CLPEX Chat Board

Greetings All,

Here's some questions I've wanted to ask about the McKie comparison for a long time now, and forgive me if the answer(s) lies in the volumes of information already printed on the topic....(deep breath)...

Where did the original comparison exemplars (used in formulating the SCRO's original conclusion of certainty) come from?

I would assume that personnel working in law enforcement in Scotland would provide fingerprints as part of a "Criminal Background Clearance Procedure" the same as here at my agency. If so, do those fingerprints, once cleared, not become part of the employee's "Personnel Record"? Access to one's personal information is a difficult task here, and is never granted without some formal paperflow outlining the reason that access to that confidential record is required. With it stated that Ms. McKie is not recorded in Scene Access/Continuity Logs as having entered the crime scene, how is it that her fingerprints ever became available to persons conducting the examinations & comparisons relating to the investigation?
Also, was it the "Employee Fingerprint Record" used in the creation of the infamous charted enlargement, or was the known exemplar on that chart from the post-arrest fingerprinting of Ms. McKie ( or perhaps a general impression search warrant ). In any case, there ought to be, in my humble opinion, more than one 'ident' related to the doorframe mark...that being the 'original ident' made from whatever source of McKie's prints were available ( I suppose 'employee record' for elimination purposes ) then the 'court appropriate ident' likely being the fingerprints of the 'now accused of perjury' Ms McKie, taken post-arrest.

Further, is there documentation available which might describe how many other comparisons were conducted on the questioned print (doorframe print) prior to it being compared to the known exemplars of Ms. McKie?

I know I've rambled on here, but I think the issue is important to all of us, for don't we all have a set of our own prints sitting somewhere in our respective agency? It's important to know why those prints were taken and to consider what those prints could potentially be used for.



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As a detective constable serving in a support role during the Marion Ross murder investigation, Shirley McKie was assigned follow up leads in the case. She was never part of the primary investigative team and was never allowed into the house where the murder occured. One of the follow up leads involved a handy man by the name of Nimrod Asbury who had put a small addition on the back of Marion Ross' house some months before the murder. Shirley McKie and her partner visited Mr. Asbury, who had no information to assist but who asked the two constables to go with him to check on his grandson, David Asbury, who had threatened suicide the night before and who had not been heard from since. Mr. Asbury added that David had assisted with the work at Marion Ross' house. Because David had worked on the house and now, shortly after the murder, he was apparently despondent, the two officers went with Mr. Asbury to David's flat where they conducted a search of the flat for anything that might have to do with Marion Ross. Shirley McKie found a Marks & Spencer candy tin in David's closet. Inside the tin was currency to the amount of about one thousand pounds (forgive me for not remembering the exact amount). That an unemployed laborer would have such a large stash of cash was suspicious and focused the investigation on David. Shirley McKie's inked fingerprints were taken and submitted to the SCRO with all of the other inked fingerprints of the officers who had assisted with the crime scene, but the intent was for elimination on the candy tin. When her fingerprint was identified inside the house, she and her partner both denied that possibility because they had never entered the house. The detailed log book at the scene showed Shirley McKie had never entered the house. All of the officers who had been at the scene confirmed she had never been inside the house. Her partner who had been with her constantly during the investigation said she had never been inside the house. Nonetheless, the power of a single fingerprint identification was so great that she was charged with perjury when she testified at David Asbury's trial that she had never been inside the house.

Additional fingerprints were taken from Ms McKie. During the charting of her fingerprint to "prove" the "identification," at least three different versions of her inked left thumb print were used in different charts. All charts, however, included points that were in obvious disagreement between the latent and the inked print. But the series of charts taken in order of date/production number progressively crop the latent and used smudged inked prints, thus removing more and more of those points of disagreement. I believe the SCRO were in the process of "cleaning up the outstanding marks" (a slang term I have heard explained to me in the UK to describe the process of assigning the unidentified latents to police in order to avoid having to answer for them in court). The problem was that once the "identification" had been made, admission of a mistake would have focused attention on the fingerprint evidence against David Asbury, which also turned out to be erroneous (David Asbury's conviction was overturned on appeal because of that error).

