You just can't help some people....

[Cindy Rennie]

I was in court yesterday, testifying in a Break and Enter case. The defense counsel thought that she had discovered a fatal error in my paperwork: I had verified the latent fingerprints to those of her client on November 22, 2006, but her client wasn't arrested until November 24, 2006.

A HA! How could I possibly know that those fingerprints were made by her client two days before he was arrested and fingerprinted?

Several answers popped into my head:

1. I held the latent fingerprint up to my forehead, closed my eyes and absorbed the vibes. The vibes told me it was her client.

2. Her client is on my Christmas Card list (i.e. repeat offender) and it was his turn to be identified again.

3. We had fingerprints of her client on file from a previous arrest.

I don't know how many times I had to explain to this lawyer that I identified her client's fingerprints on November 22nd from a set of fingerprints that we had on file from a previous arrest. I notified the investigator. The investigator investigated (as investigators are wont to do) and arrested her client on November 24th, at which point he was fingerprinted on these charges. THOSE are the prints that I brought to court.

It was against the rights of her client to bring any other fingerprints forward, since it is evidence of "previous bad character" and could be prejudicial. She didn't understand. Now I have to go back with the original set of fingerprints that were taken upon his first arrest.

Sheesh.

[Terry A. Smith]

Hi Cindy,

A month or so ago I was in Court here in Niagara and it was the Crown Attorney ( the D.A. for U.S. readers) who wanted the "file" prints entered into evidence, rather than the post-arrest tenprint card. Same deal, I tried to explain our practice but there was no convincing her. I also argued that we often use a tenprint from an outside agency, possibly thousands of miles away to make the initial comparison. Her response was that we'd simply have to subpoena the official recording them and the Crown would pay the travel costs involved.

Could it be that this concept has come from some local Legal publication or meeting ( readers....Cindy is only an hour up the road from me) ?

I've submitted an internal memo outlining my concerns on the topic but have no idea at what level it is in the chain of command here.

TAS

[Terry A. Smith]

Sorry...
The accused ended up entering a plea of guilty in the case. No tenprint or other evidence was called.
TAS

[Charles Parker]

Lately at night I have been studying the works of the great Texas Philosopher Ron White. Some of you may know him as 'Tater Salad'.

He tells this story that we can fix a lot of things in our life. If we are overweight we can exercise to fix it. Nose too long go to a surgeon and fix it. Car broke just take it in and fix it.

However, "YOU CAN'T FIX STUPID". As hard as we might try that is one thing that is beyond our means.


You Can't Fix Stupid----Ron White AKA 'Tater Salad"

"Stupid is as stupid does"-----Forrest Gump---Another Great Philosopher.

[L.J.Steele]

I will generally tell attorneys that they want to see the exemplar used for the comparison, but that should be done during the pre-trial investigation. (One wants to know about possible confirmation bias issues and to make sure that the print is indeed the client's -- record screwups have happened. Some versions of the Cowans mistake claim a mislabled exemplar was part of the problem.)

In general, if the exemplar is used in court, it needs to be sanitized to remove information about the subject's prior criminal record, in the same way that mug shots used in arrays are also sanitized. (The jury isn't stupid, of course, and can likely figure out what's going on if you made the ID before the arrest.) On the other hand, the attorney is right to say that the document you used to make the ID is the one that ought to be the court exhibit unless there's an agreement otherwise. There was a Mass cass a few years back where the defense deliberately wanted to use an unredacted exemplar, I think because of a confirmation bias issue and the prosecutor objected. I'm having trouble finding the cite this morning.

I've also suggested because of the prejudice issues, that a defense attorney might want to move, well before trial, for a motion in limine asking that the post-arrest prints be used as the exemplar where appropriate.

[L.J.Steele]

Found the case I was looking for -- Com. v. Vardinski, 438 Mass. 444, 780 N.E.2d 1278 (2003). Defense wanted to bring in the unredacted mug shot used in an array to show that the ID was a product of suggestion. (For some reason, I had recalled this as a fingerprint case.)

In State v. Leopold, 110 Conn. 55, 65, 147 A.2d 118 (1929), the Court declined to allow a defendant to show the jury notations on the back of a "rogues gallery photo" (which had been admitted to identify an accomplice) in order to show that the accomplice was a burglar, not an arsonist; the Court held that the accomplice's prior record was not relevant to the case.

I suppose a defendant could try to use any notations about his prior record on an exemplar in an effort to suggest that he was not the kind of person who would committ the crime in question, but that's a risky strategy. It might make more sense if an accomplice's exemplar showed a prior record for the same kind of crime if the defendant wanted to imply that the accomplice was the actual culprit and was trying to frame the defendant.

[josher89]

I say if the client's attorney wants to bring up his past record by requiring the original 10-print card be entered into evidence, let them. Then you can say that you used "this [old] 10-print card that was obtained from a previous arrest for burglary and that once you identified and had verified the latent from this [old] burglary, you compared it again to the client's arrest 10-print card for this (insert the crime here)." If they want to bring up their own client's past, let them shoot themselves in the foot. You had nothing to do with that part of it!

[Kasey Wertheim]

If they want to bring up their own client's past, let them shoot themselves in the foot. You had nothing to do with that part of it!

This is how I learned also. As a show of good faith, you can dance around this issue a couple of times. But if pressed by the attorney of the defendant, what can you do? It's their attorney, and it isn't going to result in a mis-trial if they bring it up.

Your quote also brings to mind a favorite all-time quote from the movie of all quotes - Airplane:

[related to the defendant for his crime, or the attorney for accepting the burden of representing a client and not being aware of the legal aspects of this]... "they bought their tickets... they knew what they were getting in to. I say, let 'em crash."

-Kasey

[L.J.Steele]

I say if the client's attorney wants to bring up his past record by requiring the original 10-print card be entered into evidence, let them. Then you can say that you used "this [old] 10-print card that was obtained from a previous arrest for burglary and that once you identified and had verified the latent from this [old] burglary, you compared it again to the client's arrest 10-print card for this (insert the crime here)." If they want to bring up their own client's past, let them shoot themselves in the foot. You had nothing to do with that part of it!

Just tread lightly here -- if it seems like you are gratitutously interjecting the client's prior record, you can provoke a curative instruction at best, and provoke the mis-trial at worst. You need to listen to the question, and make sure that if there are limiting instructions, you heed them.

From your PoV, this sort of testimony also could play right into a claim of confirmation bias -- and you may not know that's a defense theme until you've firmly waded into that briar patch. Best to be very cautious about mentioning prior convictions unless you are sure that it is ok to do so.

While the defense may not be able to claim mistrial, and will be unlikely to be able to claim prejudice on appeal, this sort of questioning may create a dandy ineffective assistance of counsel claim in habeas a few years down the line. Remember that the court's goal is for a fair trial and these cases can linger for years.

You want the jury to perceive you as an impartial expert, not someone interested in driving extra nails into the defendant's coffin.

[josher89]

LJ,

I totally agree with you...I wouldn't want to be the cause for a mistrial or be party to their defense of prejudicial testimony. I also like Mr. Wertheim's "show of good faith" as well. You can only do so much to avoid the hammer drop. We are supposed to be impartial witnesses and that's what I strive for every day. As a strictly latent print examiner, one might think it's easier to be impartial when all you know of a suspect is how many whorls they have on their right hand but as a crime scene investigator as well (when I see first-hand what bad guys do), I'm still trying to achieve that complete impartiality. With more time and experience, I will get there. And with people like you all (as ghost mentors), it will be easier.