Subject Elimination on a Print of No Value

[LPE]

I recently had a case which involved an inked fingerprint on a forged check. The inked fingerprint was insufficient, though clearly a whorl. I wanted to process the check with ninhydrin hoping to develop more detail within the inked print. However the county prosecutor was waiting, in court, for the results. He was considering dismissing the case if the inked print did not turn out to be the subject. I informed him that the inked print was insufficient, but that I was not finished with all possible processes. I also mentioned to him that the inked print was a whorl and that his subject had no whorl patterns. He said that was enough information for him to dismiss the case and he wanted me to stop working the case and issue a report on what was done to that point. My department does not normally report comparisons based on Level 1 detail. The inked print would be reported as insufficient for comparison purposes and that further processing was not completed. I am curious to hear how other departments handle such situations. How do you word reports for such cases?

[Dave Grady]

In my opinion the prosecutor is out of line to rush you. I believe a latent print examiner should finish with all processes he thinks are necessary before reporting on anything.

[Pat A. Wertheim]

What do you mean, "of no value for comparison?" Of course it was of value for comparison! You could exclude the suspect based on level 1 detail alone. Are we here only to convict? Or should we render a correct scientific conclusion even if it EXCLUDES the suspect? In my agency, we would issue a report excluding the named suspect on level 1 detail alone in the situation you describe, even if the fingerprint on the check lacked sufficient detail to ever make a positive identification. If the defendant in court was charged with "passing" the check, and if the fingerprint was place on the check at the time and place it was cashed, then the prosecutor probably figured (and probably correctly so) that the defendant was not the person who passed the check. Any other examination, such as processing with ninhydrin, should have been requested by the investigator well prior to the trial, or could be requested by the investigator or prosecutor after dismissing the charges against the defendant. What if the defendant's fingerprints show up with ninhydrin? Easy -- refile the charges. Dismissing them in court is not a "not guilty" verdict and there is no right to "double jeopardy" protection from refiling the charges if more evidence such as ninhydrin prints are subsequently found.

[LPE]

Thanks Pat. Those were my thoughts exactly. We just don't have an official policy on how to report the exclusion. I want to have it added, but was curious how others viewed such reports.

[Kasey Wertheim]

I also agree. From the perspective of examination, you quit a comparison after looking at a whorl and knowing beyond all doubt that it could not have been made by the same finger that made a loop. The reason you stop the comparison is because you have reached a scientific determination based on a thorough analysis of both impressions, a comparison of the available detail, and an evaluation. Your conclusion is absolute; that there is no way that a finger of that person (palm and feet are another issue) could have made that impression.

If they want to argue that it could be a toe print, that's a whole different ball game. (but I think it would be a fun one!)

-Kasey

[Guest]

The key phrase is 'based on a thorough analysis'.

I'm not looking at the specific case mentioned above, these are just some basic concerns I have with the overall premise. It seems like it would be easy to eliminate based on level 1 detail but I have seen cases that if an examiner did this, their conclusion would have been wrong (this is from asking examiners what their conclusion would be on some examples I have). There are times when the conclusion seems so obvious that someone might not feel like 'a thorough analysis' is needed. I think it can be done but it's a risky area of analysis. There are just too many reasons for misinterpretation. Eliminate based on level 1 detail may not lead to an erroneous identification but could still lead to an erroneous conclusion. We could then discuss whether missed identifications are as serious as mis-identifications, but I won't stray from the original topic.

Michele

[Kasey Wertheim]

The key phrase is 'based on a thorough analysis'.

Agreed. An example: Yesterday I was reviewing a latent candidate list on a high-profile latent AFIS search. I hold "exclusion" to the same level that I hold "Individualization". In other words, I have to find a sufficient quality and quantity of disagreement (detail out of sequence) that I know without doubt that it wasn't made by the same source as the known print. If there is any doubt (like it could be distortion), I will find additional disagreement, or look for the "kicker" that tells me beyond all doubt that there is no way it could match.

The price of an erroneous exclusion (it actually was a match) is too great to pass up.

-Kasey

[Guest]

Early in my career, I made an erroneous exclusion in a murder. Luckily, the investigator submitted a second set of the suspect's prints to me six months later and I easily made the identification. It turns out the original suspect prints were not well rolled in the area where the identification was made. It had been foolish? careless? of me to exclude rather than ask for better inked prints. Nonetheless, after that, I have made it personal policy and finally got my department to make it agency wide policy that we have exclusions verified also.

