
so knows exactly what to look for and how to process the latent print images.
Figure 8.1 describes two of many decisions that affect the statistical reporting
of latent print identification. It shows how two agencies with competent staff
process a total of 100 latent prints found at ten crime scenes.

http://www.ncjrs.gov/App/publications/A ... x?id=47548

This article abstract deals with results of a study which approximates the question posed by Michele. If anyone has it, I'd love to read it.

[rmcase]

Hi Michele,

The law to which I am referring is the Criminal Procedures and and Investigations Act (CPIA), and in particular the sections that cover the disclosure of unused material.

This law isn't specific to forensics and doesn't quote fingerprint lifts... but the basic interpretation of the law is that any item or documentation (even if only a post-it note) in relation to a case requires retention and is potentially disclosable to the defence.

Therefore, even unsuccessful lifts should be retained.

If the decision is made at the scene or the laboratory that there is nothing of value to lift or photograph, then there is no requirement to keep these exhibits, only to document the fact that nothing was found.... otherwise our property stores would be full and crime scenes (even for minor crime) would need to be preserved indefinitely.

[Tazman]

There are some very good examiners in this business. Others who are not so competent are still to be found in some ID Units. Some of these not so competent examiners will rule latents "Of no value" even though most of us would easily identify the print given the right exemplars.

Likewise, some departments have lifts taken by CSI technicians who can see the easy value prints as worth saving, but not the 10 or 12 point smudges, even though a good examiner could still identify the print.

Because of that, my department has a rule that when the tape hits the lift card, it becomes evidence. The value/no value decision can be made up until that point and the latent not kept. But once the tape is on the card, it goes into the files forever.

Some examiners say that wastes a lot of room in file cabinets keeping lift cards with absolutely nothing of value. But it also prevents a CSI or incompetent LPE from throwing out a lift that could be identified or excluded at a later point in time. And come on, folks, how much space do a few extra lift cards take up in the overall scheme of things?

[Michele]

Do you think the rule of keeping every attempted lift makes some people not even try lifting some latents? They may throw the powder around and then evaluate the latents to be of no-value and not even attempt to lift them?

The issue of people tossing 10-12 point lifts seems to be a competency issue for me. A fingerprint 'expert' (vs an officer) should be competency tested prior being able to make these judgments. Shouldn't you be able to trust them to make good decisions. If you can't then I agree they shouldn't be allowed to make these decisions. But shouldn't you be able to trust an expert to make good judgment calls?

It's not time consuming to fill out 1 or 2 lift cards but it could take a lot of time if there are 20 lifts. With the new computer programs (LIMS), putting all the information about each lift into the computer system can be time consuming also. I agree that it doesn't take up much room in the files.

[Michele]

... one more thing.

The US had a similar rule to the one rmcase mentioned (keeping sticky notes). I kind of equate an attempted lift with a sticky note where the pen wouldn't write. If I had to get a new pen and a new sticky note (because I was scribbling circles on the first one in an attempt to get the pen to write), I wouldn't keep the first sticky note.

I'm not advocating to do a thorough evaluation of lift cards at the scene but some obviously have no ridge detail on them. If the latent print cards even have the potential of being of value then I'd keep them and do a thorough examination in the office.

[Peter Griffin]

Our lab brought this up, specifically when dealing with items we were processing in the lab. Sometimes in order to get a better look at a possible latent it helps to lift it. The problem with our lab was that once we lifted something we had to treat that lift as new evidence that was retained by our lab and would receive a chain of custody and tracking number. That is not really too much of a problem if you have multiple lifts and prints of value, but it was a pain when you only take one lift and you realize it is of no value. You then go from quick notes/report of no value to longer comparison notes/report.

We argued that calling it of no value was the exact same thing as looking at the item with dye stain under the ALS and determining there were ridges but none of value. We then proposed having a second examiner just initial the first examiners notes that the lift was of no value and placing it with the evidence instead of keeping it in the lab. Unfortunately a couple people in our section did not like this and so we never changed our practice.

Perhaps, instead of entering all of the No Values in LIMS as individual lifts you can create a policy that allows you to group one or more lifts of no value together as an item as long as a second examiner gave it a look and agreed. That may save a little time if you have a lot of NVs since you would not have to individually enter them all.

[L.J.Steele]

There is also a question of whether it may have value later -- there have been those stories about DNA testing from organic material in the lift. As a defense attorney, my bias would be to save everything for as long as possible. I'd also suggest whatever policy is adopted be done after consulting with your legal counsel about your obligations under Brady v. Maryland and interpretations of it in your jurisdiction.

