KEPT - Keeping Examiners Prepared for Testimony

[Kasey Wertheim]

Disclaimer: The intent of this is to provide thought provoking discussion. No claims of accuracy exist.

Question – Prominent Cases:
Any questions about a prominent case (the Langill case, the Bryan Rose case, the Mayfield case, the Plaza decision, the Ricky Jackson case, etc).

Possible Answers:
a) The judge in the Rose case made a bad decision.
b) I wasn’t involved in the Mayfield case and I can’t speak about it without direct knowledge.
c) I’ve read the official court documents and I know that…….
d) That case happened years ago. At the time it occurred I read all the reports about it but I don’t recall the exact information right now.

Discussion:
Answer a: Don’t get caught repeating what you’ve heard. If you start to talk about a particular case then the attorney’s assume you can answer other questions, like why that was your answer. You don’t want it to end with you saying, “Well, that’s what I’ve heard”.
Answer b: While it’s not recommended for people to testify to rumors, it’s also not recommended to avoid speaking about these cases. Some cases are very prominent and a great deal of information has been published about these cases (information beyond speculation). If you can’t testify to the basic information on these cases then it could be interpreted that you’re not as knowledgeable as an expert should be.
Answers c or d: These answers are honest and professional. Examiners should try to remain as objective as possible when speaking of these cases.

[Kasey Wertheim]

Disclaimer: The intent of this is to provide thought provoking discussion. No claims of accuracy exist.

Question – On-Line Forums:
This could relate to any information on the internet or information in a newspaper article.

Possible Answers:
a) An on-line chat board may not be a reliable source of information because answers aren’t always as accurate or as comprehensive as they should be.
b) An on-line chat board may not be a reliable source of information because the answers may just be someone’s opinion and may not be tested or valid.
c) I’d have to read the entire thread to understand the context of this conversation.
d) I’m unfamiliar with forum and cannot comment on what was said.
e) Yes, I did say that but I meant…..
f) I can’t comment on this because I don’t know if they were referring to a specific incident, a specific case, or rules that only affect a specific jurisdiction.
g) I am aware that this was said but I don’t know what this person was basing this information on.
h) I’ve seen this image on the internet but I can’t vouch for the authentication of the image.

Discussion:
I’ve heard several people state that attorney’s are bringing up information from on-line forums during interviews or testimony. Some people use this as a reason not to post on these forums and others use this as a way to slight those who do post. On-line forums or blogs can be very informative and therefore I don’t believe people should discourage their use. It’s more important that we understand the context of the information and not be afraid to answer to this if this comes up in court.
Answers a, b, c, d, f, g and h: These are all appropriate answers.
Answer e: I would discourage any discussion that sounds like the examiner is being defensive. These on-line forums are a valuable source of information but need to be kept within the appropriate context. Although they may be valuable at a specific time for a specific topic, the information from these conversations may not be as useful during a trial or to determine the expertise of a practitioner.

[Pat A. Wertheim]

In a trial a year or so ago, the defense attorney had printed off just about every post I have ever made on this forum. He cross examined me for five or ten minutes on comments I had made in various cases. In every question that contained a quote, that quote had been taken out of context. Most of the comments I could remember, but for one or two of the quotes, I asked to see the page with the entire post. Once I did, I could put the sentence back into the context of the paragraph in which the sentence had a different meaning than that the defense attorney was trying to imply. I was very impressed with that defense attorney. He had really done his homework. He must have spent hours combing through this site, reading and looking for sentences that he could "spin." But because I didn't get rattled and simply put the statements back into the context in which they had originally been made, it actually worked to my advantage to show that I was open.

The case was a vehicle burglary. A broken down vehicle was in the driveway and hadn't been driven in a couple of months. Victim came out of her house in the early morning to leave for work. The broke down car's driver door was standing open and the car had been burglarized during the night. Police found a latent print on the inside of the driver's door window. AFIS hit on the defendant. Jury found him not guilty of the burglary. They accepted completely that the fingerprint was his. But because you cannot determine the age of a print (to which I had readily agreed when asked by the defense attorney), the jury felt that the single fingerprint on the inside of a driver's door of a broke down car left open did not prove "beyond a reasonable doubt" that the defendant had committed the burglary. There was no other evidence whatsoever, and I had felt from the start it was a weak case. I did not disagree with the jury's verdict. I was certainly impressed with the amount of homework the defense attorney had done preparing for the case.

