Testifying to Negative Results

[L.J.Steele]

Defense attorney in CT wanted to call fingerprint examiner to testify that several latent print lifts had been taken from the crime scene, but none matched the defendant. State objected, saying the testimony was not probative or relevant. Trial court agreed and excluded the witness.

I'm fairly certain I've seen cases where you folks have been called to testify to negative findings by the defense. Anyone aware of any appellate cases on this topic?

[Pat A. Wertheim]

Without having kept the actual numbers, I would say I testify more often to NOT finding the defendant's fingerprints than I do to a positive identification. I have always felt like that was meaningless testimony ("Absence of evidence is not evidence of absence.") Sometimes the prosecutor just wants to let the court know we tried to get fingerprints and explain why we sometimes do not find them in order to overcome the "CSI Effect." But I have also appeared in response to a defense subpoena to testify to negative results.

[sharon cook]

I've testified dozens of times to negative results, both defense and prosecution subpoenas. I don't understand why they can't stipulate to my testimony, but I had a prosecutor tell me it's because they wanted me to explain why prints aren't deposited--weathering, surface, oils and perspiration, etc. exactly to counteract the "CSI Effect." They also want to get the information in about how prints are formed and how often latent prints are NOT found, i.e. most of the time.

[Bill]

Ms. Steele.

I have given negative testimony myself.

What would be the basis for an appeal if an examiner proffered negative testimony?
There is nothing misleading about it.

The jury can draw their own conclusions. At least, that is what I am told they are supposed to do.

Just curious.

Bill

[L.J.Steele]

The problem is that the trial court did not allow the examiner to testify to the negative results, saying the negative results weren't probative. Thus, the defendant was not able to present evidence, however slight it might be, that he was not present at the scene and not the culprit.

Yes, absence of evidence ... etc, but I think the judge is wrong to preclude the information, for whatever weight the jury decided to give it.

[Pat A. Wertheim]

I remember a case in which a woman, late at night and alone in her apartment, was reading in bed when a man stepped into her bedroom doorway. She screamed, the man ran. I arrive about thirty minutes later and powdered the window screen that had been removed at point of entry in her living room. There was a "fresh print" on the aluminum screen. The detective put together a photo lineup of known burglars fitting the physical description. She picked one out and was "absolutely certain." He was arrested. Problem was, it was not his print on the screen. Easy exclusion. District attorney took the case, went to trial. I was called by the defense and testified to only one print on the screen, definitely NOT the suspect. He was convicted anyway on the eye witness testimony alone. I've always felt that the eyewitness identification should have been more aggressively challenged. Lady was reading a book (white pages, under a reading lamp). She was near-sighted and did not have her glasses on. She sees a shape appear in her bedroom door. She was not wearing her glasses, looking from white page to shadow in a dark doorway. Instantly screams, man instantly gone. How realiable is that??? More reliable than a fingerprint exclusion, I guess.

[George Reis]

A case I had involved a hot burglary in which the perpetrator entered through a bedroom window. Someone in the house woke-up and saw him. He simply walked out of the house and away. I lifted a print from the inside of the window that was the point of entry. I entered it in AFIS and got a hit to an individual with priors for residential burglary. Turns out that this guy didn't even come close to matching the description of the suspect. He was interviewed and it turns out that he had been at the house a few weeks earlier at a party (confirmed by the homeowner). A suspect was charged (I don't recall what led to his being the suspect), and the prosecutor had me testify (I assume to answer the CSI effect).

George

[Michele]

Pat,

I'm curious about the 'fresh print' scenerio.

I like to experiment with leaving latent prints and then powder processing them. I've sat around with groups of people leaving prints and then when we try to powder process these latents (which are known to be fresh prints by ground truth), many of them barely show up.

Other times I've put an oily substance on my fingers to leave the latent prints and these prints can be processed months later and the powder easiely adheres to the old prints (again, these are established to be old by ground truth). Because the latent picks up the powder so well, I think many people may assume that the print is fresh when it's really not.

Can people really tell when a print is fresh? I know we can determine if the print was his or not but if the print isn't his, can we jump to the conclusion that he didn't commit the crime?

[Ann Horsman]

I too have had more 'negative results' testimony requests than not. Reason given has always been the 'CSI effect', why don't we develop prints on everything? Perps do often wear gloves when they are B&E'ing. They too watch CSI! And even more are cases where no prints were developed on drug buy baggies where the person selling is caught with the goods. Other examples are firearms which have difficult surfaces in the first place and prosecutors want you to explain why prints weren't developed on highly textured evidence.

[Boyd Baumgartner]

C'mon Michele, we ALL know "Fresh Prints" when we see them.

[Pat A. Wertheim]

Hi Michele

In the "fresh print" scenario (in which I did not testify to "fresh prints," by the way), my point was that I felt there was "reasonable doubt." A nearsighted woman, late at night, reading under a lamp in bed, hears a sound and looks up from the bright, white page. Across the room in a darkened doorway she sees a man in the shadows. Instantly, he is gone. The only fingerprint on the window screen is not the defendant's (nor was it the apartment maintenance man's, and he testified that the screen had not been off the window for at least five months, and he was the only person who would have removed it in the past few years).

