CLPEX Chat Board

Our lab's LP examiners are still requested by the courts to assist in proving prior convictions for enhanced sentencing. This currently requires the examiner to arrive at court, ink roll the convicted defendant, compare the inked roll(s) to the court documents (i.e. Minute entries or pen packs, etc) that have been provided by the prosecutor, have a second examiner verify the comparison, and then verbally communicate the conclusion of the comparison to the prosecutor and defense and then possibly testify to the conclusion. This is obviously very time-consuming and rather unnecessary considering that every defendant has a State ID number that is associated with thier fingerprint record and consequently all of their prior convictions (which have been consolidated and verified by our R & I bureau).

We are currently in discussion with the County Superior Court and their Law Enforcement Liaison to try and modify and improve the way in which they utilize our resources and this is a biggy! The challenge is getting the attorney’s and the presiding judge to have confidence in the existing Criminal Justice Information System that is already available. There is such a redundancy built in to having an examiner go over and identify someone that has already been identified through fingerprints.

So, are you or do you know of any agencies/court systems that already use the State ID number and only that unique identifier to prove prior convictions and enhance sentencing?

Thank you for your time. Your thoughts and feedback are really appreciated.

Short answer: No.

If I had this proposed to me, I would point out that the issue is not whether or not the person with the given SID had been previously convicted but whether or not the person sitting in the courtroom was the same person represented in the record. So, it's really not a matter of confidence in the state record system.

If the prosecutors are not routinely at least asking the defense to stipulate to the identity of the defendant as the same person in the record, doing so might reduce the need for the testimony. I have also found it not necessary to roll and compare in court, when the defendant was lodged in jail and available to me at my convenience, so I can later just show up, identify the individual in court and state my conclusion. It at least cuts down on the time spent in the courthouse.

In Canada we have a nice little work-around for court in tenprint to tenprint cases ( in custody 'liars' ) which is built right into our Criminal Code and uses Certificates in lieu of court attendance.

First, the government may 'designate' duly qualified applicants based on proven training and experience with the title "Fingerprint Examiner" (okay, I know that part sounds a little obvious, but it's for the purposes which follow...). You need to understand that our offenders' records of criminal history are maintained by the RCMP and include offences which are indictable in nature (felony) or dual procedure (felony or misdemeanor election) - and for each entry on the Record, fingerprints of the individual will support that charge and it's disposition.

The RCMP will, upon request, have one of their designated "Fingerprint Examiners" compare all the tenprints in a given offender's file and then issue a Certificate of Conviction and/or Discharge. This document ends up being called EXHIBIT B and has a reproduction of the offenders fingerprints and lists the date and place of disposition, charges, the sentence imposed, and name (including all alias names) for everything in the person's criminal past. This is mailed out to the requesting agency.

The tenprint of the accused, EXHIBIT A, - where he has given a *new alias name* and/or other false information meant to shield him from his criminal past - is then compared locally by a local designated "Fingerprint Examiner" to the RCMP's Certificate. A second "Certificate" is produced locally which basically states that the fingerprints of EXHIBIT A and EXHIBIT B have a common origin.

The three original documents ( EX-A; EX-B; Cert. of FP Comparison) are sent to the Court, with the provision that the accused must have reasonable notice of the prosecution's intended use of the Certificates. Now there's nothing to stop the defense from forcing the issue of the local "FP Examiner" attending for cross examination, but in my experience, it never happens here in my area. The fact that the offender's mugshot image is now on our fingerprint form is also a big help.

And for the record, yes I do have the comparison verified prior to issuing the Certificate.
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SYNOPSIS -- Criminal Code of Canada s. 667

This section deals with the methods available to prove a previous conviction.

Subsection (1)(a) provides for the issuance and admissibility of a certificate of conviction which may be signed by a judge, clerk of the court or a "fingerprint examiner" designated by the Solicitor General of Canada. (This is the RCMP Certificate of Conviction).
In the absence of evidence to the contrary, evidence that the fingerprints of the accused are the same as those which form part of that certificate is evidence that the accused is the person referred to in the certificate (subsec. (1)(b)).

A "fingerprint examiner" may also issue a certificate which links fingerprints attached to that certificate (This is the Certificate of Fingerprint Comparison) to those in the certificate of conviction (subsec. (1)(c)). The signature and official character of the person signing any of the above mentioned certificates is presumed and need not be proven (subsec. (1)(a), (c)).
With respect to summary conviction proceedings a copy of the summary conviction or discharge signed by either the judge or clerk of the court may be used to prove that the accused has previously been convicted. The signature and official character of the person signing the document need not be proven (subsec. (2)).
In summary conviction proceedings similarity of name will be sufficient, in the absence of evidence to the contrary, to connect the accused to a judge's or clerk's certificate, or to the copy of a summary conviction (subsec. (2.1)). (Note: In many cases a person convicted of a summary conviction offence will not have been fingerprinted in connection with that matter.)
The court may grant leave to require the "fingerprint examiner" to attend for cross-examination (subsec. (3)).
The Crown must give an accused reasonable notice of its intention to produce the certificate of a "fingerprint examiner" together with a copy of the certificate (subsec. (4)).

