Disclosure of fingerprint charts - a survey.

[Cindy Rennie]

We are having some disussions with the Crown (District) Attorney regarding fingerprint charts. Some defense counsel are requesting copies of the fingerprint chart as part of disclosure.

After consultation with our Legal Advisor, my disclosure currently consists of: a statement of which latent impressions have been identified to the accused; a list of all of the impressions developed at the scene with the location of each latent (i.e. on what surface it was found) and the status of each latent (Identified; unidentified and on AFIS; unidentified and suitable for comparison only; insufficient quality of detail, etc); and a copy of my C.V. listing my qualifications.

It is currently our policy that fingerprint charts are not created until a court date is set. I usually create a chart and send copies out for disclosure about a month before the trial date. It is our stance that a chart is not evidence - it serves only as an illustration of how we achieved our findings.

Some defense lawyers are complaining that they are not getting complete disclosure because they are not getting a fingerprint chart. My stance is that I have not created a fingerprint chart, and I cannot disclose what does not exist. It's not that I'm trying to be uncooperative. If the defense wants to view the evidence, s/he is welcome to make an appointment to see me and look at the original latent and known impressions. They can bring their own expert with them, if they want.

Given the fact that only a small percentage of my cases get to the trial stage, creating charts for disclosure seems to be a waste of time and resources.

What do you folks do for disclosure?

[Pat A. Wertheim]

Personally, I have never had a defense attorney seek charted enlargements during disclosure. It sounds like either a tactic to waste your time or an attempt by the defense attorney to be an expert by looking at the chart to determine if you are correct. Either way, I would agree that if no chart has been prepared for court, it should not be disclosable evidence.

We do not prepare charts in any but a very few cases. Our department policy (not verbatim) is something to the effect that we will only prepare charted enlargements when a request is received by the laboratory manager at least 60 days in advance of the trial date. This goes back to the old days of hard film and enlargements in the darkroom when the amount of time required for our small lab might make a major impact in time management fighting backlogs and rush cases. It gives decision making authority to the supervisor based on all the factors that come into play. In other words, we simply may not have time for a last minute request. Like you, most cases simply plead out and testimony itself does not require charts of the identification to "prove" it. One of our strategies for last minute requests was generic charts. In fact, one prosecutor for years had an old chart from a long-ago case that he dragged to court whenever there was a fingerprint identification, and he would get the court's permission for the fingerprint expert to use that old chart to explain how an identification is made. It was never actually introduced into evidence and thus never got taken away from the prosecutor.

Hope you don't get stuck being forced to chart everything just because some defense attorney in your jurisdiction has created a fad.

[Penny]

Hello,

The Defense Attorneys here are starting to bring up the question of why no chart was done for any identificaiton made. One of the DDA's has come up with the idea of scaning the latent and the inked print and doing the chart on a disc so the defense can have it as part of the discovery.
He wanted his office to do the charting!

[sharon cook]

"...First, kill all the lawyers..."

[Cindy Rennie]

"First, kill all the lawyers",...but make sure you're wearing gloves. And booties. And a hair net. And don't shed any skin cells, and....oh, never mind!

I think that I am slowly convincing the Powers That Be to resist the pressure for fingerprint charts as part of disclosure. Pat Wertheim's response to my post carried a lot of weight (thanks, Pat! I owe you a drink.)

I also mentioned the fact that although I prepared 138 cases for disclosure in 2004, I only testified 7 times. (In most cases the defense waived my evidence or plead guilty). If I had to provide charts for disclosure last year, I would have prepared 131 fingerprint charts for nothing.

Keep your fingers crossed for me.....and I would still like to hear what the rest of you folks provide for disclosure.

[RL Tavernaro]

The first thing we do, let's kill all the lawyers. (Shakespeare, Henry VI, Part II, Act 4, Scene 2)

Cindy,

My experience is in the U.S., not Canada, however I find it difficult to believe that any disclosure laws/rules could possibly require production of something that does not exist!

Agencies that I have been associated with have generally disclosed only reports automatically. Copies of notes, photographs (when a negative was available), photocopies of latent lifts and known fingerprint/palmprint exemplars, were available on request. Photocopies of Polaroid photographs, including enlargements, and more recently digital photo printouts that were part of the case file would be included.

Photographic quality copies (at 1:1), meeting lab standards for comparison purposes, have also been provided for identified latent prints, if specifically requested after initial disclosure. (If using exclusively digital imaging, providing a CD or DVD would likely be more practical.) Additionally, all originals would be made available to the defense under controlled conditions, and they could photograph the originals themselves.

Generally only under court order would photographs, and especially charted enlargements that did not already exist, be prepared and disclosed to the defense.
Regards, RLT

[sandra wiese]

I have a different take, which might make life easier for a few folks...I now do all my comparisons in Adobe Photoshop. I mark each area of similarity with a colored dot, switching colors for each new area. It takes really no extra time once you get the hang of it. Then I post both latent scans with the dots into a new document and write in which finger/latent card/known card/whatever each print came from. I write in when I did the exam and who verified it (I print up the non-colored scans for my verifier to work from and include the original prints for info). Then I print this whole thing up with four copies, which I and the verifier all sign. One for the file, one for the detective, two for the DA. I give the DA two so they can give the defense one.

This serves as a "court chart", but more importantly it is a very clear way of showing what I looked at and compared. This chart is my case notes and a court chart and a report all in one (although I do still write a written report, of course). I have found that NO ONE wants me to testify when I do this. It's all clear in living color.

Just a different way of doing things in this digital world....And it makes it easier for the non-examiners to know what we do for a living.

Sandra

[Wayne Reutzel]

The original evidence is made available to defense. If they want a chart-then let them make it. What you see in a chart is what you see in the original evidence. I would like to hear Lisa Steel opinion on this topic as well.
Sandy: I also do "some" comparisons in Photoshop and mark the latents in the same fashion. Usually these are the more difficult comparisons and I feel that this is truly a time consuming task. I have a case assignment of 211 cases and can't image using PS on all of these

[L.J.Steele]

The original evidence is made available to defense. If they want a chart-then let them make it. What you see in a chart is what you see in the original evidence. I would like to hear Lisa Steele opinion on this topic as well.

Since you ask...I work in appeals, so I don't normally generate the discovery requests for trial, so I can't speak from direct experience.

Normally, what I see two requests for discovery or one continuing request. The request normally asks for whatever the expert has generated -- if you make a chart, then it gets disclosed. Sometime before trial, there will be a request for anything the prosecutor intends to use in court -- so if you are anticipating using a chart, it would be due at that point.

Sometimes what I see in the trial attorney's file is pretty cryptic -- a conclusory one page report (Latent D-7 recovered from envelope matches defendant's right palm from arrest record dated XX/XX/XX; no other notes, reports, or other data other than perhaps a photo of D-7 and a copy of the exemplar). In that case, I can see why the defense might want to know a bit more early on to decide whether to plead the case or not, especially if the print is a key (or the only) evidence against my client.

The defense could request more information. The prosecutor could oppose. The trial judge would decide -- but I wouldn't expect that to be a routine request.