CLPEX Chat Board

Have there been any recent court cases to "inconclusive" latent results. Is there a list of specific questions for the prosecutor?

I think most LPEs testify to "no idents" as often, if not more often, than we actually testify to identifications. The key question I give the prosecutor to ask me is this:

"Mr. Wertheim, what factors determine whether any latent prints can be developed?"

My answer is this:

There are four factors that determine whether I can develop and identify any fingerprints.

1) The first factor is what we might call the surface factor. The surface must be clean and it must be smooth. If the surface is dirty when you touch it, you may just get the dirt on your hands and not leave fingerprints. If the surface is dirty with other fingerprints, it may be impossible to separate the old fingerprints from the new fingerprint. The surface must also be smooth. If the surface is textured, as for example most vinyl surfaces in cars are today, I might develop a broken up fingerprint, but not one that I can identify.

2) The second factor is what we might call the "sweat" factor. There must be some kind of sweat or residue on the finger that will transfer to the surface and leave the fingerprint. A perfectly clean, dry finger will not leave a fingerprint. Or if there is too much sweat or residue, the touch may only leave a blob with not clear detail.

3) The third factor is what we might call the "touch" factor. The touch must be a clean contact and release. If the finger slips or smears, I might develop a smudge, but there might not be anything left with ridge detail that I could identify.

4) The fourth factor is what we might call the "environmental" factor. Latent fingerprints are delicate and can be easily wiped off a surface or destroyed by another touch on top of an earlier fingerprint. A police officer picking up evidence with a handkerchief the way they do on TV would probably just wipe off any fingerprints that he touched. Or if a latent fingerprint is exposed to rain or dew or even bright, hot sun light for a period of time, the latent print may be erased.

So for me to develop a latent fingerprint, all four factors must be sufficient. There must be a clean, smooth surface. There must be a suitable amount of sweat or other residue on the finger. The touch must be a clean contact and release without smearing, and the surface must be preserved in a suitable manner until I can conduct my examination. If any one of these factors fail, then I will neither develop nor deny a latent fingerprint.

Good luck!

I did not make my question clear enough. It's not whether the latent is sufficient, but whether your conclusion is Identification, Exclusion or Inconclusive. And to whether an actual court case is documented regarding an "Inconclusive" Result. SWGFAST gives a definition, but has any one had practical experience with this conclusion? Thanks for answering my post.

OD60, then I am not clear either. Do you mean "inconclusive" as in "could be/couldn't be/I can't say either way"?????

sandra wiese wrote:OD60, then I am not clear either. Do you mean "inconclusive" as in "could be/couldn't be/I can't say either way"?????

Yes. Scenario such as; you are doing benchnotes and your decision for a latent print is "inconclusive", not ID or excluded. When you go to court what is your explanation other than SWGFAST definition. Also, would you then look at this print again if further suspects were provided as you are inconclusive? I also see that L. Steele has comments about this also in other posts. But back to my question, "Has anyone testified in court and can provide "language" to such?
Hope this is a bit clearer. Thanks.......

OD60
When I make a decision of "inconclusive" it is usually due to the fact that the standards (known prints) used for the comparison are of poor quality. Upon receiving a better set of knowns I can hopefully make an "Ident"or "Non-Ident" ruling. If the latent itself is poor quality I would evaluate it as being of no value for comparison purposes. I would not evaluate the latent itself as being inconclusive. It either has sufficient value for comparison or not. Regarding the court room, I would simply state the problems found in the known prints and how these issues forced me to the original inconclusive ruling.

I have testified to inconclusive results. I don't have any special questions, but if I have a pretrial conference with the prosecutor, I will inform them that there were prints for which I needed additional standards. Generally, the questions during testimony become "Why was it inconclusive?" (insufficient standards, usually) and "Why were no additional prints submitted for comparison?" (I requested them in my report. I don't know why they were not submitted.).

Like Amy and Danny, I have had cases where ‘inconclusive’ is a preliminary conclusion because I don’t have sufficient exemplars to complete my examination. If better or more complete exemplars are submitted then I can do another examination and arrive at a permanent conclusion of identification or exclusion.

