Pro's and Con's of Using Case Latents for Court

[Steve Everist]

The more I think about charting out case latents for court, the more I think that it's not a good idea. Instead, for demonstrative purposes, I think a general latent print would better serve the purpose.

My primary reason behind this is relative to jury members seeing the image and not seeing what I'm explaining - and this is being done with the latent print used in the case. If they can't see it - they can't see it. And that may (falsely) influence their decision regardless of the qualifying we must go through as experts.

Other than having it specifically requested by the prosecution or defense, I can't think of a good reason to chart a case latent for court.

Does anyone have an enlightening perspective on why it would be a good idea to use the specific latent print(s) from a case?

As an aside, in one case where I did prepare a chart of the case latent (with arrows, numbers, etc...) there had to be a side-bar where it was decided that the jury would not be allowed to look at my chart in the jury room and that it was 'only' for demonstrative purposes. This was because it wasn't a clean latent - there were arrows, numbers, etc... on it which made it not representative of the original latent print.

[g.]

This one is near and dear to my heart, so I will take a stab at it. Let me preface with, I used to believe exactly what you believe and for those reasons. When asked in court, I'd respond as you argued and throw in that it's difficult to transfer that expertise to lay people in 15-20 minutes of direct testimony and I would be able to see things in an impression that lay people would either 1) not see, or 2) place entirely different weight on. I have non-expert data that support these statements by the way.

Having said all that, the last 6 years have shown me that jurors want to see those case images. I have come to this opinion after interviewing some jurors, getting feedback from jurors, talking to my students (who have served jury duty or are called to jury duty) and any non-expert that I can find. I poll them all the time about charting, how many charts, "stock latent" charting, what they expect from forensic testimony, etc. Time and time again, I hear that they don't just WANT to see the evidence, but EXPECT to see it.

Generally I have found their reasoning to be pretty level headed too. They recognize that they won't see everything that expert will see in impressions and have to defer to my expertise. They STILL just want to see the evidence and how I got from Point A to Point B (no pun intended). They may not see the same conclusions I see, but they want to see HOW I arrived at my conclusions. Plus if they CAN see it, all the better for them and makes their decision easier for them. If they can't, then they're back to trusting me, but at least they don't feel like I am "hiding" it from them.

Plus, I have found with today's technology, specifically Photoshop and Powerpoint, I have yet to find the latent I can't chart out for court and make a clear and convincing presentation. With this technology I can control what they see and when they see it. I agree with you that old charting styles are not good and that is problematic. There are some cases that I would NOT chart IF i was stuck with old lines and numbers, poster charts. But with software today, the benefits of trust, transparency, and showing them how I arrived at my conclusions goes a long way when presenting my evidence. (Or so I have heard from jurors where I presented the latent).

My two cents. After hearing from at least over 100 students/jurors/potential jurors the same thing time and time again, I would never go back.

[I do like using a stock latent to show how we use L1D, L2D, and L3D and apply ACEV process. But after the informational set-up, I would show the case images and very quickly run through at least 1 comparison in the case, typically the one with the highest clarity and/or the most probative].

g.

Go Steelers!

[Gerald Clough]

I agree that jurors are likely to feel something may not be right if comparative evidence testimony is presented without some demonstration of the elements of comparison, but I think less about that than I do about how they buy into the conclusion. I don't think it must always be the classical chart. I have seen many charts that take a few moments for me to orient to what's being demonstrated, and I assume it would be more difficult for the lay jury. We would, of course, talk through the chart, but I would like the jury to be following the process, not struggling to see what's being pointed out.

Some comparisons can be nicely demonstrated by the classic style chart. Its shortfall is that it is essentially a point chart, and it depends upon testimony and lavish use of a pointer to demonstrate relationships. As pointed out, it can become a point of contention as to whether this rather conclusory declaration of point-to-point correspondence can be sent off with the jury as demonstrative evidence or if they will be limited to the naked images as a record of physical evidence. And it can with some images, as pointed out, present the possibility that a juror can't accept the interpretation of one or more features. And it may not be very demonstrative of correspondence when there is significant distortion.