That murder trial was lots of fun. I had the prosecutor waving one report in the air saying it was an identification and the defense attorney waving the first report in the air saying it was an exclusion. What fun! In the end, I was able to explain to the jury how I missed it the first time and the murderer was convicted. But after that, I realized the consequences of an erroneous exclusion are not slight. Exclusions are scientific conclusions of the same degree of certainty as individualizations and should be taken seriously and verified.

[MIke French]

Each time this topic comes up I am surprised at the number of experienced examiners who have not seen cases of level 1 distortion. In many instances I have seen level 1 detail in a distorted print look like a completely different pattern type.

I want to ask examiners rendering exclusions based on distorted impressions (if level 2 is insufficient I call that distorted) if they are testifying that the impression was "likely" not made by the subject, "highly likely" not made by the subject, or "absolutely" not made by the subject? If you are saying absolutely, how do you know?

Since the example in this thread was an intentional print I believe there is "some" value to testimony that excludes the subject. However, I think this would be a different story if we were discussing a chance impression.

If this was a latent print could we say this is absolutely not the subject's print? I don't think so. If we spent 30 minutes on the stand explaining distortion through deposition pressure, and all of the other factors in leaving latent prints and we come out with a weak statement that the print probably is not the suspect's, are we saying the suspect did not touch the check? Of course not. I ask what value are we bringing the court with this type of testimony (and therefore what value does this print have)?

I think the jury would more likely be misled that the suspect was not involved with this type of testimony, which in fact would be speculation.

[Wayne]

I’m on the fence about this myself. What if there is general pattern agreement but no level two details? Do you state that the subject can not be included or excluded?

[Mike]

Wayne, that is my position. If you cannot say it is positive or negative then it is inconclusive. The term we have always used in this case is that the print is not of comparison value.

Some people can get hung up on the literal interpretation of that term since technically anything can be compared. To remedy this I would like to see that term changed to "not of forensic value". That is, testimony about a latent print that cannot be individualized should have little or no meaning to a judge and jury and therefore case reports and testimony are a waste of resources. I think this applies to most inconclusive testimony about latents but certainly this will not always hold true.

Of course the inked print on the check is slightly different in the fact that it was an intentional recording. I would agree that an experienced examiner could render an opinion that the print is "likely" not the subject's print based on "apparently" different pattern types. However, do pattern types become distorted enough to fool examiners? Yes! How often? We don't know, and I don't think we can measure how often this occurs.

A much safer opinion is inconclusive and to me that means no forensic value.

[Dennis Degler]

[Charles Parker]

Althrough not exactly on line with this thread on Non-Suitable, I do have a latent that appears to be a loop but the identification was made with a whorl. Very interesting distortion effect. When it is mentioned in training about searching smart I bring this one out and say "but you also need to be through".

If anyone reading this thread wants to see both, send me an e-mail and I will return it as attachment.

[LPE]

Just so everyone is clear, the print originally mentioned was an intentional inked print placed at the time the check was cashed. It was clearly a plain whorl with both deltas visible. The ridges paths, however, were so discontinuous that it was insufficient for individualization. The prosecutor, who was in no way pressuring me (rush cases are a daily part of our life when you have backlog!), was interested in only the inked print . Their subject had no whorls, therefore, the print could not have been made by this subject. So the case was dismissed. If they decide in the future to finish processing the check, it can be done. It would be a waste of my time to finish a case that isn't needed when our backlog is extremely high.

[Mike]

Excessive deposition pressure can distort level 1 detail in inked impressions the as well as latents. This has fooled me and I have seen other experienced examiners fooled also. In the cases that I have seen that are known to be distorted pattern types (distorted enough to make one pattern type look like a different pattern type) the identification was made in an area not from the pattern type (such as a joint).

If excessive deposition pressure or excessive fingerprint matrix (in your case ink) or a combination of the two caused the level 2 information to become unreliable I would say that the correct pattern type could also be distorted and therefore misinterpreted. In that scenario declaring that the print is absolutely not the subject in question is a mistake on your part. Saying that the print likely did not originate from the subject in question would be safer but with no good data on how often this type of distortion exists I would not feel compelled to do so.

Just so you are clear I believe I understood you the first time. I guess this is one of the drawbacks to this type of discussion.

It might be educational to post an image of the print you are talking about and let us all have a crack at analyzing it.

Regards,

Mike