[Bill Schade]

Well that is certainly an interesting perspective counselor.

And of course if I tried to develop touch dna on a lift submitted you would argue that the lift was contaminated because I used the same brush and same jar of powder on mutltiple lifts from the crime scene, or heaven forbid, the same brush and powder on different crime scenes!

I can see a whole new market for vendors "Sterile, one time use fingerprint brushes" Maybe they should be preloaded with powder too, so we don't cross contaminate our powder.


I think that if a lift is made, someone thought there was something there and it should be retained once it is turned in.

If it is not turned in for examination, it falls into the catagory of "what you didn't do" at the scene, another lawyers "playground"

I'm being a little argumentative this morning, but it's troubling to me that so many of these discussions eventually become, "what might the defense say in court"
I think our SOP's should reflect "best practices" and "real world" situations and not what someone might argue later.

You can't anticipate every argument, just explain what you did and why.

To steal a phrase "do the right thing, because it's the right thing to do"

[Charles Parker]

The following are the views of the author and not necessarily those of a professional organization or government entity.

For those that are not involved in the Law Enforcement side we have a hypothetical agency that recovers 8,000 latent lifts in approximately 1,600 cases a year. Of the 7 LPE they testify a total of approximately 12 times a year (you figure the percentage). In the past 20 years there has only been one case where they took the latent print and tried to develop DNA from it. They got nothing. Getting touch DNA from Latent Prints is not an everyday thing. Back to the separate brush thing the above hypothetical would mean a lot of brushes---and then you would have to document them----each brush has a serial number and you have to log in the brush to evidence as that could be potential evidence as well (the brush could be contaminated before use----it has happened with gloves).

I have to agree with Bill ‘Do things right because it is the right thing to do’. We need to move away from trying to answer to the critics every call.

On to Michelle’s problem: Hers is not a new problem, I have been in on discussions of that type for a long time. Use too ‘examiner discretion’ at the scene was very prevalent in agencies I worked with and I used to have no problem with it until one time I saw a LPE throw some lifts away and I picked them up and actually made an ID on one of them. Since then I have grow more wary of ‘examiner discretion’ after several other incidents. The problem is not the concept but the people applying it. If everyone was of Michelle’s mentality then there would be no concern. But the truth of the matter is that some people are just lazy, don’t want to bust their buns, or just do not have the discipline concept down correctly. Rules and standards are made to control those people who really do not have the concept or ethics to do the right thing.

I like the one suggestion that when the tape hits the card then it is a lift and should be retained.

My 2 cents.

[Gerald Clough]

I come down in the end to the fact that, in the course of an investigation, I created a tangible thing directly related to the investigation and potentially material. I don't have to lift every spot I dust. I don't have to take a photo of everything that comes before me as I look around. But when I create an object, that's it. My notes. My sketches. My featureless lifts. It costs virtually nothing to keep them all, and life becomes potentially easier if questioned, and that's a good thing.

Lisa: Not that it shouldn't be discussed with the local prosecutor, but I doubt Brady is the correct realm. We're talking about something that does not exist at trial time and that can't be analyzed post-trial to say if it means anything. Could be a due process issue, but more likely it would just be the defense implying a sloppy or unfair crime scene investigation. I was thinking about this in some scenario like the classic bank robbery where the custodian cleaned the teller counter, and a smudge was lifted and discarded without considering DNA. Since a competent investigation (meaning not swabbing) is not a Constitutional right, and no one can ever say if the lost lift had DNA potential, I can't see it as Brady. Probably not much of a defense arguing point at all, either, but it could be in other situations. I'm still going to keep everything. It's just so much more comfortable.

[L.J.Steele]

I'm not a Brady expert, but there is case law out there on failure to preserve evidence in the investigation stage. I've had a couple of appeals where prosecution had some bit of evidence and either lost it or stored/tested it in a way that made it impossible to do a subsequent DNA test. So far, I haven't won on that issue, but that doesn't mean that in the right situation failure to preserve wouldn't cause a major problem. It also may create the potential for an adverse inference instruction, in the style of Mass' Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482, 491 (1980)

http://www.mass.gov/courts/courtsandjud ... ations.pdf

Courts generally don't require the investigation to take every possible test, but they do require reasonableness. Again, there's some case law out there about due process issues if the police don't preserve/test the obvious, or allow evidence to unreasonably be lost.

Jurisdictions vary about how they handle this which I why I suggest talking to your agency's counsel -- hopefully he or she will consult with the prosecutors AND the public defenders or their counterpart to get a sense of the llocal case law and issues.