[g.]

Most of the comments I could remember, but for one or two of the quotes, I asked to see the page with the entire post. Once I did, I could put the sentence back into the context of the paragraph in which the sentence had a different meaning than that the defense attorney was trying to imply.

Pat, I am curious. How did you "put it back in context".

I ask, because the same thing has been done to me. In my case, the attorney simply asked me to "read the highlighted sentences" aloud. Once I read them, followed up with "and did you write that?". I never had an opportunity to say, "yes and I wrote the other stuff around it that you did not highlight, that puts those comments into perspective." And the prosecutor wasn't knowledgeable enough to really look at the writings and understand the context.

So how did you do it? I considered in my head literally saying what I just wrote above, but it would have most likely been beyond my duty as a witness, possibly irritated the judge (there was no jury), and it really was the prosecutor's job to follow up and inspect those documents.

This attorney didn't give an opening, just "read this and did you write it"...and then moved on. No comments about it, no follow up, just had me reading my clipped statements.

g.

[Pat A. Wertheim]

Hi Glenn

I am not a subscriber to the old adage, "Only answer the question asked." I believe it is my responsibility to ensure to the best of my ability that the jury understands both what I said and what I meant. For that reason, I will keep going beyond what either the prosecutor or the defense attorney asks, if I think the short answer would be misleading. In the example you give, if I were instructed by opposing counse to "read only the highlighted sentences," I might read the section and then quickly shift my eyes to the judge or jury and tack onto the end, "but taking this out of context is misleading." That serves as a warning to both the judge and the calling attorney that it would not be proper to leave the topic at that point. I might also subtly challenge the opposing attorney by reading a sentence more than he instructed me to read. The worst that could happen is the judge would admonish me for going beyond what I was asked and instruct the jury to disregard part of what I said, but that is a signal to the calling attorney to bring it back up on recross. Most of the time, I can explain my answers, even to opposing counsel's questions, without drawing an admonishment from the judge. And if opposing counsel cuts you off and won't let you finish, you have accomplished two things: 1) the jury knows there is something else you want to say and they know opposing counsel does not want them to hear it, and 2) your calling attorney has been sent a strong signal to bring it back up to you on recross.

Another thing to consider is that, in the example you gave, there was no jury, only a judge. The prosecutor may have known the judge would not be swayed by the defense attorney's trick, or he may have had a response to use if the defense attorney brought it back up in closing. Sometimes the prosecutors really do dumb things, but sometimes there are other factors or other evidence of which we are unaware, and our answers are inconsequential in the overall case. Those times, I think the prosecutors just let the "bad" answers go on the record rather than make a bigger issue out of them than they merit.

[Gerald Clough]

In somewhat different questioning, the sort where the question seeks a "yes or no" sort of answer, I've gone so far as to address the judge with, "Your honor, I can't answer that way without it being a misstatement." Sometimes, the judge has said, "Answer in a way that reflects the truth" or "Answer the best you can.", which is pretty much an invitation to expound and often brings on an, "I withdraw the question." Doesn't matter - it should still put even the densest prosecutor on notice that it needs follow-up.

My attitude to the specific kind of thing under discussion is that, if I'm reading my own words, those words become my testimony, and I'm not out of line expressing my disagreement with the meaning of the isolated statement. I've had it tried with out-of-context quotes from investigation narratives. It's sometimes fun in a small jurisdiction where we all know each other well. The judge, who knows I won't do anything too radical, has seemed to enjoy playing along and frustrating the attorney's attempt to twist things. I can do a lot of resisting in that setting.

[Pat A. Wertheim]

The judge has an ethical obligation to prevent anything that would mislead the court. Those last three words can work magic. When an opposing attorney is trying to elicit an improper answer, you can turn to the judge and plead, "Your Honor, if I am forced to answer the question that way, I am afraid it will mislead the court. I need to explain my answer." Any judge who would refuse to allow you a brief explanation after that would have allowed a serious error into the record.

[L.J.Steele]

The judge has an ethical obligation to prevent anything that would mislead the court. Those last three words can work magic. When an opposing attorney is trying to elicit an improper answer, you can turn to the judge and plead, "Your Honor, if I am forced to answer the question that way, I am afraid it will mislead the court. I need to explain my answer." Any judge who would refuse to allow you a brief explanation after that would have allowed a serious error into the record.