My personal belief was that the print on the window screen (in a crimped bend put there while the screen was being wrestled from the window) was "probably" the burglar (again, not testified to). The woman's only description was that he was a tall, skinny black guy (actually, her statements were peppered with the n-word). The detective picked the six tallest, skinniest active black burglars in town. At that time, our mug shots had the height in inches behind the people being photographed. The victim in this case picked out the tallest, skinniest, black guy in the photo lineup. He was a burglar by the name of W.H.

W.H. had always committed his burglaries in about a five square block area of the slum part of town where he lived. He had never committed a crime outside his neighborhood. He did not have a car, but walked everywhere he needed to go. The burglary in this case was several miles away, farther afield that he had ever been known to go. W.H. had never burlarized an apartment, only small houses. And he had never committed a crime against anybody not of his race. Almost every facet of MO you could name was different from this incident.

After the trial when I went to leave the courthouse, as luck would have it I was alone on the elevator with the victim. She did not like me at all because I had testified contrary to her. As the elevator was going down, I commented "I sure wish I knew whose fingerprint that was on your window screen." She gave me a cold look and replied, "Well, unless you can show me another N----- that tall and skinny, I'm going to keep saying it was him." W.H. did five years in state prison for that burglary. While he was a regular criminal and no doubt deserved time in prison, I still to this day believe he was innocent of that crime for which he finally went down.

By the way, a month or two after the trial, I had double pane windows put in my house and had eleven old window screens left over with the same type aluminum frames around the edges. I marked them off in one inch segments and had all the detectives and secretaries come out and put fingerprints with normal residue (not rubbed on their noses) in each one-inch block on each screen. I laid a third of the test prints flat on the grass in my back yard, hung a third of them under the eaves to simulate being placed back in the window, and kept a third protected in my garage. I used both black powder with fiberglass brush and magnetic powder to see which was more likely to produce results with time. In the beginning, I powdered a print with each method in each location every hour. After a half day, I went to four hours, I think. Then to 12. Then to daily for the rest of the test. All in all, the test went on for six weeks. Basically, after the first day, prints on the screen in the back yard grew faint quickly, and after about three days almost no ridge detail came up. As you would expect, prints hanging under the eaves lasted longer and prints in the garage lasted the longest. The only ones that looked like "fresh prints" were those that were powdered within the first few hours. Could I apply that to actual case work and estimate the age of a fingerprint on a window screen based on my limited study? Of course not! I may have a personal belief as to a "fresh print," but it is not scientifically justified. We should never testify to "fresh prints" for exactly the reason you stated, and I did not mean to imply otherwise.

Getting back to Lisa's original question, the absence of any fingerprints should have no power to imply either innocence or guilt. Still, I believe the defense should be able to point out to the jury that the defendant's fingerprints were not there. A competent fingerprint expert and a competent prosecutor should be able to minimize the impact of that defense argument. But when there is a fingerprint with a certain evidentiary level of importance, as a fingerprint at point of entry, and that print does not match the defendant, then I think more serious consideration must be given to that fact. If the only evidence implying guilt is the eye witness identification of a nearsighted racist looking suddenly from a bright, white page to a man in a dark shadow, and the duration of her seeing him is a second or less, then I think there may be reasonable doubt.

Otherwise, I agree with you, Michele. We can't testify to a "fresh print"

[PCC]

I had a robbery case where two men entered a business in broad daylight, each approached and robbed opposite check out stands. I processed the scene and much to my surprise, developed three latents (woohoo!). Pretty amazing considering the surface and amount of traffic through that area. Two latents were from one check out stand and one from the other. Suspects were developed by detectives and I compared the latents to both suspects. Surprise again! Two of the latents were positive to one of the suspects. I felt I hit the motherload. That suspect confessed (pat on my back). The second suspect denied involvement even when he was independently picked out of a line up by four witness. His first trial ended in a hung jury. During the second trial his public defender brought to the court's attention that another subject in jail on an unrelated charge was bragging that he in fact had robbed the business. I was brought to court to take the braggarts prints and compare them against the remaining unidentified latent. WoooHoo again, the print was his (God I'm good )! From that day on, that public defender has always stipulated to my testimony.

As far as witness identifications go, the exonerated suspect and the true suspect only resembled each other in the fact that they were black males. Have NO IDEA how the witnesses managed to pick the one out of a line up. Witness identifications are not very reliable.

[L.J.Steele]

FYI, I thought I'd share some of the case law I came up with in looking into the precluded no-match testimony.

