I volunteered to go to court on a questioned identity case verified by a former employee. (think Ten Print) I was eager to get on the stand, considering I'm relatively new and have never been. I don't have to testify until December, and I'm curious as to what people on this board think I should brush up on.
any and all comments welcome
Boyd
First Time Testifying
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L.J.Steele
- Posts: 430
- Joined: Mon Aug 22, 2005 6:26 am
- Location: Massachusetts
- Contact:
1st Time on the Stand
I've had to testify a couple of times -- for an attorney being on the other side of the cross is quite nerve wracking experience.
Ask the prosecutor who represents the defendant. Either the prosecutor or folks in your office can likely tell you about that person's style if they've been around for a while. (That doesn't mean that someone can't try something new, but it is a good place to start.)
If you don't already know, find out if the fingerprint is a major or minor bit of evidence in the case.
If, for example, there is a confession, a couple of eyewitnesses, DNA, and the print, defense counsel is unlikely to fight hard on the forensics -- there's too many targets he or she would have to defeat in order to convince the jury of reasonable doubt -- the plan will likely be one of mitigation (he was there but...). You may want to bone up on material about "aging" fingerprints and what the position, deposition pressure, etc. tells you about what the culprit was doing.
If, on the other hand, the print is the sole evidence inculpating the defendant, you may have a fight on your hands. This would be good time to bone up on Mayfield, Cowans, and the other mis-ID cases and be ready to explain why your case is different from those.
In general -- make sure your documents on chain of custody within the lab are ready for court. If you didn't make the enlargments to be used as trial exhibits, go over them and make sure they are clear and correct. Go over the office protocols as used by the person who reached the opinion. Make sure they followed the correct procedures. If you've got time, you may want to go thru the ID from scratch and make sure you agree -- then it isn't as much about what the prior examiner thought as about what you think. (This will, obviously, raise a confirmation bias issue as you know the expected answer -- think about the topic and how you might answer questoins about the effect of knowing the answer on your analysis.)
You will likely be asked to explain the basic assumptions of fingeprint matching (uniqueness, permanence) and methods -- you may want to think about a short, informative response. You may get asked questions that aren't entirely in your field about how the print was located, documented, lifted etc. (if done by a crime scene person and not your office).
General thoughts:
Have your resume ready and up to date. Double check it for typos or wrong dates.
Listen to the question and answer it. If you don't understand the question you can ask. If the questioner is using technical terms incorrectly, see if you can find a way to give a correct answer without sounding argumentative or like a smart-#$$@.
If there's an objection, stop answering and wait for the judge to rule. If the judge overrules the objection, you can answer. If you don't recall the question, ask for it to be repeated.
If you think there should be an objection, pause before answering to give the prosecutor time to react.
Don't let either side turn you into a partisan, get you angry, etc. -- you're there to testify about evidence. The jury decides guilt.
Try not to get lost in jargon -- the jury will thank you for this.
Pay attention ot the jurors as you give explanations -- if you have a series of blank faces, then you need to explain more. If they seem to understand, then you can wrap up.
As soon as you come near the courthouse, get into witness mode. You may encounter jurors on the street, parking lot, halls, etc. You don't want to make a bad impression when you aren't "on stage". Same thing when waiting in the courtroom before and after testifying. (And remember that you can't talk to jurors outside the courtroom, you can politely decline casual conversation by saying you are a witness in a case. (Jurors usually have an ID badge just to avoid this problem.))
Ask the prosecutor who represents the defendant. Either the prosecutor or folks in your office can likely tell you about that person's style if they've been around for a while. (That doesn't mean that someone can't try something new, but it is a good place to start.)
If you don't already know, find out if the fingerprint is a major or minor bit of evidence in the case.
If, for example, there is a confession, a couple of eyewitnesses, DNA, and the print, defense counsel is unlikely to fight hard on the forensics -- there's too many targets he or she would have to defeat in order to convince the jury of reasonable doubt -- the plan will likely be one of mitigation (he was there but...). You may want to bone up on material about "aging" fingerprints and what the position, deposition pressure, etc. tells you about what the culprit was doing.
If, on the other hand, the print is the sole evidence inculpating the defendant, you may have a fight on your hands. This would be good time to bone up on Mayfield, Cowans, and the other mis-ID cases and be ready to explain why your case is different from those.