This is the sort of response that is probably best reseved for dire situations, especially if it is being given in front of a jury. In effect, you're accusing the defense attorney of trying to pull a fast one (which may be true) and that may provoke a motion for mistrial. Things may come to a dead stop while the problems created by your answer are debated (likely outside the jury's presence), and the actual point you were trying to make gets lost.

I don't have a good suggestion beyond working with the attorney who's calling you. Your body language and tone are likely to say plenty, although that won't make it onto the transcript. I prefer the approach of asking to explain, or saying "its not that simple", to all-but accusing the attorney of deliberately misleading the fact finder.

Judges and juries aren't stupid. They are likely to understand what's going on when you are being forced to read a script and aren't being allowed to explain. They are likely to figure out that they are only getting part of the story, and be waiting for the other part to come out on re-direct. If it doesn't come out, that may be a problem -- the significance may depend on how important your testimony is in the overall case.

The goal here is a fair trial -- dueling with the attorneys can be fun, but don't let it distract you from being an impartial witness.

[Pat A. Wertheim]

The judge has an ethical obligation to prevent anything that would mislead the court. Those last three words can work magic. When an opposing attorney is trying to elicit an improper answer, you can turn to the judge and plead, "Your Honor, if I am forced to answer the question that way, I am afraid it will mislead the court. I need to explain my answer." Any judge who would refuse to allow you a brief explanation after that would have allowed a serious error into the record.

This is the sort of response that is probably best reseved for dire situations.

Thank you, Lisa. I never meant to imply that I throw that answer out at the slightest provocation. My usual response to a demand for a yes or no answer, when I need to explain, is to turn to the judge and say merely that I cannot answer with a simple yes or no and I need to explain my answer. In most cases, the judge has allowed a brief explanation. I save the "mislead the court" appeal only in the dire situation you suggest. Most prosecutors are attentive, but I have testified for some who are not. I try to give them the benefit of the doubt because I do not know what is going on with the rest of the case. But there have been times when an inattentive prosecutor and an aggressive defense attorney have led me to defend myself in the interest of keeping the evidence itself unbiased. The "mislead the court" comment is another tool to keep in mind for those dire situations.

[L.J.Steele]

My usual response to a demand for a yes or no answer, when I need to explain, is to turn to the judge and say merely that I cannot answer with a simple yes or no and I need to explain my answer. In most cases, the judge has allowed a brief explanation.

This reminded me of a war story -- appeal I handled a few years back of a bank robbery case. Defense was mistaken ID -- client was seen by police responding to the robbery call jogging in the area. An officer stopped him and did a pat down -- no money or weapons. Client wanted to testify (as is his right). The entirety of the testimony was something to the effect of...

Attorney: "Did you rob the bank?"
Client: "I can't answer that yes or no".
Attorney: "No further questions."

(The client commented at his sentencing hearing that he had intended to deny robbing the bank, but wanted to complain to the jury about his treatment by police. Sadly, that answer made it much harder to argue that he'd been harmed by anything that arguably went wrong in his trial.)

But there have been times when an inattentive prosecutor and an aggressive defense attorney have led me to defend myself in the interest of keeping the evidence itself unbiased.

Been there myself when called in a habeas case as either a fact witness (client is alleging ineffective assistance of appellate counsel) or as an expert on appellate procedure -- it is darned frustrating and a bit nerve-wracking to be at the hands of other counsel.

To back to the original question: how the trial judge handles this problem and whether there's any risk of creating a serious error depends a bit on who's calling you as a witness and on whether the defendant is convicted.

In general, evidentiary issues are reviewed on appeal for abuse of discretion -- sometimes clear or manifest abuse of discretion -- and the losing party has to prove harm. Constitutional errors -- such as infringement on the right to a fair trial -- get a higher level of review, tho still appellant's burden to prove the error existed, and, if the issue was properly preserved, the prosecution has to prove the error was harmless. The original ruling -- can you explain your answer -- is an evidentiary issue. If you make a comment that the judge thinks may have biased the jury, it may become a constitutional issue.

Now, how would this decision get reviewed? In a criminal trial, the prosecution rarely gets a chance to appeal an unfavorable trial court decision. If the defendant is acquitted, then normally the prosecutor can't appeal. If the defendant is convicted, his or her appellate attorney will be taking the appeal and probably wouldn't appeal a ruling that favored the defense (cutting you off if you are testifying for the prosecutor), but would appeal the same ruling if you were a defense witness. The prosecution can sometimes cross-appeal, but these seem pretty rare.