Carl,

Gerald Cough's point regarding "...whether or not the person sitting in the courtroom was the same person represented in the record" is well taken. I have personal experience of two defendents not being that person in the record (over 30 years of service & many court appearances). I also have personal knowledge of two others where colleagues made the comparisons.

I have always considered providing evidence that may help to exonerate a suspect an integral part of the job (although the opportunities may be rare), and as important as identifying/individualizing the perpetrator of a crime.

As to your specific problem of allocation of limited resources, several partial remedies may be available, depending on your jurisdiction and agencies willing to work with you.

1) Obtain the prints, both current defendent's and record (penpack or equivalent) a week or two prior to anticipated court date when possible. The comparison may then be more easily intetgrated into current caseload and completed in the lab/office. If verification is required, a second examiner should be readily available, and normally would not have to respond to court.

2) If the comparison has been completed prior to the court date, you (through the prosecutor's office) may be able to arrange for the court to accept an affidavit in lieu of court appearance in many cases. The court would likely require a pre-approved list of examiners including their individual qualifications.

3) While the desirability (if not need) for verification of latent print identifications seems to be pretty well settled, not all agencies or jurisdictions require routine verification of inked/livescan print identifications. While verification reinforces an original identification, the absence of verification does not invalidate an original identification. Is verification of "proof of prior" comparisons an actual requirement, or a policy that can be modified? (This suggestion is a reflection of current reality, and not advocating abandonment of verification.)

4) There may be instances where the defendent's current booking fingerprints may be sufficient for comparison (i.e., the subject has remained in jail since arrest until trial), thus facilitating submission for comparison with prior record prints prior to court date. If the comparing examiner is required to print the defendent, a single print obtained and compared to the current booking fingerprints may be sufficient (assuming the prior record comparisons have been previously completed).

None of these suggestions would entirely eliminate the need for allocating resources for proof of prior convictions, however could reduce the time and resources required, while preserving the defendent's ability to discover those very few instances where an error has been made in the record or assignment of SID number.

Hi Carl,

Please keep me posted if you get movement with our courts. We have tried to press the Deputy County Attorneys into having us do comparisons ahead of time instead of in court. I've had three different ones in the last month that agreed but then still subpoenaed me. When I explained the whole process and what we were trying to accomplish to them each of them said that our report (although certified and signed by two analysts) was not "official" and was hearsay. I was also told that the three different judges involved would not accept a hearsay report into evidence. I ended up testifying to my findings and to make matters worse, none of them would enter my report or let me use it on the stand for reference. One even added three new exhibits at the last minute.

Doing the comparison in the office beforehand certainly was better as everything was verified. It was complicated in court though as some of the exhibits were the actual documents I compared and some were originals or other certified copies. It made me slightly uncomfortable in one case as I was put on the stand right as I got to court. It was the first of the three cases in question and, at that time, I was under the mis-impression that my report was being entered as an exhibit. Suddenly, I was being handed documents and being asked if they were the ones I had compared. In that case, doing the report before became a big disadvantage on the stand...maybe I have trust issues, but I didn't "trust" that the DCA wasn't slipping in something I had not examined.

So, all this to say that our agency as not found a good compromise on the issue with the courts here either.

I'm still stuck on whether this work (rolling someone in court and doing the comparisons right there) should be done by a latent examiner or a tenprint examiner. The answer should be a competent friction ridge examiner, but management tends to want to assign this duty to a group, not individuals. That then brings in the question of experience and training.

I would like to see more discussion in this area having worked as both a latent and tenprint examiner. Although the print is in ink on sentencing documents since it is only one print and can be of dubious quality, where is the defining line between tenprint work and latent work?

Barbara,

You bring up a very good question about the qualifications of the person doing the comparisons on these types of cases. I am in a similar situation at work where the tenprint comparisons are worse than many latent print comparisons. Our tenprint examiners always have the "inconclusive" option available, in which case it goes to a latent print examiner. However, a tenprint examiner going on the stand in 5 minutes could find themselves in a very difficult situation when the comparison prints are of such poor quality that the examination becomes latent qualith and they feel an Ident decision is outside their comfort zone.

I recently had a poor tenprint comparison where the only part of 10 fingers that was in common was 2 characteristics to the right of a delta.

I am sure under most circumstances a tenprint examiner could make the comparisons in these types of cases with little difficulty. But would they feel they had a way out if they didn't feel comfortable with the conclusion of ident? Could or would they defer the case to a latent print examiner?