In general -- make sure your documents on chain of custody within the lab are ready for court. If you didn't make the enlargments to be used as trial exhibits, go over them and make sure they are clear and correct. Go over the office protocols as used by the person who reached the opinion. Make sure they followed the correct procedures. If you've got time, you may want to go thru the ID from scratch and make sure you agree -- then it isn't as much about what the prior examiner thought as about what you think. (This will, obviously, raise a confirmation bias issue as you know the expected answer -- think about the topic and how you might answer questoins about the effect of knowing the answer on your analysis.)
You will likely be asked to explain the basic assumptions of fingeprint matching (uniqueness, permanence) and methods -- you may want to think about a short, informative response. You may get asked questions that aren't entirely in your field about how the print was located, documented, lifted etc. (if done by a crime scene person and not your office).
General thoughts:
Have your resume ready and up to date. Double check it for typos or wrong dates.
Listen to the question and answer it. If you don't understand the question you can ask. If the questioner is using technical terms incorrectly, see if you can find a way to give a correct answer without sounding argumentative or like a smart-#$$@.
If there's an objection, stop answering and wait for the judge to rule. If the judge overrules the objection, you can answer. If you don't recall the question, ask for it to be repeated.
If you think there should be an objection, pause before answering to give the prosecutor time to react.
Don't let either side turn you into a partisan, get you angry, etc. -- you're there to testify about evidence. The jury decides guilt.
Try not to get lost in jargon -- the jury will thank you for this.
Pay attention ot the jurors as you give explanations -- if you have a series of blank faces, then you need to explain more. If they seem to understand, then you can wrap up.
As soon as you come near the courthouse, get into witness mode. You may encounter jurors on the street, parking lot, halls, etc. You don't want to make a bad impression when you aren't "on stage". Same thing when waiting in the courtroom before and after testifying. (And remember that you can't talk to jurors outside the courtroom, you can politely decline casual conversation by saying you are a witness in a case. (Jurors usually have an ID badge just to avoid this problem.))
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Charles Parker
- Posts: 586
- Joined: Mon Jul 04, 2005 6:15 am
- Location: Cedar Creek, TX
Testifying In Court
Dear Boyd:
Ditto on what Ms Steele said.
Also they cannot kill you or eat you. Be yourself, but be professional.
Ditto on what Ms Steele said.
Also they cannot kill you or eat you. Be yourself, but be professional.
Knuckle Draggin Country Cousin
Cedar Creek, TX
Cedar Creek, TX
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RL Tavernaro
- Posts: 194
- Joined: Tue Jul 05, 2005 5:42 pm
- Location: Phoenix, AZ
Boyd,
You mentioned this is a questioned identity case, apparently as in a tenprint identification. Do you know if it is part of the case in chief, or as proof of a prior (testimony usually given after conviction in the current case to proove a prior conviction, & typically related to more severe sentencing)? Will the testimony be before a jury, or only a judge?
Many of the following suggestions apply to both, however some are more suitable in testimony to a jury:
1 - Be prepared; as others have noted, review your case beforehand; attempt to arrange a pre-trial interview with the prosecutor; give the prosecutor a copy of your statement of qualifications (or equivalent), a suggested list of qualifying questions that you will be comfortable with, and (if your training qualifies you to do so), a suggested list of basic questions to establish the identity of the subject within your field of expertise. It is often helpful to have an extra copy of statement of qualificaitons available for the defense as well.
2 - Listen carefully to each question, whether from the prosecutor or defense attorney... look at the person asking the question.
3 - Turn to the jury to answer questions when appropriate, especially with longer answers. Attempt to acknowledge the jury even when giving shorter answers. Do not zero in on the prosecutor or defense attorney to the exclusion of others when giving answers.
4 - For many examiners, becoming something of a teacher on the stand works well. Explaining things as a teacher would instruct a beginning student can be very effective. Have a good idea of how you are going to explain how fingerprint identifications are made, and why a fingerprint identification is valid.
5 - Attempt to make eye contact with each juror during the course of your testimony. Try & determine if your testimony is being understood by observing the jury. Adapt as necessary.
6 - If technical jargon is used, define the terms for the jury in language they can understand. It not only helps the jury do their job, but demonstrates your expertise and enhances your credibility.
Good Luck!
