CLPEX Chat Board

Does anyone have the cites to the cases mentioned in the Detail:

A few recent court decisions, have applied the “no bolstering” rule in cases wherein fingerprint examiners were asked, after they explained the various steps involved in the ACE-V process (including the requirement of a Verification), whether the “verifying examiner” agreed with the testifying examiner’s conclusion, and the examiner responds affirmatively. The same result – reversal of a conviction – is likely to occur if the testifying examiner were to volunteer such information on direct examination without being asked that question.

Reversal -- unlikely if sua sponte by the witness, unless the witness had expressly been told not to do it by the judge as a result of a motion in limine, and did it anyway. It is very, very hard to get an appellate court to find reversible error in witness conduct, even that of an experienced witness. It would also likely require a prosecution case that was otherwise quite weak.

At the trial level, trial judges have huge amounts of discretion to rule as they see fit on evidence issues -- if the trial judge wants to allow testimony about standard procedure, that includes the concept of verification, but bar the statement that it was done in this case by a named person, I don't see why he or she can't do so. I'm not sure, tactically, how much that helps the defense -- jury is likely to infer that if expert testified to the standard procedure, that it was followed and there was a verification.

I do see problems is with confidence statements -- a form of self-bolstering. Witness says "yes, that's a match. I'm 100% sure." Again, also not likely reversible error, but could be subject to a motion in limine before the trial or an objection at the time. There's some case law about links between confidence and accuracy in the eyewitness ID context that could be conceptually imported -- court shouldn't care if you're 100% sure, it should care about why your answer is reliable.

I am a little concerned by the idea that it is considered "bolstering" to simply inform the jurors how a conclusion was reached. I would not be testifying to an individualization or exclusion if another examiner had not come to the same conclusion in the first place. If I don't inform the jurors of this then it leads me to feel that I am withholding information. My case notes include documentation by any examiner who has performed their own comparison of a particular latent, whether they agree or not, and this is accessible and can be reviewed. I could see how it would be considered bolstering if there was no documentation that another examiner had reviewed the comparison, so maybe this is where the confusion lies for me. Does anyone have access to the court decisions in which this rule was applied to fingerprint testimony?

Would the reference to scientific studies be considered bolstering, since I was not the individual who actually performed the study?

I have no special knowledge of legal etiquette but I think the difference is whether or not you’re asked about office procedures or the basis of your conclusion.

If you’re asked about office procedures then you could state the process and verification is part of that process. There would be no need to state the results of the verification unless asked. If you’re not asked then you’re bolstering the identification by testifying to somebody else’s conclusion.

If you’re testifying to the basis for the conclusion, then the basis should be in the characteristics you observed, not in the fact that someone else arrived at the same conclusion.

I guess it’s the difference between testifying to YOUR conclusion vs. testifying to the OFFICE conclusion. I think most examiners are in court to testify to their own conclusion and if the attorneys want the verifier’s conclusion then they can ask that person to testify as well. Testifying to someone else’s conclusion could be considered hearsay.

Another consideration, besides how someone testifies, is whether or not an attorney made any objections. If objections were raised but the judge allowed the examiner to answer then a reversed decision could be because of the judges ruling, not necessarily on the testimony itself.

This is one of those messy areas of hearsay law -- the answer may vary widely depending on your jurisdiction and the trial judge(s) you typically appear before.

The basic rules are that no one can vouch for another witness' veracity. This typically comes up in the child sexual abuse cases where experts who treated the child testify -- they can talk about the child's treatment, to some extent about her allegations and demeanor when making them (under medical treatment and constancy of accusation/fresh complaint exceptions to the hearsay rules) and to the general characteristics in the studies of abused children. They can't overtly say that they found the child credible. (Tho the jury is likely to draw that inference as they likely wouldn't be testifying if they didn't.)

There's another rule about bolstering -- the basic problem is when witness A says -- this happened and B (an out of court witness) agrees with me. A is using B to improperly bolster his/her testimony. A could say, likely, that B was present when A saw the incident, leaving the jury to draw whatever inference it wishes from B's absence.

You ought to be able to describe the standard procedure or answer the question, if asked, about whether your result was verified, and if so, by whom. The jury is likely to draw the correct inference that you followed that procedure and there was a verification. The problem might arise if you just volunteered in a narrative answer that you reached a conclusion which was verified by Examiner X. Probably worth talking to your prosecutor if he/she tends to ask broad open-ended questions where you don't know how to answer.

Lisa,

In case no one got the references to you personally and for those folks who are also interested, the following cases are ones which involve "bolstering":

Jeffrey Daniel Bunch v State of FL out of the 4th District Court of Appeal 2/18/09

State of NH v David S Connor out of the Supreme Court of NH, opinon issued 12/14/07