Having recognized the potential shortcomings, I still think that when more than the most straightforward interpretations are involved in the comparison, some visual aid is appropriate. When the character of various features is difficult to discern, a chart using the sort of enlarged feature images produced in the Mayfield OIG report is useful. The prints numbered 006 on the FIG page present another type of problem. The features are clear and correspondence could be demonstrated by a classic chart or even uncharted images, but the severe compression distortion requires significant explanation to make these palatable as impressions of the same source without taking a bit of it on faith. I found that overlaying colored ridge flow traces demonstrated both the feature correspondence and the distortion effect, which could be be further dramatically demonstrated by stretching the latent image to the "Aha!" point.

If a conclusion is going to be challenged, it is immensely valuable, maybe crucial, for the jurors to buy into the conclusion. A very reliable strategy for gaining buy-in of any kind is soliciting the subject's opinion. And the innate human ideological territoriality drives people to defend an idea that they have adopted. That's a pretty powerful thing in a contest of conclusions. A jury who follows a logical process to conclusion is more resistant to efforts to question that conclusion than is a jury that has been merely informed that another has reached a conclusion. Explanation of the principals of the process does not produce the effect, any more than someone explaining to you the principles of how they reached a decision in any other matter leads you to accept that decision. There's just such power in a juror "getting" it. We don't say "Wow" when we get it. But they do. And we go along with tons of money for NASA because of our "Wow," which is largely induced by our visual experiences, not because some rocket scientists say it a good thing to do.

I also am inclined to think that it may be true that if one cannot satisfactorily explain to a lay person how a conclusion was reached, one should question the validity of the elements of the conclusion. Now, I don't think that Steve is suggesting the elements of the case comparison can't be satisfactorily demonstrated. I take the question to be more concerned with the resources going into producing a chart. I think I would agree that if a classic style chart would provide the jury only with reason, from the lay perspective, to question the interpretations, it might be of no net value or even harmful. But that would, I think, be a failure to provide the most effective demonstrative aid, rather than no aid being appropriate.

I just think that we have so many ways to show that we cannot afford to forget all we know about advocacy and about buy-in and attention-holding. What do successful authors tell beginners about narrative? Don't tell. Show. If a case is worth trying, it's worth whatever time it takes to present evidence effectively. The right demonstrative evidence doesn't have to go to the jury room. The jury takes the effect in there with them.

[Cindy Rennie]

Over the years the subject of using "generic charts" while giving testimony has been talked about in my office. The feeling has always been that the jury expects to see the actual evidence, and their suspicions are awakened if a 'generic' chart is produced instead. Juries turn into mini-Sherlock Holmeses when faced with the forensic evidence. They would wonder why the actual case fingerprint was not charted. Defense counsel would probably jump all over it, too.

The challenge for me this morning is to convince a Crown Atttorney (D.A. to you yanks) that I don't need to produce a poster-sized enlargement of my chart to show to the jury. I told the Officer in charge of the case yesterday that my charts are 11" x 17", and that's as big as they get. Size, after all, is not supposed to matter. (Or so I'm told).

[L.J.Steele]

You are likely to get a strong objection from the defense if you don't provide the exemplar and latent in a reproduction that the jury itself can see for itself. That's been the growing trend in other comparison fields (esp. firearms ID) where for a long time examiners were getting away with just stating the conclusion that X matches Y. I think there's a value in using a standard chart to demonstrate your testimony, but I think at some point, you are going to have to show the jury how it applies to this case.

Of course, as I've noted in other threads, there are many times where the print evidence is not the key dispute in the case, and an attorney may let things slide because he or she prefers to minimize the print testimony and move onto something that he or she may persuade the jury on (the eyewitness or the informant, FREX).