You mentioned this is a questioned identity case, apparently as in a tenprint identification. Do you know if it is part of the case in chief, or as proof of a prior (testimony usually given after conviction in the current case to proove a prior conviction, & typically related to more severe sentencing)? Will the testimony be before a jury, or only a judge?
Many of the following suggestions apply to both, however some are more suitable in testimony to a jury:
1 - Be prepared; as others have noted, review your case beforehand; attempt to arrange a pre-trial interview with the prosecutor; give the prosecutor a copy of your statement of qualifications (or equivalent), a suggested list of qualifying questions that you will be comfortable with, and (if your training qualifies you to do so), a suggested list of basic questions to establish the identity of the subject within your field of expertise. It is often helpful to have an extra copy of statement of qualificaitons available for the defense as well.
2 - Listen carefully to each question, whether from the prosecutor or defense attorney... look at the person asking the question.
3 - Turn to the jury to answer questions when appropriate, especially with longer answers. Attempt to acknowledge the jury even when giving shorter answers. Do not zero in on the prosecutor or defense attorney to the exclusion of others when giving answers.
4 - For many examiners, becoming something of a teacher on the stand works well. Explaining things as a teacher would instruct a beginning student can be very effective. Have a good idea of how you are going to explain how fingerprint identifications are made, and why a fingerprint identification is valid.
5 - Attempt to make eye contact with each juror during the course of your testimony. Try & determine if your testimony is being understood by observing the jury. Adapt as necessary.
6 - If technical jargon is used, define the terms for the jury in language they can understand. It not only helps the jury do their job, but demonstrates your expertise and enhances your credibility.
Good Luck!
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Gerald Clough
- Posts: 557
- Joined: Wed Jul 06, 2005 6:27 am
- Location: Lockhart, Texas
- Contact:
A couple of things from a great many appearances in criminal court as case officer.
Answer questions as briefly as possible, consistent with truthful accuracy. It's a great mistake to keep on talking after you've properly answered the question. Good attorneys know to leave some silence and see if you'll run off at the mouth, often leaving them something to work on.
(On the other hand, I've had some attorneys who just couldn't bring themselves to stop asking questions until they had kicked open doors that the State could never have explored.)
And you should never feel pressed to such things as yes-or-no answers where such an answer would me misleading. It's perfectly okay to respond that it can't be answered yes-or-no without being misleading. It's okay to say that your answer requires explanation to be accurate. The judge will support you in this.
Really, there's unlikely to be anything very sinister. But I know one lawyer who will seek out a State witness in the hall and try to insult him enough to get him pissed off and rattled.
But I'll again mention the pre-trial conference. It's nice to know what in general to expect, and you can clear up any misconceptions the attorney has.
Answer questions as briefly as possible, consistent with truthful accuracy. It's a great mistake to keep on talking after you've properly answered the question. Good attorneys know to leave some silence and see if you'll run off at the mouth, often leaving them something to work on.
(On the other hand, I've had some attorneys who just couldn't bring themselves to stop asking questions until they had kicked open doors that the State could never have explored.)
And you should never feel pressed to such things as yes-or-no answers where such an answer would me misleading. It's perfectly okay to respond that it can't be answered yes-or-no without being misleading. It's okay to say that your answer requires explanation to be accurate. The judge will support you in this.
Really, there's unlikely to be anything very sinister. But I know one lawyer who will seek out a State witness in the hall and try to insult him enough to get him pissed off and rattled.
But I'll again mention the pre-trial conference. It's nice to know what in general to expect, and you can clear up any misconceptions the attorney has.
"Nothing has any value, unless you know you can give it up."
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L.J.Steele
- Posts: 430
- Joined: Mon Aug 22, 2005 6:26 am
- Location: Massachusetts
- Contact:
First Time Testifying
Let me throw in a couple more thoughts.
You aren't just speaking to the jury and the trial judge, tho that is a very important audience. If the defendant is convicted, likely an appellate attorney and one or more habeas attorneys will order transcript and will go over it very carefully. So you are speaking to the appellate court and the habeas court too. If you demonstrate things, try to make it clear in your verbal explanation what you are doing and which exhibits you are handling.
Try to stick to the text-book explanations and techniques -- if you are using a method you or your lab has developed that's new and not yet supported by published literature, be ready to explain and defend it. Again, trial counsel may not catch this, but you may find yourself having to explain it to a habeas judge years, possibly decades, later.