It all comes back to sufficient quality and quantity of ridge detail and the ability of the friction ridge examiner. Within tenprint examination, there is a continuum from newly qualified to experienced tenprint examiners. And with latent examiners, it proceeds from newly qualified (proficiency that is probably below that of "experienced" tenprint examiners) to experienced latent examiners. I don't think it's wise to send anyone into a situation where there is a good possibility that an uncomfortable situation could occur. But exactly where that line exists is up to the supervisor and/or agency making that call. But that call should be made with full knowledge of the issues within this thread.

Does anyone want to write a Weekly Detail highlighting this issue? A poll could be conducted to provide insight into common practices.

-Kasey

Barbara,

Suddenly, I was being handed documents and being asked if they were the ones I had compared. In that case, doing the report before became a big disadvantage on the stand...maybe I have trust issues, but I didn't "trust" that the DCA wasn't slipping in something I had not examined.

This kind of problem can be avoided in most instances if the examiner always initials & dates all evidence that is examined, unless there is a specific reason/request to not do so. The practice can make life in court much easier. Since the prosecutor may request that a certified copy of a penpack (or equivalent) not be marked on, an alternaltive method of documentation should be pre-arranged (i.e. placing the document in a sealed & initialed plastic bag with the appropriate page in view; or the examiner making a photocopy of the appropriate page/pages at the time of examination, & having those copies available on the stand for reference).

I'm still stuck on whether this work (rolling someone in court and doing the comparisons right there) should be done by a latent examiner or a tenprint examiner.

Although a qualified & competent tenprint examiner may be able to do routine comparisons, the variables specified indicate that the better choice is a latent print examiner. I speak from considerable experience, initially as a tenprint examiner, and over 30 years as a latent print examiner.

The first variable is the quality of the record print (penpack or equivalent), which usually is a photocopy or fax copy of a single fingerprint. Suffice it to say that all copy & fax machines are not created equal! In addition, court personnel or others designated to obtain that original print are seldom well trained in what is required for optimal fingerprint identification/individualization.

The second variable is the quality of fingerprint(s) one is able to obtain from the defendent in court. I have experienced many skin condition problems in court. In one instance the defendent had apparently used sandpaper to obiterate the finger patterns.

As a result, I learned that in those instances when there was no opportunity to preview the record prints or skin condition on the fingers of the defendent, an examiner must expect the unexpected . Many of my court-time comparisons for priors presented challenges similar to some of my more difficult latent print comparisons. Latent print experience has been invaluable in being able to complete those "known print" comparisons.

To ask a tenprint examiner (with no latent print experience) to do those type of comparisons could very well be setting them up for failure. Given the unknown variables, and preview of the comparison not being an option, a latent print examiner is the most logical choice.

As always, further questions or discussion is invited.

Bob T.

Thanks for your suggestion, Bob. I do initial off on things I examine unless specifically asked to not. I should have gone on to say that when put in that spot, I told the judge that I had previously done a report on the items in question, had a copy in my brief case, and requested that I could fetch my report for comparison to the documents for accuracy, which he allowed me to do.

All our examiners know that if they are uncomfortable with a comparison they don't complete it or call it inconclusive. Usually, what that means is the state is unable to prove priors and aggravate a sentencing so they just drop the aggravation. My concern is that we send the best, or at least qualified examiners to assist the court (this is an internal, on-going discussion I am having with my agency as we send one tenprint examiner to these hearings and their training is not documented nor are they regulary observed or evaluated by a supervisor). I am not advocating latent over tenprint by any means. I am advocating training for whoever is tasked with doing priors testimony at either the state or federal court level (of which I have done both).

I have always considered providing evidence that may help to exonerate a suspect an integral part of the job (although the opportunities may be rare), and as important as identifying/individualizing the perpetrator of a crime.

I agree wholeheartedly, Bob. We actually do this quite often as we cover probation revocation court. I had two last week alone where the person in custody was not the person wanted on a warrant they were being held on. Three or four times, when going through the court file, I have found more than one person's prints in the file. (and trust me, the judge never wants to hear that!) These were single-print sentencing documents that had never been id'ed to a SID number...just to get back to Carl's original thread.

For those that may not be familiar, at least here in Arizona, if the state alleges one or more prior felonies to aggravate sentencing, the defendant either has to plead to his priors or the state has to prove them. If the state cannot produce a fingerprint expert and prove it was the defendant sitting in court is the one convicted of the priors, they cannot ask for an aggravated or increased prison time based on the defendant's prior record. That is why we are often called because the defendant has nothing to lose and time to gain by forcing the state to prove priors. Often, just our being there causes the defendant to plead and the county attorney will offer a couple years off sentencing to move the process along. Currently, the documents themselves are not sufficient enough proof. Even if the person has been in custody the entire time, we still roll them to establish identity. Gerald's idea of doing that at our convenience is a good one and I have printed someone in jail before court often. With our huge inmate population and numerous jail facilities that can be very complicated and time consuming in and of itself but would work well with smaller populations.

