Inconclusive Decisions

[josher89]

If you render an inconclusive decision in a case, and it's inconclusive due to lack of sufficiency in the latent, but there are some similarities between it and a certain finger, should we be reporting inconclusive to a specific finger or just inconclusive and document the finger number in our notes? I'm thinking that if we report inconclusive to a specific finger, more weight may be given to the fact that it is 'close' to being that finger; it either is or isn't. I think that that sort of documentation in our notes is fine and justifiable--we are looking at that particular finger when doing the ACE anyway. Thoughts?

[sandra wiese]

Josher, I have never understood the reasoning behind an "inconclusive" decision when the LATENT has insufficient details for an ident. If the latent is insufficient, then it is of no value, not inconclusive. I only use inconclusive when the exemplar is insufficient (and an ident or exclusion could happen with better exemplars), otherwise there is little meaning to the term as I understand it.

But to address your original thought: this seems like overstatement or bolstering to me. I can see a detective or DA running too far with this information; which really isn't information at all, since with the scenario you describe it could be "close" to any number of people but reporting it is close to a named individual may bias an investigation in a very unsupported way. If you must document this, then I would do so only in case notes, but would make a point of adding that it is insufficiency in the latent and not the exemplar, just in case I was hit by a bus and someone else needed to understand that obtaining better exemplars is still going to have no effect on the examination.

My two cents.

[Anna]

Hello,
Just thought I would refer you to Alice Maceo's article entitled " Documenting and Reporting Inconclusive Results."
If you go to the IAI website, Member's Area, you can look up JFI articles.
I find it to be an interesting viewpoint.
Anna

[josher89]

To reply to Sandra, we are a type II lab in that we retain prints that are suitable for comparison; we kept it because there was enough detail to exclude other fingers (individuals). Hence, the inconclusive decision to this latent print. Exclusions contain just as much probative value as an identification.

I will read Alice's article in the JFI on Anna's recommendation.

Others please weigh in.

[sandra wiese]

Great article, not sure I remember reading it when it first came out. In light of Alice's article, I will amend my previous response to include that we do, under limited circumstances, report that a certain person "can neither be identified nor excluded based on factors X, Y and Z". However, I retain my stance that reporting a print of no value for comparison as, essentially, "possibly this person's finger" is overstatement and should not be used. Basically it is saying "if only these certain circumstance were met, this would be your match" while fully realizing the impossibility of these circumstances ever being met, which is not saying anything at all and holding out false "evidence". My old partner and I used to summarize this conundrum as "too bad there weren't three nuns and a priest on the corner videotaping this one".

The evidence is what it is and that is what we get to report on, no more, no less.

In regard to keeping a print that is suitable for exclusion only, I totally get that and agree on the value of reporting an exclusion. But you are not reporting an exclusion, you are talking about a "might be" that can never be conclusive. That is where the overstatement is.

[ER]

Couple things (that will probably generate multiple disagreements) ...

Comparisons should be reported. Sometimes you think a latent is identifiable, complete the comparison, and realize that is isn't identifiable. It happens all the time. The only way to really tell that something is identifiable is to identify it. It's impossible to always correctly determine identifiablility during Analysis. However, if we compare a latent, we should report a conclusion. In the long run, policies that allow re-analysis to "No Value" after Analysis, Comparison, and Evaluation have been completed are going to cause our discipline problems. It looks like we're hiding something, and I believe that it leads examiners to missed identifications and erroneous exclusions. The alternative is so simple. If you compare something, and then think that it has no value for ID, report inconclusive. If you have to, make up a new category of inconclusive. "Inconclusive due to no value"

To Josh's original question. I think either approach is fine. My agency does not report the finger number but documents a side-by-side comparison to the specific finger that is close. Vegas reports the finger number. In court, I don't think there's a difference. The information is available with either approach. I think the big difference may be in how the information is treated by the case officer. Reporting a finger may seem like more actionable information at that level. I don't think there's a right or wrong answer here. Different agencies may have valid reasons for reporting the information differently.