The net result is that even if the judge cuts you off, and ignores your plea to explain to avoid misleading the fact-finder, odds are that his or her ruling is safe from appellate reversal if either (1) you are testifying for the defense and the defendant is acquitted or (2) you are testifying for the prosecutor, regardless of the outcome. As I said, I've been on the stand myself and I understand the frustration -- take a deep breath before y'all decide what to do from there.

[clpexco]

Disclaimer: The intent of this is to provide thought provoking discussion. No claims of accuracy exist.

Question – Analysis Phase:
Can you explain the Analysis phase of ACE-V?

Possible Answers:

a) I’m looking for sufficiency, to see if there’s enough for me to work with.

b) I’m looking to see how much level 1 detail, level 2 detail, and level 3 detail exists and I determine if there’s enough for me to move on to the comparison phase.

c) I’m collecting information which includes orientation, direction, ridge flow, pattern type, ridge color, clarity (contrast level, distortional aspects).

Discussion:
The analysis phase can be described in a variety of ways. My initial thought is that it’s not really important how you describe it, but the truth is that if several people are testifying in the same case (which is happening more and more every day) and they describe anything differently then it appears as though there’s not a uniform method. The difference in explaining something could also make it appear that one of the practitioners isn’t as knowledgeable as they should be. To insure this isn’t the interpretation left in court we do need to have similar explanations.

Answer a: This isn’t a bad answer but it really doesn’t describe the analysis stage. I think it describes a pre-analysis stage or a quick assessment of what may be on a lift card.

Answer b: This isn’t a bad answer either but it brings in a lot of terms that the court may not be familiar with. Using an answer like this may result in you having to do a lot more explaining than is necessary.

Answer c: This is a simple answer that can easily fit into most agencies use of the analysis phase. It states ‘what’ you’re doing (collecting information) without stating ‘how’ it should be done. This would fit agencies that print pictures of a latent print and mark the level 2 details and it would also fit agencies that just do a visual inspection. This conclusion also conforms to the scientific method of hypothesis testing (where the first stage is to collect data).

[Gerald Clough]

c) I’m collecting information which includes orientation, direction, ridge flow, pattern type, ridge color, clarity (contrast level, distortional aspects).
...

Answer c: This is a simple answer that can easily fit into most agencies use of the analysis phase. It states ‘what’ you’re doing (collecting information) without stating ‘how’ it should be done. This would fit agencies that print pictures of a latent print and mark the level 2 details and it would also fit agencies that just do a visual inspection. This conclusion also conforms to the scientific method of hypothesis testing (where the first stage is to collect data).

Just some reflections from doing all sorts of testimony, including fingerprint. First, too much uniformity is also not good. If two official witnesses answer any technical "how do you?" or "what it it?" question with a formula answer, it sounds like the generic response, rather than their own. I do see the point of this in avoiding the impression that they're not in agreement. But I think that when we use technical language, it's either going to be two answers with the same technical response that sounds like a rote answer or it's going to be two answers with different magic words that become even more confusing.

I don't take exception with the approach. But I think that this answer only works if prior questions have set up an understanding of what is meant by orientation, direction, ridge flow, etc. A jury can't take it in if the terms have no clear meaning for them at the time they hear them. If I've already explained what these are, fine. If not, I can't cure that in follow-up questions unless I circle all the way back around to this question again. There are too many terms strung together for the jury to use later explanation to clarify the question in retrospect.

It's not a matter of two agencies having different methods. None of the answers implied any difference in whether there was simply a visual survey or if the image was marked up. "c" was certainly the best of the three given answers, but "c" isn't really sufficient unless the ground work was done. Sorry. I've drifted far afield of the simple point being made by the offering of answers to the question, but I found it difficult to deal with in isolation. If we're worried about the proper response to this question, we're presuming that the opposing counsel is knowledgeable beyond the average, and we have to keep the jury on very firm ground at every step. If I'm that knowledgeable attorney, we're for sure going to get around to the mark-up/simply-visual issue, anyway.

[clpexco]

by Michele Triplett, King County Sheriff's Office

Disclaimer: The intent of this is to provide thought provoking discussion. No claims of accuracy exist.

When you did your comparison did you go back and forth between the latent and the known print?