From the appellate PoV, if you can persuade prosecutors to include with the exhibits an 8.5 x 11 version of the large charts, slides, or key powerpoints, it would make my life (and their appellate prosecutor's life) much easier if I need to include a reproduction of the exhibit in the brief. Manhandling posterboard onto the copier is an exercise in much amusement for the clerks office. I had a court refuse to let me use prints of autopsy slides at issue in a case, even where the prints were created for me by the ME from the slides, because the prints weren't exhibits, just the slide carousel.

[Gerald Clough]

From the appellate PoV, if you can persuade prosecutors to include with the exhibits an 8.5 x 11 version of the large charts, slides, or key powerpoints, it would make my life (and their appellate prosecutor's life) much easier if I need to include a reproduction of the exhibit in the brief.

Since I began working appeals, I've gained an appreciation for the problems that come up. We do cases that were tried as much as 20 years ago and may be dealing with some issues 25 years after trial. Sometimes, the clerk's vault is the only reliable archive. Prosecutor files are often buried in county warehouses and are sometimes lost to water damage or just plain lost. Law enforcement files can suffer the same fates. Defense files get passed around from attorney to attorney over years of appeals through different levels, and it's not unusual for none of them to remember who they passed them to, even if they're still in practice or even alive. The vagaries of the appeals processes are such that it may be many years before a case works it's way to a federal circuit panel before going back to a U.S. district court for a hearing. The clerk of the trial court, barring fire or flood, will at least preserve what goes into evidence until everything is exhausted (which can mean until the defendant is actually executed, in a capital case).

Transcripts usually survive in the state appeals court record, but testimony may well not answer challenges of something like a defense attorney's claimed harmful failure to challenge an identification process or to use another expert. So you can end up with a deceased examiner, a sparse or lost work file, not very detailed testimony, a dead prosecutor, a dead defense lawyer, and whatever was in evidence, as you try to decide if there was a failure and if it was harmful. There may be more people working with the evidence long afterward and doing it without having the examiner witness pointing to things on the enlarged images. It's not the most problematic thing or the most common problem, but it can be an expensive and time-consuming nuisance, given the creative writing abilities of some appellant counsel. Everything's better clearer.

[wjwatling]

I wrote an article for the IAI a number of years ago entitled, "To Chart or Not To Chart". At the time I was the statewide Supervising Examiner for the Arizona DPS Latent Print Section. Our policy was not to chart unless we had a really good latent print. As stated in the original post, there are many reasons not to chart a poor print. I have over 35 years experience and cannot possibly teach the jury (or court) how to "see" everything I am looking in a latent print in 20 or 30 minutes. The same holds true for any appellate court. They cannot possibly look at a fingerprint chart of a poor latent print and have the benefit of my experience.

In the event an appeal is held, they can hire a qualified examiner to review the original latent. IF he/she is really qualified they will come up with the same opinion I did. We never had a problem. I still normally do not chart and have still never had any problems. A chart is nothing but demonstrative support for your testimony and the real evidence - the latent print. So, TO CHART OR NOT TO CHART, I still say NOT!

[Gerald Clough]

I can imagine presenting testimony and having the defense on cross begin tickling at issues and then put their own expert up during their later defense case. And that expert would almost certainly use a chart, because doing otherwise would just be conclusion v. conclusion and wouldn't be an effective attack. Rebutting that expert would be difficult without using their chart or other images. It strikes me that I might be trying to attack what I saw as poor or misleading charting or arguing the interpretation of features, which again would require images, and it would be difficult to do effectively without producing my own version. We're pretty spoiled by the general lack of adversarial expertise. Do you think it's fair to say that one reason you feel you can go in without some kind of demonstrative evidence is that you're not often confronted with a defense-side expert at trial?

And it's unlikely they will get to use their own expert on appeal. It's not new evidence, which is generally what's required to mount an actual innocence claim, because they had that opportunity at trial. They can claim that analysis was fundamentally flawed, but that's hard to do unless there's general agreement that it was plain incompetent or deliberately warped, and producing even one new credible expert who supports the original interpretation is often all it takes to throw that claim out.

