What do to with questionable testimony?

[L.J.Steele]

Assume that an examiner has given what defense counsel believes is questionable testimony in a trial. What would be the best mechanism for counsel to raise that question with the examiner's department, and/or for IAI members or certified examiners, with IAI, or for ASCLD labs to ASCLD?

My concern is that a complaint by defense counsel is going to be written-off or evoke a defensive circle-the-wagons-and-protect-a-conviction reaction, rather than an impartial review to see if the examiner's testimony is, indeed, questionable or wrong, and appropriate steps taken to correct the record, if necessary, and to adjust training to prevent it happening again.

[I've sent a couple of letters to examiners or their agencies over the years asking politely about the basis for certain statements in their testimony -- I tend to get a very carefully worded bland response that the agency or examiner stands by their testimony, which speaks for itself.]

Would this be better coming from the defense attorney, or from someone like the Public Defender's office, or defense organizations like NACDL or one of its state affiliates?

[sharon cook]

I suppose it depends on the type of questionable testimony. If you think the examiner has identified the wrong person, then you need to hire your own expert to re-examine the evidence. What other kind of questionable testimony do you mean?

[L.J.Steele]

What other kind of questionable testimony do you mean?

I'm not talking about disputed identifications. I don't want to get too specific as this is a matter that needs to be taken up with the lab and examiner in question.

To take one of my older cases, I had an examiner testify that he had not taken any prints from the exterior of a vehicle in which the driver had been stabbed to death because it was raining and, as I recall, he said that the rain would have washed away any prints. As I recall, that's not an absolute truth -- it may be less likely that a print would be found, but I've had cases with prints developed on rained-upon surfaces. The testimony as it stands, is misleading. (Sadly, trial counsel didn't press the point.)

I had another case a while back where the defendant frequently visited the crime scene and was there earlier on the day of the homicide. The examiner testified that a latent found on a storm door, a "high traffic area" had to have been left by the last person to leave the premisis. Again, no cross-exam on this point.

Or assume that the examiner testified that a print was "fresh" and implicilty was made shortly before the crime was discovered. As I recall, the treatises and journals are uniform about not being able to tell the age of a print, only that it must have been left since the location was last cleaned.

[Andrew Schriever]

LJ,

ASCLD mandates that any agency accredited have a formal, written complaint resolution policy. If the examiner is part of an ASCLD lab, that would be the proper route to voicing your concerns. Assuming that they follow the ASCLD guidelines, they cant merely just write off the complaint.

If the agency is not ASCLD, there may or may not be a formal complaint process. You may get the old brush off or you may not.

My recommendation would be to get a copy of the court testimony transcripts, peer reviewed publications covering the subject, and a letter detailing your concerns about the testimony. If the subject is approached in a professional and non-confrontational manner, I would hope that most administrators/supervisors would at least investigate the issue. I seriously doubt that you will get 100% co-operation in all cases, but you may find that a lot of agencies are more responsive than you may think.

And make sure that any concerns are valid and that you can back them up with readily accepted documentation. Testimony that is misleading (intentionally or unintentionally) hurts the rest of the professionals out here that are trying to do our best to be truthful, professional, and accurate.

Andrew Schriever
Target APFL

[sharon cook]

Using "the rain washed it away" is the lazy man's out. There is Small Particle Reagent that can be sprayed on a wet car, in the rain, to develop latent prints. Or the car could have been garaged and dried and then processed. And in a homicide I would certainly expect that to be done. I have found latent prints in many areas I would never have expected to find them, so you should always at least TRY.
Now the "high traffic area" issue is a little more cloudy. If I remember, didn't you bring up a case a while ago where the murder weapon was a baseball bat or something that had been used frequently by everyone in the house? When you have a relatively small area frequently touched, it is possible that the strongest, cleanest latent print will develop from the residue deposited on the top of the rest, thereby making it the last or most recent time touched. But a storm door, I don't know. People touch doors in so many different ways, I don't know that I would testify to any print developed on a door being the last person to have touch it. Especially since I know latent print residue can hang around for years on a surface.
Finally, the "freshness" debate. This is knowledge that gets honed with time. Old-timers with years of processing experience know when they develop a fresh print and when it's old. Fresh prints seem to "grab" the powder better and develop darker and stronger. Older prints develop much more pale and spotty as the residue has dried out and won't grab the powder. I know of one study on aging prints that was so severely criticized, I think everyone has been scared away from THAT kind of research. Not being a button-counter, myself, I really don't care how many charts and graphs and molecular displays you have to prove what I already know. As an expert witness I am giving my opinion. That opinion has been formed from 22 years of experience--not a research study. Not that I am against research. I think the recent research study done proving you can't turn an ordinary latent print into a bloody one was well-done and timely.