As far as our tenprint people deferring to a latent person as Kasey brought up, that wouldn't happen in a court situation but certainly is a valid option in daily case work and we have done this in the past on occasion to obtain verification of a print.

"Comfort Zone" is an interesting concept to me. Examiners should never be pushed to work outside theirs, I agree, but at the same time, if someone is being sent to court and calls comparisons as being out of their comfort zone that Ray Charles could do in a dark room on a bad day (which I have seen happen when the county attorney asked for a review after the court procedings) I think we are not doing our best work for the court system or the safety of the general public. I know that goes back to supervision and monitoring by the agency sending the examiner...which could be more easily done if these comparisons were done in an ACE-V office environment instead of in the back of a court room with everyone watching and waiting and the V is arbitrarily lopped off the procedure. (Some agencies are sending two examiners to court, but not mine)

As you may be able to tell, this is a discussion I am passionate about, even if I only have questions and not answers! I really appreciate the input. My chain of command just thinks I am difficult (which I am, but that is beside the point!) when I stress the need for training for our tenprint people, especially since they are testifying. Anyone going to court needs to understand the big picture because eventually, you will be asked about everything...skin development, Frye/Daubert, ACE-V, error rates, bad idents, etc. And, I know this discussion is going on in other agencies, too. Thanks for bringing to this board, Carl.

I have a few concerns with people ever doing comparisons in court.

1) By accommodating the courts in this manner aren’t we perpetuating the notion that comparing prints is very simplistic?

2) What other sciences are expected to do a comparison in court? Would you expect a DNA expert to take a saliva sample in court and do an analysis on the spot? Are experts going to court to do an analysis or are they suppose to be testifying to their findings?

3) When doing comparisons shouldn’t we have the optimal conditions (tools, lighting, time, etc)?

4) Shouldn’t we be encouraging comparisons to be done in a non-pressure environment? (Without the detectives or attorney’s standing over us)

5) When doing these types of comparisons, is the practitioner doing a full analysis or merely counting points? Are they looking for discrepancies or just looking for agreement?

6) By having multiple practitioners (the main practitioner and the verifier) doing their analysis in court, wouldn’t that be imposing a bias on the verifier? What if the verifier was a little uneasy about the conclusion, would they feel pressured to just agree?

7) Practitioners are also testifying to conclusions for an agency that hasn’t ever been able to regulate whether or not the conclusion is within the agencies guidelines (and no formal report was written).

I’m not suggesting that practitioners refuse to do comparisons in court. I’ve done it in the past and I’m sure I’ll do it in the future. I’m just suggesting that perhaps management and principle industry organizations may want to look at the ramifications of such practices. Wouldn’t it be a good quality assurance measure to refrain from ever doing a comparison in court? Even though we can do some comparisons in court, are we setting the precedent that a qualified examiner can always do this, and if you can’t you’re incompetent?

This sounds like a systemic problem for many jurisdictions. We are currently holding regular meetings with the Law Enforcement Liason to the Maricopa County Attorney's Office. So far, he has been very receptive and motivated to resolve this issue. The direction that we're going next is to explore the feasibility of using the SID # to establish identity (seeing as that is the intended purpose of the SID #). The challenge is in getting the judges to bear the same confidence in this "unique" identifier that our R&I bureaus claim. It seems that this resolution would at least satisfy most of these types of identity contests. On those rare occassions where the priors really don't belong to the defendant then the defense can raise the objection and proceed accordingly, i.e. comparison by a LPE, etc. (yes, I know this sounds a little like "guilty" until proven "innocent" but it really isn't - it's more like asking that they stay guilty unless proving otherwise is necessary). If the courts gave some credibility to the existing Criminal Justice Information System it would at least provide a foundation from which both prosecution and defense could posture from thus taking some if not most of the burden off of the crime labs. As Barbara mentioned, the defendant has nothing to lose by rolling the dice and hoping for the best, i.e. prosecution is unable to produce an examiner, court document impressions are very poor quality, the LPE gets hit by a beer truck on the way to court, etc. Michelle also brought up a few other issues that offer support for doing this some other way. And Bob, I know that you're very aware of this situation being as you are a recent retiree from AZDPS. I'm hoping that the solution to this somehow includes the very Records and Identification Bureaus that work so hard to identify, relate, and consolidate records by use of fingerprints because it seems to me that a reliable system already exists, now it's just a matter of getting the courts to trust and incorporate it. Thanks again for your suggestions and information.

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