I'm certainly not a DNA expert, but I'm thinking of it as an example of saving things that aren't valuable today, that might be valuable later. (And sure, Bill S., there may be practical issues with that specific example.) But cases can hang around for a LONG time as they wend their way through habeas. Look at Cowans, which came back 11 years later when DNA got good enough to test the glass. What's worthless today may be critical to resolve a genuine question of wrongful conviction later.

[Boyd Baumgartner]

A few additional perspectives to consider.

Kasey addressed this topic in an '04 Detail where he defines Sufficiency in 3 tiers.

http://www.clpex.com/Articles/TheDetail ... ail162.htm





Tom Adair replied in a subsequent Detail with some items of note about the logical implications of Kasey's assertions.

I'm curious about something Mr. Wertheim, if we follow your argument to it's logical conclusion then doesn't it at least suggest that a crime scene analyst or latent examiner should process every possible surface in a crime scene for latent fingerprint evidence? Shouldn't finger marks, with no ridge detail, be collected or swabbed for possible DNA evidence? If a latent impression has one or two ridges with level three detail present over a very small surface area shouldn't that be collected as well for review? In a robbery of a public business (like a fast food restaurant) shouldn't everything in the restaurant (including trash) be collected for possible analysis and comparison by "any" examiner who argues it might contain "valuable" evidence? If the fingerprint examiner doesn't process every possible surface then aren't they doing an "injustice" to the system? After all, failure to collect evidence that may be used to defend or exonerate a person in court would be wrong, correct (see third quote)? What about not using every method (i.e. chemical reagents, fluorescent powders, Lasers or ALS) possible to develop prints at a crime scene or on evidence? If a crime scene investigator only uses black powder, aren't they potentially missing evidence that could be "meaningful" to "any" other analyst? How do you view our responsibility to the criminal justice system? Are we to investigate every possible theory or are we to conduct a reasonable analysis and make reasonable decisions? I've copied a couple of quotes from your article and while they may be somewhat out of context the underlying message I get is the argument I've described above.

The last resource can be found here:

http://caselaw.findlaw.com/nv-supreme-c ... 87324.html

Which finds a distinction between not collecting evidence out of negligence and out of obligation.

Although this court has not previously articulated a rule specifically governing the present situation, some states have been reluctant to impose a duty to gather exculpatory evidence.   See, e.g., March v. State, 859 P.2d 714, 716 (Alaska Ct.App.1993) (“Officers investigating a crime need not ‘track down every conceivable investigative lead and seize every scintilla of evidence regardless of its apparent importance ․ or run the risk of denying a defendant due process ․’ ” (quoting Nicholson v. State, 570 P.2d 1058, 1064 (Alaska 1977)));  State v. Rivera, 152 Ariz. 507, 733 P.2d 1090, 1095 (1987) (“The State has no corresponding duty, however, to gather blood alcohol evidence for the defense to use in corroborating the defense's own evidence.”);  State v. Steffes, 500 N.W.2d 608 (N.D.1993) (state has no duty to collect particular evidence at the crime scene).

 At least one court, recognizing that injustices could arise from the State's failure to gather evidence under certain circumstances, has developed a test for failure to gather evidence.   In State v. Ware, 118 N.M. 319, 881 P.2d 679 (1994), the New Mexico Supreme Court established a two-part test.   The first part requires the defense to show that the evidence was “material,” meaning that there is a reasonable probability that, had the evidence been available to the defense, the result of the proceedings would have been different.  Id. 881 P.2d at 685;  see United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). If the evidence was material, then the court must determine whether the failure to gather evidence was the result of mere negligence, gross negligence, or a bad faith attempt to prejudice the defendant's case.  Ware, 881 P.2d at 685-686.   When mere negligence is involved, no sanctions are imposed, but the defendant can still examine the prosecution's witnesses about the investigative deficiencies.  Id.  When gross negligence is involved, the defense is entitled to a presumption that the evidence would have been unfavorable to the State.  Id.  In cases of bad faith, we conclude that dismissal of the charges may be an available remedy based upon an evaluation of the case as a whole.2

 We agree with the Ware court's conclusion that, although “police officers generally have no duty to collect all potential evidence from a crime scene ․ this rule is not absolute.”  Id. at 684.   Accordingly, we approve of the approach articulated in Ware, and adopt a similar standard for Nevada.   Despite this decision, we must deny Daniels' appeal because he failed to establish that the blood evidence was likely to have been material, and because he failed to establish that the State's failure to gather the blood evidence was attributable to negligence, gross negligence, or bad faith.