Defense objection to V related testimony of ACE-V

[GEilers]

Attempting to determine if this is a common tactic for defense questioning in regards to testimony involving ACE-V. The following are questions I have based on recent courtroom experiences.

1. In the case report do you document that the comparison was submitted to another examiner for Verification as part of your normal ACE-V comparison process?
2. Do you name the examiner who performed the Verification?
3. Does the defense object to testimony by the primary examiner stating that they utilized ACE-V and only allow them to state that they performed ACE?
4. If the prosecution is able to establish that ACE-V was used, is the other examiner required to testify and if so, do they state that they performed the Verification (V) by utilizing ACE?
5. If an on-screen digital image based comparison was performed what images do you provide to the defense to demonstrate the comparison process?
6. Provide latent and known images only with no markings? Only galton points marked as in the traditional charts? Mark everything considered such as third level detail, ridge characteristics and flow, open fields, a matrix of characteristic relationships, distortion, scars, etc?
7. What is the proper balance of information provided? What is too much? What is too little to prove that the prints are from the same source?
8. What relevance does the Mayfield case have to our testimony since the comparison was not done by our agency? How can we have a valid opinion on the reasons for the errors in that case?
9. Should we have to testify to the content of every document that comes out about fingerprints such as from NAS, NIST, and the various SWG's?
10. Once an examiner has been accepted by the court as an expert, shouldn't the testimony then only shift to the outcome of the work performed and not continue with validating the process over and over again with versions of the same question similar to how many ways can Bubba cook shrimp?

Private communications are welcome. I may not be able to post any responses to questions that may be asked in regards to my questions. However I do welcome comments that may assist in future encounters in court. At this time I am only attemting to determine if my questions are a common experience for the general latent print community.

[Pat]

Hi Greg

1. In the case report do you document that the comparison was submitted to another examiner for Verification as part of your normal ACE-V comparison process?
2. Do you name the examiner who performed the Verification?
3. Does the defense object to testimony by the primary examiner stating that they utilized ACE-V and only allow them to state that they performed ACE?
4. If the prosecution is able to establish that ACE-V was used, is the other examiner required to testify and if so, do they state that they performed the Verification (V) by utilizing ACE?

In the state lab where I worked, we mentioned the verification in our reports and the verifier initialed the notes. In testimony, we explained the ACE-V process as our laboratory policy before introducing any evidence about the case at trial. In discussing the specific case on the stand, an examiner would only testify to the things he/she did and would not refer to verification. But the prosecutor would close the questioning by asking, "Did you follow the policy you outlined earlier?" and the answer, of course, was "Yes," but without specifically mentioning the verification. The fine line you have to walk is to discuss what you did without bolstering your testimony by testifying overtly that somebody else agreed with you.

5. If an on-screen digital image based comparison was performed what images do you provide to the defense to demonstrate the comparison process?
6. Provide latent and known images only with no markings? Only galton points marked as in the traditional charts? Mark everything considered such as third level detail, ridge characteristics and flow, open fields, a matrix of characteristic relationships, distortion, scars, etc?
7. What is the proper balance of information provided? What is too much? What is too little to prove that the prints are from the same source?.

We only prepared charts when requested by the prosecutor. In such a case, disclosure was up to him. I don't recall a defense attorney ever coming directly to us for disclosure. If they had an expert, we would allow full access to our notes, reports, evidence, photos, etc., at the police station. Copies of such were released to the defense attorney by the prosecutor.

8. What relevance does the Mayfield case have to our testimony since the comparison was not done by our agency? How can we have a valid opinion on the reasons for the errors in that case?
9. Should we have to testify to the content of every document that comes out about fingerprints such as from NAS, NIST, and the various SWG's?
10. Once an examiner has been accepted by the court as an expert, shouldn't the testimony then only shift to the outcome of the work performed and not continue with validating the process over and over again with versions of the same question similar to how many ways can Bubba cook shrimp?

Well, if you don't want to stay current on controversial cases, NAS, NIST, SWGFAST, etc., that's your business. If the defense attorney wants to cross examine you on it, that's his business. Under our laws, rules of evidence, and rules of criminal procedure, full cross examination is a defendant's right. Whether it makes sense or not, it's something we have to deal with. There may be flaws in the system and requirements that seem unreasonable, but I staunchly maintain we in the US still have the best criminal justice system in the world. If we enjoy the good points to these rules, then we also have to put up with the rules we see as bothersome.

Cheers,
Pat

[L.J.Steele]

I can't comment on common tactics, but I can say what I tell people in CLEs.

Forensics challenges come in several parts:
Chain of custody -- is the evidence what it purports to be
The lab's protocols, procedues, and certifications/accreditations
The examiner's training and experience
The scientific underpinnings of the procedure actually used
The adherence to procedure, confirmation bias issues, and validity/significance of result
The format of the response (how does the examiner express his or her results)

As Pat notes, verification has possible issues of hearsay and improper bolstering. How you report verification and testify about it will vary by jurisdiction, and may vary between what you say at a Daubert hearing before a judge and what you may say to a jury.

Questions may include the relationship between examiner and verifier, confirmation bias issues (what was the verifier told and/or what did he/she know when given the file), is verification blind, if only some verifications are blind, what's the standard.

I may disagree a bit with Pat about what you need in a report. From a defense perspective, I have concerns about confirmation bias and confidence inflation as the case gets closer to trial. I understand that there are practical issues, but I'd like to see contemporaneous reports that show what information the examiner thought was critical at the time of the original examination.

You are going to get asked about Mayfield and NAS and IAI's reponse to NAS, and possible other misidentifications in your state or region. You need to know enough to respond and explain to an audience who may never have heard of this stuff before.

You have to keep proving it because we keep getting scandals and mistakes. The FBI is a good lab, but made the Mayfield error. Boston PD's fingerprint unit testified for years about identifications, but made the Cowans error. How many years was FBI testifying about compartive bullet lead analysis before the NAS report on it? In how many cases did Anne Dookan testify in Mass about her narcotics tests before that scandal broke? Defense can't just accept that this is a good lab or a good examiner or a good technique and move on. We challenge because the client's future is at stake and so it is our obligation to put the evidence to the test .