[antonroland]

Down here we always chart the actual latent and some further exhibit prints are also handed in but that is simply the way our (very conservative) legal system got used to it.

Our Criminal Law is not nearly codified completely and draws heavily from the common law and precedent (stare decisis)

[Bob Doak]

Hi

My take on this was contextual effected when A prosecuter phone me to ask about these
photographs he had received with my statement with the red lines coming from them.

I then spent 20 mins explaining what they were. I decided at this point not to do them again.

I also feel that we should not produce generic images to explain identification. This is simply
because you could be accussed of falsifing the identification.

If they wish to challenge, let them, then produce your enlargements based on the evidence from the case.

It is just like the argument about individualised or identitical

why not say both the scene mark and the impression from the finger print form have been made by the same donor.

It is quite simply KISS
Keep it simple stupide.

We are endanger of making our processes so complicated we give the doubting Thomas more amunition to have a go.

I believe in research and gaining understanding of what we do, but it seems the more I read the about the application of fingerprint comparison work, it is more about how clever the author wishes to appear rather than promotion of how we do the job.

It is about the realisation that most expert do take care in what they do and would rather err on the side of caution than of stating a bad identification. Rather than what some people would have you believe.

I do apologies about this middle aged man's rant, but after 28 years of doing this squiggle line stuff we seem determinded to be so lost in trying to satisfy academia and science we lose sight of over 100 hundred years of testing the Hypothesis and proving it correct.

Lets keep our minds open but not get blinkered into one direction.

[Gerald Clough]

I would agree that identification experts prefer to err on the conservative side. (Note the distinction in not generalizing to most experts across all disciplines, since I believe careful conservatism is not something I expect to find among experts in general in legal affairs.) I think fingerprint identification began in a mode that we would consider very conservative today. But today's critics are not automatically wrong on account of careful and honest examiners. As to blinkering, we cannot afford to seek refuge in the validation-by-100years-of-validating-ourselves position. There is absolutely no rational contention over friction ridge skin being unique or so highly probable to be unique as to be used for reliable identifications. The issues that matter have to do with how high an combined value of quantity and quality is reliable and how the decisions are made in comparing without express quantifiers.

Pursuit of a satisfactory answer involves work on both the process of comparison and potential validation by numerical methods. We are essentially dealing with a discipline that developed and became deeply embedded in the criminal justice system long before the current standards for scientific and technical evidence were conceived. It is not unlike eyewitness identification, an even older class of evidence, long considered to be such a common human activity that some U.S. circuits still do not require trial courts to consider testimony on factors affecting reliability. We cannot pretend that we don't work within a dynamic legal system.

It can indeed seem that some research appears to be largely an exercise in academics or pretended academics and more an opportunity to publish than a productive inquiry. But few studies in any field lead directly to cleanly usable knowledge. The vast majority of study merely helps direct further study. It is a process of probing for a way in, and even when something doesn't produce a neat answer, it merits publication as part of the collaborative effort. Yes, is a somewhat trivial quibble to debate "individualize" versus "identify." But I take is as an indication that some are thinking about precision. Those same sort of arguments, sometimes with far less benefit and far more ego, appear in most scientific fields.

See, I get to rant, too. And one thing I get to rant about is the wish that it would all just be left as it always was so we could all go on doing as we have done. I almost wrote "as we have always done," but it has changed over time. Quite possibly if we had done no more than was done with fingerprints in 1918, we would not be answering many critics.

[L.J.Steele]

In the event an appeal is held, they can hire a qualified examiner to review the original latent. IF he/she is really qualified they will come up with the same opinion I did.

That's not the way appeals work. The appeal is based on the trial evidence and whether the trial judge abused his/her discretion in admitting testimony. It can be difficult to talk about the expert's testimony if it refers to a large exhibit that can't be readily reproduced in the appellate brief. (An attorney can ask for an exhibit to be brought in for oral argument, but the Court may disallow it. (CT hasn't let me do it in the 3 times I've asked.)) The judges will get the exhibits when they are writing their decision, but that may not be as helpful as having something to refer to at oral argument or in the brief itself.

