CLPEX Chat Board

The following Livescan related issue has arisen in this jurisdiction and I was wondering whether anyone else had encountered a similar issue.

Background:

Section 95 of the Queensland Evidence Act 1977 regarding the ‘admissibility of statements produced by computers’ provides a definition of a computer as ‘any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived therefrom by calculation, comparison or any other process.’ It also says that a ‘statement includes any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise.’

This would suggest that this section can be applied for the certification of the hard copy Livescan fingerprint form in court proceedings would it not.

The following question has been asked by a Senior Crown Prosecutor in this jurisdiction with respect to evidence in a murder trial where a blood fingerprint impression had been located at the murder scene. The offender has been arrested and their fingerprints taken via the Livescan device and subsequently matched to the blood prints.

Questions –

1. As the Livescan fingerprint form has been computer generated are we relying on section 95 of the Evidence Act 1977 for the document to be admissible in court proceedings?

2. If the answer is yes then who should produce and sign the certificate and tender it in court proceedings?

It is my understanding that if a defendant decides to challenge the Livescan fingerprint form it needs to be established what is being challenged exactly? The certificate under section 95(4) of the Evidence Act establishes that at the time the fingerprints were taken the Livescan device and linked systems were operating without fault. However, if the actual functionality (scanning of the fingerprints) on the Livescan device and the subsequent transfer of the digital images, searching and storage is being challenged then a representative from the vendor (IT expert) would have to be approached to provide evidence.

In actual fact this certificate was initially intended for bank or other statements produced by a computer whereby they the author was not available for court and the Investigating Police officer could tender the certificate. It has somehow found it s way into the Livescan world.

Is there anyone else out there who has experienced this type of challenge to Livescan prints in court? And if so what was the outcome? If you haven’t what would be your response?

Thanks in advance, Mike

The issue of authenticating fingerprint records continues to come up within San Diego County. We've had to re-work many cases using fingerprint records from specific booking dates, or to perform comparisons right in the courtroom in an effort to verify that the subject in question, is in fact, the subject's prints on the record (personally, I won't). I don't know that it would be wise for any of us to abide by a document created prior to the use of modern day electronic fingerprint capture, queries, and archives. Especially knowing that any human endeavor is subject to error. As of now, I use a careful choice of words when making identifications:

Latent impression "x", collected from lift card "y" revealed an identification to the finger/palmprint record marked as "name of face of exemplar".

In the end, I believe it's all I can vouch for, even if I'm the one to capturing/collecting the prints either electronically or conventionally. To me, a certified fingerprint exemplar is the actual record on file, that has been matched up to prior criminal history, not the identification of the subject in question. I am identifying a submitted latent impression to a record on file. Semantics perhaps? Even if a certificate ensures that the systems are operating without fault, who's to say that "Joe Q. Citizen" wasn't playing the name game from day one by using his brother's fake id?

It is a bit of a tempest in a teapot... I too, am curious how others are handling this.

Apologies,

having re-read my 1st posting I couldn't have phrased the issue less clearly - so here's another go:

Situation - Livescan tenprint form taken and later used to ID the defendant. Prosecution, in covering all bases, require 'someone' to sign a 'certificate' (under Queensland Evidence Act) to say that because the Livescan device is a 'computer' (see previous definitions) that at the time the Livescan tenprint form was taken the computer (ie Livescan device) was in full working order with no faults.

I belive in full disclosure to assist the court but is this going too far? Or even necessary? What's next - a digital camera is a computer, NAFIS uses a computer - will we need a certificate to say they were in working order when we use them.

Mike

If the live scan system is serviced regularly for the sake of preventative maintenance, then I would refer them over to the gaurdian of those records. If not, then I would pose this question to the service provider. I'm a little surprised this request is coming from the prosecution. I agree, it does seem a bit over the top. Hopefully, it doesn't escalate to going to any further extremes such as, ensuring that the electricity was in proper working order, and the live scan operator was free from illness at the time of capture, and the constellations were in stellar alignment etc., but the law is the law is the law. Maybe it's time to revisit the enforcement of an evidence act initiated in 1977 being implemented in this day and time. Good luck!

Hi Mike

How is it in Aussie. All Blacks Rule!

As suggested we can not say who was fingerprinted at the time, I mean we can't say the defendant was the person fingerprinted for this offence. Only the person in the watchouse who took the prints can give that evidence. But as the South Africans do, you could take the defendants fingerprints just before the case is heard and give evidence on that. Or do as I have done once, I took the thumb I id'ed while he was in the cell at court, then I stated I have fingerprinted and identified the defendant as the person who blah blah blah. My guess is that he is not on bail.

It is just a red herring the type Solicitors love to bring up from time to time you will probably not be bothered with it for another 5 yrs or more.

The computer issue is just an extra step, the fact that an IT guy gets up and says the computer system was working does not mean that therefore the defendant is the person you identified as I am sure you realise. If the issue comes up during evidence you could ask that the court give you permission to fingerprint the defendant to ensure the defendant is the person identified at the scene, as this is the best evidence possible my guess would be the judge would allow it. It all depends on how you say it. The judge will not want a misstrail in his court.

Hi Veronica,

I agree that to perform a comparison in the courtroom to verify that the subject in question is the subject's prints on the record is certainly one answer which ends all questions about the device working correctly or not. Also not a method I would prefer to choose though.

On a separate question you pose, each individual Livescan device is serviced by the vendor and system checks are also performed weekly. All faults and problems are logged daily as and when they come in. How far do we need to go?

G’day Neville,

I totally agree with you that only the person in the watchhouse who took the prints can give evidence of who was printed at that time – but we already do that – the print taker supplies a statement to say they took the prints of Joe Bloggs and then the expert supplies evidence of the match. Surely a simple one line in the print takers statement to say the device was working ok or a simple question in the box is suffice. Why the need for a certificate at all? (And just for the record I’m a Pom so the All Blacks win goes just fine and dandy for me to!!!)

Hi Mike

Totally agree, Fully trained operator etc should be a breeze.

The beauty with computer hardware is that when they go wrong they go spectaculary wrong. It is usually the operator and the software that is a worry.

I will not think any less of you, we have heeps of Poms working over this side of the ditch, mainly from London, most are really great to work with. I will be thinking of you tomorrow when the green and gold guys drag themselves into work, my bet is the words rugby, All Blacks and New Zealand will not be mentioned, just be thankful you are not from South Africa.