Know what Ashbaugh, JFI, and other commonly used sources say about things like cluster/simultaneous prints, telling how old a print is, or whether the crime scene person could have found prints had he/she looked on a wet/rained-on surface, if applicable to your case. (A few of my pet peeves from trial transcripts.)
You aren't just speaking to the jury and the trial judge, tho that is a very important audience. If the defendant is convicted, likely an appellate attorney and one or more habeas attorneys will order transcript and will go over it very carefully. So you are speaking to the appellate court and the habeas court too. If you demonstrate things, try to make it clear in your verbal explanation what you are doing and which exhibits you are handling.
Try to stick to the text-book explanations and techniques -- if you are using a method you or your lab has developed that's new and not yet supported by published literature, be ready to explain and defend it. Again, trial counsel may not catch this, but you may find yourself having to explain it to a habeas judge years, possibly decades, later.
Know what Ashbaugh, JFI, and other commonly used sources say about things like cluster/simultaneous prints, telling how old a print is, or whether the crime scene person could have found prints had he/she looked on a wet/rained-on surface, if applicable to your case. (A few of my pet peeves from trial transcripts.)
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Michele Triplett
Lisa,
I don’t mean to change the subject but I have a question about
I would say that Ashbaugh supports identifications with simultaneous impressions. Where did Patterson’s attorney and the Judge get their information from?
Michele
michele.triplett@metrokc.gov
I don’t mean to change the subject but I have a question about
In the recent Daubert hearing of ‘The Commonwealth v Patterson’, Patterson’s attorney commented that Ashbaugh describes identifications of simultaneous impressions as some crazy thing done in Britain. Later in the preceding a judge commented that Ashbaugh said the use of simultaneous impressions to make identifications is Hokus-Pokus. Nobody argued against these statements. In Ashbaugh’s book he says, “An analysis of this nature is an advanced technique. The opposing prints on a piece of glass scenario may appear obvious, but it may not be as easy to defend in court without a clear rationale derived from a structured analysis. As this technique is considered an advanced technique, novices should seek advice from senior identification specialists before attempting a comparison where the sequence of two or more areas of friction ridge prints is an issue.”L.J.Steele wrote: Know what Ashbaugh, JFI, and other commonly used sources say about things like cluster/simultaneous prints
I would say that Ashbaugh supports identifications with simultaneous impressions. Where did Patterson’s attorney and the Judge get their information from?
Michele
michele.triplett@metrokc.gov
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Danny L. Harness
- Posts: 23
- Joined: Fri Jul 22, 2005 5:31 am
- Location: Xenia, Ohio
- Contact:
Courtroom testimony
Boyd,
You said that the person who verified the identification is no longer with you. Is this what you meant to say or did you mean…the person who made the original Ident.?
If the person who made the verification is no longer around; then, where is the original examiner?
If you are replacing the original examiner; then, where is the examiner who verified the Ident? Was the original Ident ever verified?
Make sure you are clear on what your position is in this case.
As far as advice is concerned, I would offer the following suggestion, which is one that helped me.
Consider the courtroom as a classroom where you are the instructor. When the judge qualifies you as an “Expert Witness”, he/she is in fact saying that you are the only person in the courtroom who is qualified to speak on the subject of fingerprint identification.
You understand and agree that the instructor, by default, knows more about fingerprints than any of the students in the class. The judge will have confirmed this when you are granted expert status. (What a confidence builder!)
In your classroom you have 14 students described as follows:
12 members of the Jury = These are the ones you need to pay close attention to. By their non-verbal cues, you should be able to tell if they are interested or bored in your testimony. If you learn to closely monitor them, you will always how you are doing at any given time.
The Prosecutor = This is your good student. During your PRE-TRIAL meeting make him/her aware of your experience level. (Remember we have all been in your situation)
The defense attorney = This is the student that concerns you the most. In not all, but in most cases, the defense attorney will not know exactly how to attack you. (However, with the Daubert issues, this may not be the case for long)
Remember that basically both the Prosecutor and the defense attorneys have their own agenda’s and they may try to influence your testimony. You are only speaking to the hard facts of what the evidence shows. This should take some of the pressure off of you.
I would also suggest that do some observing in the courtroom. If you can tag along when someone else is testifying you can get a …pressure free... experience as to the general courtroom environment.