Very interestingly, the latent print in question was powdered and lifted ten days after the investigation was begun, even though the door frame was supposedly powdered initially on the first day. Why, then, would they repeat the powdering ten days later? But because the print was developed on the second powdering, it was given as "proof" the fingerprint had been left between the two powderings. The problem with that scenario is that, as I understand it, other latents were developed on the door frame, some of which were also identified to Marion Ross. Now that presents an interesting question -- How did she return from the dead to deposit her fingerprints on the door frame subsequent to the first powdering? I believe the answer is that the first powdering either never took place or was so incomplete that latent prints were missed. I believe the second powdering took place when someone realized the doorframe or parts of it had been overlooked.

The latent in question was supposedly compared to every person who had legitimate access to the scene. I was provided with photocopies of all of those inked prints, but some thoughtful person had pushed the darkness control on the copier to the darkest setting and all of the copies provided were virtually worthless.

Whose fingerprint is it? Perhaps we will never know. Could it happen again to somebody else? You had better believe it!

Shirley McKie's inked fingerprints were taken and submitted to the SCRO with all of the other inked fingerprints of the officers who had assisted with the crime scene, but the intent was for elimination on the candy tin.

Thank-you Pat. This is essentially what I was looking for, although I made the wrong assumption that SCRO would have used prints from Ms. McKie's record of employment.

I was hoping to discover how different agencies deal with 'police elimination' prints for it's one thing to 'eliminate' an officer at a scene, and a whole different can of worms when you look to use, in a criminal investigation (in this case a perjury allegation), the fingerprints offered as part of a clearance (job application) process. I doubt this would happen in Canada. Also, the prints offered for Elimination are for elimination only! Now, if an elimination were effected, and the party testified contrary to the result of the fingerprint examiner, I suppose the very first thing that a perjury investigation would require would be a set of prints OTHER than those which were supplied for Elimination Only. Investigators would have to submit statements and a WARRANT to obtain the exemplars from the perjury suspect would have to be granted by a judge. If the subsequent comparison again showed 'identification', then an arrest could be made and a third set of prints would then be taken (post-arrest). It would be that third set which we would use to create a fingerprint chart from, for those would be the ones the court would require as an exhibit against the accused in the criminal proceeding . I'm rambling again...

So, if I understand your reply, the examiner(s) went the 'extra mile' to compare the questioned print to person(s) who , on the face of things at least, could not have made the impression.

I believe the SCRO were in the process of "cleaning up the outstanding marks" (a slang term I have heard explained to me in the UK to describe the process of assigning the unidentified latents to police in order to avoid having to answer for them in court)

This statement, Pat, is very troublesome. Are you saying that prints not identified to the 'players' in a crime scene are routinely and deliberately "falsely eliminated" to police personnel - so the courts can be satisfied that there aren't any loose ends in the fingerprint evidence component of the case?

Terry,

I dont think that it is all that uncommon for police applicant fingerprint cards to be stored and searched the same as a criminal card. At my former agency (a state level one) all the fingerprint records were kept in one location and in one database in AFIS. So when we searched a latent through AFIS, we were searching against all the criminal cards, police applicant records, Self-Defense Applicant reocrds, child-care worker applicants, teacher applicants, etc.

During my time there I made many-a-ident from a police applicant record through AFIS.

Andrew,
I recall a case in a Metropolitan area here where the media reported that the police officers fingerprints were identified on beer bottles at a location which tended to support a complaint of police brutality.
While police are expected to adhere to a higher proprietry of conduct, it remains that the prints on file, or in AFIS, or wherever, were never given to the employer (the police agency) for any other purpose other than PRE-employment screening. The use of the those prints without a warrant, in a criminal investigation, seems unreasonable to me. While I don't condone police, or any person for that matter, committing criminal activity, I can neither support the use of a fingerprint file for a purpose other than what it was intended. Given the events of the McKie case, I wonder why we aren't all ( everyone in law enforcement )demanding the return of our "employment tenprint" to our own possession, and supplying elimination prints only after signing a legal disclaimer much like the ones signed by persons giving Consent DNA or other samples for investigative purposes.