[ER]

And to comment on the entire concept of reporting these "almost" comparisons.

We've all seen these types of comparisons, and different agencies will report different phrases that are "code" to indicate what's going on. My agency decided to move away from "could not identify nor exclude" because a) that's not one of the three acceptable conclusions, and b) because it did not clearly describe the situation. Our reports now read (and this only happens 2-3 times a year lab-wide) that our result is inconclusive and that while similarities exist between the latent and the exemplars, there is insufficient detail in the latent print for identification.

Our reasoning is that if we had to go to court to explain why the comparison was inconclusive (or resulted in a re-analysis to No Value), we may have to put the prints onscreen and walk through each minutiae. At the end we would say that all of the information present was insufficient for an identification, that additional exemplars would not help, and that we couldn't exclude it either. Not identifying and not excluding is the definition of inconclusive. Since we may have to explain the reason behind our inconclusive conclusion in court, why not also clearly explain it in the report? Clearly describe the conclusion to the decision-makers instead of withholding information from decision-makers.

Care must be taken to not overstate things, but I don't think that saying inconclusive with similarities is overstating. This idea is fits in very well with other forensic disciplines and has its roots as far back as Locard's Tripartite Rule.

[areitnau]

Hello,

My general philosophy regarding this issue is to adopt a linear approach to the methodology. In our laboratory, and in my own experience, we document certain aspects of the analysis phase. This can include: pattern type, finger/palm, level 3 presence, creases/scars, and level 2 annotations. Following this process, I expect examiners in my section to formulate a conclusion in regards to the sufficiency of the impression, those being of value for ID, of value for exclusion only, or insufficient for examination. When we return a comparison decision of inconclusive, there is a reason stated in the notes and on the report. In the vast majority of these instances, the resulting conclusion is based upon the exemplar. Some possible reasons that are reported are: Missing areas of exemplars, no palms available, poor quality exemplar, or unable to exclude on level 1 detail. In rare instances, an inconclusive conclusion may be based upon the latent, but in those instances the bench notes should reflect a specific reason such as a distortion issue, possible unexplainable discrepancy, or other complex situation. However, this decision does not change the decision made during analysis.

As far as reporting is concerned, our report is a summary of the results of examination. We do indicate the specific anatomical source on our reports for identifications, however for inconclusives and exclusions, only the general decision is reported. Our bench notes maintain a specific record of the results for each finger/palm in a comparison, however, it is not broken down in the lab report. I do believe that reporting a "close" result that does not yield an identification due to the nature of the impression could certainly introduce a bias to the reader, as the reported statement could be "loaded" towards a possible conclusion. It is our responsibility to conduct an independent and unbiased examination of the evidence, without introducing any weight to the evidence.

[Tazman]

If you report a latent print comparison as inconclusive, how can you later identify the latent to anybody?

When we "identify," we generally state the standard as "to the exclusion of any other person."

So you have latent print Q-1 and you reach an inconclusive to Subject A, meaning you can neither identify nor exclude, but not because of poor quality knowns. How can you later identify Subject B as the source of Q-1 to the exclusion of any other person, when you have already said you cannot exclude Subject A?

[ER]

Tazman,

Your post makes a couple of assumptions.

The first is that inconclusive always = no value. The second is that every identifiable print is also always excludable.

This does not necessarily have to be the case. Inconclusive can be defined as a comparison that is neither identified nor excluded. Using this conclusion says nothing about the latent's value. So, if an identifiable latent is compared where the examiner can find no correspondence AND cannot find sufficient disagreement, they would report inconclusive because they did not identify or exclude. Failing to find correspondence doesn't change the fact that the latent is identifiable. Failing to find sufficient disagreement also does not affect the value of the latent print. On a later comparison to another individual, correspondence is found and an ID is reported.

Consider a latent print with parallel ridges, few (if any) minutiae, and an abundance of 3rd level detail. I do not believe that latent print examiners can accurately exclude this type of latent. It may be considered "Of value for identification only".