When you testify, be sure that you have seen the courtroom layout beforehand. It can be a bit embarrassing to walk into the center of the room and not know where you are supposed to be. A pre-visit walk through is a must.
When you are approaching the witness chair, be careful! I find that not all chairs are equal. Some are firmly attached to the floor, some rock and recline (usually from ware and tare). This may sound a bit silly, but nothing can destroy your confidence faster than falling backwards in your chair as you sit down at the exact point you are being asked to spell your last name. (You can laugh at these situations later, don’t worry)
Overall you should do fine. Just make sure about the “Verified by and Identified by” terminology before you go in.
In our lab, we always ask the Prosecutor for a follow up evaluation of our testimony. This can be quite helpful in preparing for your next testimony. I often think that an evaluation from the jury would be more beneficial, but it may be harder to ascertain.
(QUESTION:) Does anyone else have opinions about –or- experiences with follow up evaluations from jury members?
Are you aware of Ron Smith’s class on Courtroom Testimony? Take a look at http://www.ronsmithandassociates.com/
Good luck and let us know how you did.
You said that the person who verified the identification is no longer with you. Is this what you meant to say or did you mean…the person who made the original Ident.?
If the person who made the verification is no longer around; then, where is the original examiner?
If you are replacing the original examiner; then, where is the examiner who verified the Ident? Was the original Ident ever verified?
Make sure you are clear on what your position is in this case.
As far as advice is concerned, I would offer the following suggestion, which is one that helped me.
Consider the courtroom as a classroom where you are the instructor. When the judge qualifies you as an “Expert Witness”, he/she is in fact saying that you are the only person in the courtroom who is qualified to speak on the subject of fingerprint identification.
You understand and agree that the instructor, by default, knows more about fingerprints than any of the students in the class. The judge will have confirmed this when you are granted expert status. (What a confidence builder!)
In your classroom you have 14 students described as follows:
12 members of the Jury = These are the ones you need to pay close attention to. By their non-verbal cues, you should be able to tell if they are interested or bored in your testimony. If you learn to closely monitor them, you will always how you are doing at any given time.
The Prosecutor = This is your good student. During your PRE-TRIAL meeting make him/her aware of your experience level. (Remember we have all been in your situation)
The defense attorney = This is the student that concerns you the most. In not all, but in most cases, the defense attorney will not know exactly how to attack you. (However, with the Daubert issues, this may not be the case for long)
Remember that basically both the Prosecutor and the defense attorneys have their own agenda’s and they may try to influence your testimony. You are only speaking to the hard facts of what the evidence shows. This should take some of the pressure off of you.
I would also suggest that do some observing in the courtroom. If you can tag along when someone else is testifying you can get a …pressure free... experience as to the general courtroom environment.
When you testify, be sure that you have seen the courtroom layout beforehand. It can be a bit embarrassing to walk into the center of the room and not know where you are supposed to be. A pre-visit walk through is a must.
When you are approaching the witness chair, be careful! I find that not all chairs are equal. Some are firmly attached to the floor, some rock and recline (usually from ware and tare). This may sound a bit silly, but nothing can destroy your confidence faster than falling backwards in your chair as you sit down at the exact point you are being asked to spell your last name. (You can laugh at these situations later, don’t worry)
Overall you should do fine. Just make sure about the “Verified by and Identified by” terminology before you go in.
In our lab, we always ask the Prosecutor for a follow up evaluation of our testimony. This can be quite helpful in preparing for your next testimony. I often think that an evaluation from the jury would be more beneficial, but it may be harder to ascertain.
(QUESTION:) Does anyone else have opinions about –or- experiences with follow up evaluations from jury members?
Are you aware of Ron Smith’s class on Courtroom Testimony? Take a look at http://www.ronsmithandassociates.com/
Good luck and let us know how you did.
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Boyd Baumgartner
- Posts: 567
- Joined: Sat Aug 06, 2005 11:03 am
Thanks to all those who replied. I appreciate all your experience and feedback.
With regards to some certain questions that were asked about the original verifier. This person no longer works for the department, I am testifying regarding the results this person made.
The Person's identity who was in question was positively identified to an individual who's fingerprints were on file.
With regards to some certain questions that were asked about the original verifier. This person no longer works for the department, I am testifying regarding the results this person made.
The Person's identity who was in question was positively identified to an individual who's fingerprints were on file.