I’ve also had cases where inconclusive is my permanent conclusion. I had a homicide case where the latent print was a delta area with minimal level 2 details. This print could probably never be used to identify someone but it could be used to exclude an individual. I labeled this print to be ‘of value’ and excluded the first suspect. I was later given a second suspect that I excluded it to. Then later, I was given a third suspect that had friction ridges that were consistent with the latent print. There wasn’t enough information in the latent print to make the identification but I couldn’t exclude due to the consistency. My conclusion was ‘inconclusive’. I explained this to the jurors by saying it was similar to identifying a person in a crowd. Someone may have similarities, same color hair, same length of hair, same height, and same weight, but if these characteristics are not specific enough, you may not be able to determine if the person in the crowd is the person you are looking for. With my latent print, these characteristics are not specific enough make a determination. A lot of people may have these characteristics, just because there is consistency doesn’t indicate that the latent was left by this person… he is just one of many people that could have left it. To get my point across, I also stated that it would be very likely that someone in the court room could also have the characteristics that were in this latent print.

I’m well aware that many agencies would have labeled this print as not having value since it couldn’t ever be individualized but I feel like that would be a false conclusion because it does have value to someone that can be excluded.

Michele wrote: "I feel like that would be a false conclusion because it does have value to someone that can be excluded."

Having value for exclusion is a topic that I don't think gets enough attention. Michele's point is a good one.

1. The latent contained insufficient (characteristic/minutia) detail for comparison purposes.

2. The latent contained insufficient (characteristic/minutia) detail for identification purposes.

Two differing statements, with two differing meanings to us that may not be recognized/understood by investigators or counsel.

Within the discipline experts will recognize that the second statement infers there is more information present in the latent, i.e., a latent that could be used to exclude, but not identify. Whereas the first statement infers the latent has no value whatsoever. That said, a latent disclosing no minutia detail except a pattern can, at times be used to exclude.
It may be that we need to be more specific in our reports when explaining an “insufficient latent. Insufficient for what purpose?

I would say that the majority (70-75%) of my latent comparisons result in an Inconclusive determinations. The main reason is usually that the clarity of the latent is such that even though I don't see agreement with a particular individual I am not confident that the individual absolutely did not make the impression or I am uncertain that I have the correct comparable area in my standards. I tend to be more conservative in my exclusions because I have caught way too many erroneous exclusions which others thought were straight forward because they were looking at the minutiae incorrectly. It is also not too uncommon to see agreement with a particular subject but just not enough to make an individualization, in which case I report out an Inconclusive. My case notes document the particular reason for my Inconclusive and state whether agreement was seen or not. I have had no problems in court testifying to that and explaining my decision.

I guess some analysts would say that if the latent isn't clear enough to make a more firm conclusion or if you see agreement but can't individualize than it is not of value. In my opinion that can be a difficult determination to make prior to doing a comparison, so if I go ahead with the comparison then apparently the latent had some value for comparison and it will remain as such. I will continue to compare it to subjects in the future even if the resulting conclusion will likely be the same. Again I tend to error on the side of keeping more latents for comparison because I have also caught way too many latents that others have said weren't suitable for comparison only to end up identifying them.

mgirard wrote:I would say that the majority (70-75%) of my latent comparisons result in an Inconclusive determinations.

Something doesn't add up with those numbers. Numbers around these parts are approximately 50% exclusions, 32% Inconclusive and 18% Individualizations. However we utilize Inconclusive for 4 different reasons including.

Area/Level of Detail not included in exemplars
Consistent but not able to Individualize (fails sufficiency threshold)
Consistent but unexplainable differences
Not Individualized or Excluded due to Time constraints

mgirard wrote:The main reason is usually that the clarity of the latent is such that even though I don't see agreement with a particular individual I am not confident that the individual absolutely did not make the impression or I am uncertain that I have the correct comparable area in my standards.

This reasoning seems somewhat odd to me. You state that you arrive at an Inconclusive because you can’t be certain you have the correct comparable area, but you’re reaching that conclusion as a consequence of not being able to even find a target group in agreement. Your stated conservatism in calling exclusions seems more due to the fact that there’s a training issue by where you’re finding frequent missed exclusions than due to any application of ACE-V. But you having found those missed exclusions doesn’t mean you’re making them.