Consider these two scenarios:
1) Latent is excluded to suspect A. Next year suspect B is submitted. The examiner finds correspondence that is insufficient for an ID. What do you report? Can it be "No Value" when there's already an exclusion? Wouldn't "Inconclusive" be the most appropriate conclusion to report?
2) Latent is deemed identifiable and is compared to suspect A. No correspondence is found but no real differences either. The latent is re-analyzed to be "No Value". Next year suspect B is submitted. The latent is never compared to suspect B because of the No Value conclusion with suspect A. A case review later finds that the latent should have been identified to suspect B.

Identifiability and excludability are different measures that are based on different aspects of the latent. They often overlap but one does not imply the other. Identifiability is based on specificity or "uniqueness". If you wouldn't expect to see this arrangement repeated in another person, then the latent is identifiable. However, specificity doesn't matter for exclusions. Exclusions are often based on non-specific arrangements. We rely on robust and repeatable features for exclusions (like cores and deltas) and we don't rely on features that are subject to change (like pores and edges). In other words, L1D = good for EX and bad for ID; and L3D = bad for EX and good for ID.

This is why it's appropriate and expected that we cannot exclude subject A and then later identify subject B. In this case the latent had features that made it identifiable but lacked features that made it excludable. The features that impart identifiablitiy and excludability are different features. Latents usually have both but can sometimes lack one or the other.

[josher89]

Taz,
I didn't think we could say to the "exclusion of all others" anymore...and it really depends on why you are inconclusive. If you have a pattern type (at least an unquestionable one), you may be able to exclude on that. You can't ID on it alone. If we said a print is of no value because we can't ID it, we haven't been able to compare it to everyone so we don't know if it's no value. If we report it inconclusive, and later on get a suspect to compare to, we may be able to identify it. But, if we don't report it as inconclusive, we won't ever be able to compare it to anyone because anyone reading the report will think it wasn't worth anything and therefore, never give it a chance to be compared against someone.

Well, crap, I was previewing my response and during that time, ER responded with, while a more eloquently orated response, almost what I was saying.

[Tazman]

Hypothetical, fictitious, nightmarish transcript:

Defense Attorney: Mr. Witness, you just testified that you identified my client Smith’s fingerprint on a gun, is that correct?
Witness: Yes, sir. That is correct.

Defense Attorney: Now, Mr. Witness, I recall an occasion several years ago in which you testified to a fingerprint identification “To the exclusion of any other person.” But I did not hear you testify that way today. Why did you not testify today that the fingerprint on the gun was Smith’s “to the exclusion of any other person?”
Witness: We don’t testify that way anymore.

Defense Attorney: Well, if you don’t testify “to the exclusion of any other person” anymore, how are you supposed to testify to fingerprint identifications today?
Witness: We are doing research into “likelihood ratios,” which would allow us to calculate statistically that a fingerprint is, say, ten million times more likely to have been made by this person than any other random person in the general population, or something like that.

Defense Attorney: Okay, can you put a number on the fingerprint you identified on the gun?
Witness: No, no validated model exists currently for making that claim or calculating that likelihood ratio.

Defense Attorney: Now, my esteemed colleague, Mr. Prosecutor, only asked you about my client Smith. But I see in your notes you also compared the fingerprint on the gun to a certain Mr. Jones, is that correct?
Witness: Yes, sir.

Defense Attorney: And what was the result of that comparison?
Witness: It was inconclusive.

Defense Attorney: What does that mean?
Witness: It means I could neither identify nor exclude Jones.

Defense Attorney: But you subsequently identified Smith?
Witness: Yes.

Defense Attorney: But you still cannot exclude Jones, even after you have identified Smith?
Witness: That is correct.

Defense Attorney: So, if I understand you correctly, you are saying that the print on the gun was more likely left by Smith than by Jones, but you cannot put a number on how much more likely that is. You are willing to identify Smith, but you still cannot exclude Jones?
Witness: Yes, sir.

Defense Attorney (rolling his eyes): Okay, I think we all get the picture here. No further questions.