[L.J.Steele]

Now the "high traffic area" issue is a little more cloudy. If I remember, didn't you bring up a case a while ago where the murder weapon was a baseball bat or something that had been used frequently by everyone in the house?

Baseball bat wasn't mine, I don't think. The homicide in this case was by gunshot.

Finally, the "freshness" debate. This is knowledge that gets honed with time.

I thought the canonical answer in the books and journals was that one can't realiably determine "freshness" and one oughtn't testify to it. Am I mistaken on this?

As an expert witness I am giving my opinion. That opinion has been formed from 22 years of experience--not a research study. Not that I am against research.

If I am right in my recollection that the books and journals are in agreement that one oughtn't try to testify to freshness, then if the defense counsel objected, I think the trial judge would exclude that specific claim under Daubert as lacking the appropriate peer reviewed support. And if so, it seems an area worth at least taking up with the examiner's supervisors if one comes across it post-trial.

For those of you who deal with examiners who are neither IAI members, nor in ASCLD certified labs, but work in small police department units, any thoughts on who to approach there? Internal Affairs? The Chief's Office?

[Michele]

I agree that you can't age a print by looking at it. Here's why:

When the powder easily adheres to the print it could be because the matrix is a substance that powder easily adheres to, in both fresh prints and old prints. As an example, when someone is working on the engine of a car they get grease on their hands. If they touch something (like a coffee cup), the matrix is such that it may change over time but it doesn't evaporate. You can powder the touched surface a year from now and the processed latent will look dark, just like some fresh prints, but this doesn't mean the latent that was left is really fresh.

And the reverse situation is also true. If the matrix isn't a substance that powder easily adheres to then it doesn't matter if the print is fresh or not, the processed print will be very light or may not even be visible. In this situation even a fresh print may have the same appearance of an older print.

Experiments to show this is true are easy. As McComas states, "the only truly conclusive knowledge produced by science results when a notion is falsified"

[David L. Grieve]

My agency would welcome comments concerning "questionable" testimony and the matter would be investigated. Our personnel are required to provide comment cards at each court appearance, one for the prosecution, one for the defense and one forwarded to the judge. We rarely get comments from judges, but we do follow up if any comments suggest something may be improper or inaccurate. I have been asked to review transcripts in these instances and to report my assessment.

Our experience is that most defense attorneys are forthright in giving praise when deserved and rarely make negative responses unless warranted. But I do know agencies that react to unfavorable comments from the defense as just sour grapes. That is unfortunate, but if I were you, I would give it a shot.

As to your examples, these are not surprising but, as noted, inaccurate. No speculation as to age or last touched based upon appearance is reliable. Even certain mitigating circumstances may be misleading. I recall publishing a case report a latent print was recovered from a ceramic tile floor. The floor was cleaned with a string mop every other day. Test prints placed on the tile and mopped several times were still recoverable. As to conjecture based upon personal experience, I am reminded that the Romans believed banging their swords on their shields frightened away elephants, for no army making this racket even encountered an elephant. So for two hundred years, guards stationed in the Alps did so at the passes. Then along came Hannibal.

[Steve Everist]

I am reminded that the Romans believed banging their swords on their shields frightened away elephants, for no army making this racket even encountered an elephant. So for two hundred years, guards stationed in the Alps did so at the passes. Then along came Hannibal.

So David,

How was it that you managed to escape Hannibal?

[Pat A. Wertheim]

What can be done about a fingerprint examiner or crime scene technician who gives false or misleading testimony?

1. If the person is IAI Certified, file a complaint with the appropriate certification board.

2. If the person is an IAI member, but not certified, file a complaint with the IAI Ethics Committee.

3. If the person is not an IAI member, file a complaint with the person's department and make sure every other attorney, defense and prosecution alike, knows about it and uses it to impeach the witness on every future court appearance.

4. If the person's department does nothing, that should not surprise you. Some police agencies readily admit wrongdoing and move quickly to make things right, but too many others stonewall, bury their heads in the sand, or sweep the dirt under the rug.

And if all else fails, you can fall back on the old philosophy all police personnel console themselves with when they lose a case -- "We will get you next time."