Habeas is another matter. There, the habeas attorney can reinvestigate the case and hire another expert. (I have hired experts during the course of an appeal, but only to decide whether the best course of action was to proceed immediately with the habeas rather than wait for a couple of years for the appeal to run its full course.) Here, however, the problem may be whether the underlying latent and exemplar have been properly preserved and are in a condition sufficient for a new examiner looking at materials stuffed into a clerk's vault 3+ years after a conviction to reach a conclusion. A charted enlargment can prevent a great deal of wasted time and effort.

If you don't show the jury the work, the jury has to take your word for the conclusion. Defense counsel is increasingly likely to suggest that if you aren't willing to show it, there's something wrong. Jurors aren't stupid -- if you can explain the analysis, odds are they are likely to accept it.

[Bob Doak]

HI Gerald,

As normal you are the voice of reason.

Sorry about the rant. But as for you ranting, your previous post would say your are not a man of rant.

The only point I think I would pick up is that of hiding behind 100 years.

We have as a profession in the last 100 years looked at what we do and how we do it. We have changed
and advanced our profession through our pratical use of it.

This in the main has not been driven by academia or scientific research but by pratical experience.

We have introduced procedures to work to, we have designed training programmes to make sure practioners at least
meet minimuim standards. We are not stuck in 1918. Well at least not this side of the pond.
What I can see from the experts I have read and meet neither are you on your side.

I do agree with you in that if you always do.....
But as a profession we have not. But again this has not been driven soley by academia or science.
It has aided us and long may it continue to do this.

We are now looking at Computer generate statistical models to verify out findings.
But happens when the computer says 'NO'

You almost seem to suggest that being part of the Police service is a bad thing.

So will movement away produce a better service or simply give the defence one less stick to beat us with?

I will end now because I almost getting to ranting again.

I beleive we should always challenge what we do in order to make it better but the drive for scientific
recognition is blinding some to the effectiveness of what we do and how we have developed this over 100 years.
So lets celebrate in 2009, that we still want to move forward and we can have open discussion.

[antonroland]

You almost seem to suggest that being part of the Police service is a bad thing.

And if that was the case I'd be the first to agree and cheer for a change to be brought about...in my village anyway...

[Gerald Clough]

HI Gerald,
We are now looking at Computer generate statistical models to verify out findings.
But happens when the computer says 'NO'

I personally don't think statistical methods are going to do the trick. Not that it's not worth trying, but I think it's so far been essentially arbitrarily assigning values in ways that can generate different numbers from a variety of arguably valid interpretations. But then, I'm not doing that research and can't say too much about it.

You almost seem to suggest that being part of the Police service is a bad thing.

No. There's nothing at all wrong and a lot right about the police side of latent print examination. I think the lack is in adversarial expertise. I think it's only to be expected that any discipline that operates almost exclusively on one side of the fence is at risk of moving beyond the reliability limits. Pretty much along the lines of the bullet lead conclusions at FBI. I happen to think the critical assessments of other qualified examiners is an excellent way to drive us toward thinking more critically and to better effect about our own work. It's no bad thing to have genuine experts shooting at other genuine experts. So far, most of our critics have been just too easy to reject, because, while they have some points, the often don't grasp the real issues.

I know that in other fields of forensic expertise it's the experts that reveal the flaws and misstated certainties of other experts. It works in both directions. I spend a fair amount of time helping provide material to experts who will be contesting shockingly biased and cleverly crafted reports. I will say one thing. While fingerprint issues don't often make it to the level in which I work, when it does, both sides frequently agree to accept the work of a single examiner. We don't see that happen all that much with other fields. I think that says a lot about the way latent print examiners are viewed by the people who really have to deal with their results. I don't want to lose that, and, to me, that means having examiners criticizing conclusions and processes in ways that I think we have to admit aren't likely to spring from official latent units.