[ER]

My answers would be slightly different...

Defense Attorney: Now, Mr. Witness, I recall an occasion several years ago in which you testified to a fingerprint identification “To the exclusion of any other person.” But I did not hear you testify that way today. Why did you not testify today that the fingerprint on the gun was Smith’s “to the exclusion of any other person?”
Witness: I've never testified in that way before but there were latent print examiners who were taught to use that phrase. The latent print discipline now recognizes that statement to not be scientifically supportable nor a necessary part of an identification conclusion. In addition, I would only report exclusion decisions when I reached that conclusion after comparing an individual, not on a theoretical basis after making an identification. I am confident in the accuracy of my identification, but recognize the possibility that there may somewhere be an area of ridge detail that I could not distinguish from this ridge detail. However, in this case with the amount of detail in this comparison, I would consider that possibility so small as to be negligible.

Defense Attorney: So, if I understand you correctly, you are saying that the print on the gun was more likely left by Smith than by Jones, but you cannot put a number on how much more likely that is. You are willing to identify Smith, but you still cannot exclude Jones?
Witness: No. I'm saying that I identified the print on the gun to Smith because there was sufficient detail in both the known and unknown prints to reach that conclusion. As you can see in this charted enlargement, the 3rd level detail that I described earlier clearly corresponds. This type of detail is highly specific. I would not expect to see this amount of detail reproduced in another person besides Smith. In my previous comparison to Jones I noted this same detail but could not find any correspondence between the latent print and the prints of Jones. This failure to find correspondence is not the same as sufficiency to exclude. Without reaching a higher level of sufficient differences, I did not have confidence in an exclusion decision to Jones, even though I had found no correspondence. So only after failing to find sufficient similarities and failing to find sufficient dissimilarities did I reach an inconclusive decision. My comparison to Smith found sufficient similarities and resulted in an identification. However, this does not change the fact that I failed to find sufficient dissimilarities in my comparison to Jones and I did not let my decision for Smith bias my decision for Jones. This latent print happens to be the kind of impression with highly specific features that lacks robust features. In other words, finding similarities can result in an identification. However, failing to find similarities could mean that the prints came from different sources, but it could also mean that known prints are incomplete or taken at a different pressure or that distortion masked the similarities or that I was looking in the wrong location or wrong orientation. Until I can discount these other possibilities, I cannot reach an exclusion decision. This latent print does not contain the detail that I would need to discount these other possibilities even though it still has sufficient specificity to reach an identification. This is a rare case of a latent that is identifiable but not excludable.

(I'd actually try to shorten that up for the jury, but I wanted to go a bit longer for an audience of experts.)

[josher89]

Some food for thought (and possibly a monkey wrench in the gears of this thread):

When you search a latent through AFIS and you can identify the latent to the first candidate; who keeps looking at subsequent candidates? I can get where you would to make sure the person hasn't been given two SID#, or they don't have multiple entries--sex offenders, applicants, etc., but how many people truly keep looking at candidates in a respondent list once they identify the latent? Could this be interpreted as excluding it to all others?

I stop looking once I'm confident that the above-mentioned circumstances aren't happening because I don't expect to find someone else that has the same minutiae present. Am I excluding it to all others? Should I be looking at all of the candidates on my list? Am I excluding because I've identified the print and not because I've compared all of them and rendered an exclusion decision based on those individual comparisons?

I think I might be confusing myself now...

[ER]

This wrinkle has come up before...

I keep looking through the whole list for 3 main reasons...

1) To look for duplicate SID #'s like you said.
2) To look for close non-matches. I have collected dozens over the years and they are fantastic for training and for calibrating my own measurement of sufficiency.
3) I'm not going to mark something as a "No Hit" or "Exclusion" unless I compare it.

To anticipate the next question. No, I do not keep comparing additional suspects after I ID a print. However, I also won't report exclusions to those additional suspects unless I actually do the comparison. I think it's a pretty straight-forward philosophy. If you compare, report a conclusion. If you don't, don't.