However, you’re leaving out some important information, namely how you are anatomically sourcing the latent (aka classifying). Don't you have to anatomically source the latent in order to know that it is not contained in your standards? If you are undertaking a comparison aren't you stating you have done this, so how can you be uncertain that frequently?

During the analysis, we classify our latents as having come from the Finger, Palm or call it an Impression, meaning you can't tell if the print is from a Finger or Palm. The numbers associated with these analyses are Finger = 77%, Palm=14%, and Impression=9%. If I am understanding your reasoning correctly, this would mean that those most likey to result in Inconclusive due to you being uncertain they are in your standards (the Impression category) are over represented by large margins. So, from the information I have (admittedly not very much), it sounds like more like a function of an incomplete analysis than it is a function of an inconclusive comparison.

Did anyone else read these numbers and scratch their head?

I have testified on an inconclusive in court one time. There also happened to be two identifications, eight exclusions, and this one inconclusive that was a blood print on a sheet next to the victim. I must say the two identifications (individualizations) had a lot or probative weight. After I testified about my findings the defense never asked me one question about the blood on the sheet that was inconclusive.

The other reason for this posting was to respond to Mgirard and I wish to make it perfectly clear that I am not stating anything against Mgirard, just a different position than what was stated.

“I would say that the majority (70-75%) of my latent comparisons result in an inconclusive determinations. The main reason is usually that the clarity of the latent is such … “

Now to me that seems awfully high. I went back to March of this year and I had worked out 35 cases of which 49 were ID’s, 64 were exclusions and 8 were inconclusive. If I worked that out right it comes to about 7%. If Mgirard has 70-75% inconclusive then that would mean 30-25% of the remaining conclusions are split with ID’s and Exclusions.

My question is: What is Mgirard and I doing that is different to have such a range in conclusions offered. What do others out there have as a percentage of inconclusive? Is yours closer to 70% or 7%?

In reading further Mgirard also states that they “have caught way too many erroneous exclusions” and my question would be to define way too many? I see some now and then (a couple a year) but not enough to change how I make conclusions.

The following scenarios can cause me to declare an inconclusive.

1. The inked print is of such poor quality that I cannot ID or Exclude but the L1D is good.

2. The latent print is of such poor quality that I cannot ID or Exclude but the L1D is good.

3. I have some friction ridge detail in agreement but not enough to identify.

I do not declare an inconclusive for the following:

A. I have a palm latent print but have no palm prints on the subject. That is not inconclusive that is Not-Compared. Too reach a ID, Exclusion, Inconclusive conclusion one must conduct some type of comparison. When you do not have the exemplars present there was no comparison to conduct.
B. If the latent print does not have sufficient clarity and quantity of detail then it is not suitable for comparison. No comparison is conducted so no scientific (SWGFAST) conclusion can be reached.

Charles Parker wrote:The latent print is of such poor quality that I cannot ID or Exclude but the L1D is good.

Charles, can you explain the difference between this scenario and a latent print that has undergone Analysis and is of no comparison value? I interpret the qualifying statement of 'but L1D is good' as the latent is useful in some regard. However, the only way I can see that it would be useful would be to exclude on Level 1 Detail since that's the only information you're stating is good, but you're also stating that you can't Exclude, which leaves me asking 'of what value is it?'

Boyd Baumgartner wrote:

Charles Parker wrote:The latent print is of such poor quality that I cannot ID or Exclude but the L1D is good.

Charles, can you explain the difference between this scenario and a latent print that has undergone Analysis and is of no comparison value? I interpret the qualifying statement of 'but L1D is good' as the latent is useful in some regard. However, the only way I can see that it would be useful would be to exclude on Level 1 Detail since that's the only information you're stating is good, but you're also stating that you can't Exclude, which leaves me asking 'of what value is it?'

Say the pattern is clearly a right slant loop, but the delta is obscured or some such and you cannot say anything more than that (e.g. no ridge count). All the comparison subjects have right slant loops which fit the ridge flow of the latent. You can neither ID nor exclude any candidates but the latent still has detail which may useful for exclusion. For example, a subject with all whorls and left slant loops can be excluded as the source.

The question is, is it worth it to retain a latent print with such limited exclusionary value?