The absence of forensic evidence given provides some evidence that the defendant was not in the bank or the getaway car. See United States v. Poindexter, 942 F.2d 354, 358-60 (6th Cir. 1991) (closing argument erroneously precluded where fingerprint powder was on evidence, but no latent print was found); United States v. Thompson, 37 F.3d 450 (9th Cir. 1994) (defense is entitled to argue to the jury that the government's failure to present fingerprint evidence weakens its case); United States v. Hoffman, 296 U.S. App. D.C. 21, 964 F.2d 21 (D.C. Cir. 1992) (defense may argue to the jury that no fingerprint evidence has been introduced and to argue that the absence of such evidence weakens the Government's case); Banks v. Powell, 917 F.Supp. 414, 418 (E.D. Va. 1996) (“The absence of fingerprint evidence is a fact the jury may consider, but there is no constitutional or statutory requirement that police take fingerprints or employ every investigative technique known for each crime suspected.”). See also United States v. Fields, 483 F.3d 313 (5th Cir. 2007) (defense argued not possible to commit crime without leaving forensic evidence).

Evidence of the absence of fingerprint evidence has been admitted and argued in numerous cases – see e.g. United States v. Carpenter, 403 F.3d 9 (1st Cir. 2005) (defense offered evidence of absence of fingerprints on firearm); United States v. Matthews, 498 F.3d 25, 29 (1st Cir. 2007) (absence of fingerprints on firearm); United States v. Barajas-Montiel, 185 F.3d 947, 955-56 (9th Cir. 1999) (absence of fingerprint suggests lack of possession); United States v. Hanrahan, 508 F.3d 962, 696 n. 4 (10th Cir. 2007) (absence of fingerprints on firearm). But see United States v. Sutton, 337 F.3d 792, 797-98 (7th Cir 2003) (reports showing no matching fingerprint evidence were relevant; but no harm in exclusion); United States v. Paladino, 401 F.3d 471, 478 (7th Cir. 2005), (absence of fingerprints is irrelevant to possession of a gun, trial court may properly exclude such evidence).

[Gerald Clough]

Perps do often wear gloves when they are B&E'ing. They too watch CSI!

You had a better class of burglar that we did. The all-time, grand prize example was Carlos. Carlos began his life of crime early. While we was still a juvenile, he entered a house by breaking a pane in a glass sidelight and lifting out the larger piece. I found a perfect set, the thumb on one side of the glass, the four fingers on the other. As an adult, he broke into a barbecue place and carried out a brown cardboard case of beer. He was leaving through the piles of oak firewood out back when a car passed by, causing Carlos to bend over to hide, resting his hands on top of the case. Unnerved, be fled without his beer. I raised both full palms from the top of the case, of considerably better quality than his record palms. Having had these and other unfortunate forensic experiences, Carlos concluded that fingerprints were bad. For his next job, a convenience store, he wore socks on his hands. This would have worked okay, except that he neglected to instruct his look-out that he should watch for approaching police, rather then watching Carlos work over the store. He then apparently concluded that hands were a bad deal all around. One Saturday morning, the night patrol officer flagged me down to show me what he thought was a shoe mark on a door that had been kicked in. It was indeed a faint but well-defined sole mark of an athletic shoe. He mentioned in passing that he had also arrested Carlos that morning on my warrant for stealing a VCR from a school in daylight and running with it past the custodian who knew him on sight. I held the scene while the officer went to the jail and put Carlos' shoes on the copy machine. Poor Carlos. He's been out of prison now for a few years and has wisely given up burglary as an occupation to which he was apparently not suited. His brother has similarly forgone burglary. He was also poorly formed for burglary or any other occupation more complicated than causing heavy objects to move from place to place. He came to believe that he had the misfortune to have been seen do all his burglaries while observed by eyewitnesses. The reality was that he had the trait, so unfortunate for a working criminal, of unconsciously grinning when he denied doing something he had done. One need only go down the list of burglaries in town, one by one, and inform him, when he grinned, that someone who was there when he did it had given him up. He is one of my favorite crooks. Not just for his "tell" but because when I asked him what he had done with the cable TV box he had stolen, he told me he had thrown it away, as it did not work when he took it home and plugged it in.

"Joe, do you have cable at your house?"

"Huh?"

While Carlos and Joe were outstanding specimens, they must make room for their fellow hall of famer who, having broken into the barbecue place (same one as Carlos, but by breaking out the front plate glass window), was found the next morning passed out in a wheelbarrow in his front yard, surrounded by beer cans and with his feet in the air, prominently displaying the sources of the perfect shoe impressions left on the broken glass.

And even he must make room for Johnny, who while sitting in my office discussing a forgery for which he was somewhat hesitant to take responsibility, spied on my desk a photograph of an amoeba-like image of a shoe mark in dust on the desk of the office found ransacked the day before. He asked what it was. To keep the conversation going in a light and congenial tone, I told him what it was. He expressed doubts that such a thing could be useful, and at the risk of furthering his criminal education (not a substantial risk, since Johnny retained few lessons in life), I invited him to turn up his right shoe so that I could show him that the differences in shoes could be shown from their marks. "Sorry, Johnny. I had no idea." It even retained a chip of glass from the window he had broken.