Possible Answers:
a) No, because that would create circular reasoning.
b) No, because if you do this then you’re at risk for making the latent print fit the known print.
c) Yes, I move back and forth between the latent and the known.
d) Yes, I move back and forth between the latent and the known print, confirming the characteristics between the images are the same.

Discussion:
This question is implying that bias is created if you don’t do a full analysis of the latent print prior to moving to the comparison phase. The key factors in arriving at a conclusion of individualization are consistency between the two prints and a sufficient amount of information to arrive at that conclusion. ‘When’ someone noticed a characteristic was consistent isn’t a factor in establishing if that characteristic can or should be used. The decision to use a characteristic should be based on the reproducibility of that feature and any visual distortional information that may go along with that characteristic.

Answer a: Going back and forth is a circular process which is different than circular reasoning.

Answer b: Going back and forth may increase the tendency to make the latent fit the known print and as experts we need to understand this phenomenon and account for it. Scientific methods allow us to use a circular process as long as we understand the shortcomings and protect against them when it’s needed (perhaps with blind verification or peer review).

Answer c: Some books and articles promote using ACE as a linear process to prevent bias from being introduced into the comparison process. This will diminish bias but too much valuable information can be lost by using ACE in a linear fashion. Science promotes using a circular process by encouraging re-evaluating your own work as well as re-evaluation of the work of others. Science also promotes going back to the beginning of any experiment and collecting more information to test your conclusion. Science accounts for any bias that could be introduced by using other quality assurance measures.

Answer d: This answer is the same as c with the additional ‘confirmation’ statement added. This word should be avoided because scientific methods discourage confirmation and promote trying to falsify what we think is true. Trying to falsify our beliefs will insure we aren’t drawn into biasing factors and insures we aren’t trying to make the images match.

[clpexco]

by Michele Triplett
King County Sheriff's Office

Disclaimer: The intent of this is to provide thought provoking discussion. No claims of accuracy exist.

Question – Concerns over Blind Verification:
What would some concerns be when doing blind verification?

Possible Answers:
a) Since the original evidence has the conclusions written on it, how do we recreate the evidence and not jeopardize the quality of the images.
b) If we use reproduced images then it’s not a true representation of the original evidence.
c) It’s time consuming and we don’t have the time to do this on every case.
d) One concern is that people think blind verification is the best quality assurance measure but it doesn’t look at the reasons behind a conclusion, which is a scientific protocol.
e) Blind verification has a place in looking at reliability but it shouldn’t be used as a replacement for peer review.

Discussion:
This is the perfect opportunity to say that blind verification isn’t the best quality assurance measure. It looks for reliable conclusions but it doesn’t insure the principles and methods used were reliable enough to be used.

Answers a and b: We may not be able to reproduce images that are exactly like the originals but it is possible to duplicate images so they’re an adequate representation of the of the originals.

Answer c: This is a truthful statement but it disregards the fact that blind verification isn’t needed in every case. Blind verification is a tool to protect against bias and bias is only a problem when alternative conclusions are plausible (in complex comparisons).

Answers d and e: I think both of these answers educate the courts about blind verification.

[L.J.Steele]

c) It’s time consuming and we don’t have the time to do this on every case.
d) One concern is that people think blind verification is the best quality assurance measure but it doesn’t look at the reasons behind a conclusion, which is a scientific protocol.
e) Blind verification has a place in looking at reliability but it shouldn’t be used as a replacement for peer review.

Answer c: This is a truthful statement but it disregards the fact that blind verification isn’t needed in every case. Blind verification is a tool to protect against bias and bias is only a problem when alternative conclusions are plausible (in complex comparisons).

Answers d and e: I think both of these answers educate the courts about blind verification.

(c) does raise the obvious follow-up question about what objective criteria are used to determine when blind verification is appropriate and if your office has ever used it. This can lead you into a discussion about why this comparison isn't complex. (And could be a problem if it is arguably complex and you haven't done a blind comparison.)

(d) gets you back into a discussion of ACE-V and what the "v" entails. If you're already in a thicket of issues about confirmation bais and the original examiner, then this answer isn't going to lead you out of the woods.

(e) again gets you back to the follow-up questions about what that place is, what the criteria are, and if you or your office has ever examined anything that fit that criteria. Again, if you are in the thicket of confirmation bias, non-blind peer review isn't going to get you out. It may also lead you into questions about relationships between you and your verifier, particularly in small agencies, and Mayfield-style questions about whether disagreements ever arise and how they are handled.