This opens up a whole new argument. In the UK at the moment the Government are trying to put forward arguments for ID cards with genetic and fingerprint information on them. They could then have a database with the fingerprints and dna of every English resident (not sure about Scotland, Wales and Ireland.)

Civil rights activists (probably the wrong word) are totally against this because of cases such as the Shirley McKie case.

For the most part I have no problem with the ID cards as I have nothing to hide. The fear is of total identity theft and false accusations.

I have nothing to hide either. I am sure Ms. McKie, when offering her prints for mere 'elimination' purposes thought to herself... "What harm could possibly come from this?"

Mr. Smith,

I see where you are coming from, but have a different opinion than you. I was a commissioned police officer and my fingerprints were in the very files that I searched everyday. it never bothered me one time that my card may turn up in a AFIS results list.

I am also not sure of the verbiage on the forms you fill out for these 'applicant' fingerprint recors also. There may be wording in there that the individual consents to have their FP card remain on file to be used in the event of another criminal record check or in the course of a criminal investigation.

Terry, my knowledge comes from watching the Justice 1 broadcasts. My advice to you is to view the archive footage for an accurate answer to your question. In brief, the S.C.R.O four explained that a collection of elimination fingerprints are held with their bureau. The Fingerprint Examiners involved in the Marion Ross case requested a list of names of all those who had legitimate access to Marion Ross's home. These names were issued by the Reporting Officer.

"I believe the SCRO were in the process of "cleaning up the outstanding marks" (a slang term I have heard explained to me in the UK to describe the process of assigning the unidentified latents to police in order to avoid having to answer for them in court)"

Pat Wertheim - I myself have never heard of this turn of phrase nor have I ever seen this procedure practiced in my bureau and I would very seriously doubt it were practiced in any bureau in the U.K. This statement is not only extremely libelous to S.C.R.O but to all U.K. Fingerprint Practitioners.

"This statement, Pat, is very troublesome. Are you saying that prints not identified to the 'players' in a crime scene are routinely and deliberately "falsely eliminated" to police personnel - so the courts can be satisfied that there aren't any loose ends in the fingerprint evidence component of the case?"

Terry, this statement indeed is very troublesome as it is also very untrue. I would urge you to disregard Pat Wertheim's post if you are seeking an accurate account of events.

I am also not sure of the verbiage on the forms you fill out for these 'applicant' fingerprint recors also. There may be wording in there that the individual consents to have their FP card remain on file to be used in the event of another criminal record check or in the course of a criminal investigation

Our national applicant form states "For Identification Purposes Only" in bold type at the top, and other than normal tombstone-type data fields, has only a checkbox where "Employment" can be chosen over other options such as "Vulnerable Sector", "Volunteer", "Adoption"...and a number of others. There is no suggestion as to any particular use, but there is a note on the bottom that the provisions of the Privacy Act pertaining to access..applies.

The words "For Identification Purposes Only" imply that the prints are not for use in criminal investigation, but rather are intended to establish whether the donor of the prints has a pre-existing criminal record. Filing the card in AFIS is not done at the national level - it is simply a drag through the database without adding the card.

While it might be useful to maintain your members in AFIS 'for elimination', what happens in the unfortunate case where one of your members crosses the line, breaks the law, and leaves a print behind? If it is identified on a tenprint card which was never taken except "For Identification Purposes Only", you could, as an Examiner, end up in the unfortunate position of being able to help solve the crime and weed out a bad apple from your ranks, but you'd be doing so with a set of prints never intended for that purpose. I'm no lawyer, but I'd think that the lawyers would have a field day with this scenario.

Plus, what if YOUR print is erroneously identified to a scene? Take the McKie case out of the scenario and just imagine what crap you'd go through if someone in your agency, or region, got it wrong and associated you to something heinous. Even if the mis-ident was acknowledged, having an investigation of any large scale focused on you, even for a brief time, would likely be a very stressful event in your life.

Ok Pat, so now we in the UK have a euphemistic term to descrie the routine stiching up of Police Officers, "cleaning up". I am a UK Forensic practitioner and I am sure that, at least in this instance, I can speak for all Bureaux this side of the pond. No Fingerprint Expert in the UK would consider a minimum of seven years of communal showering, slopping out and unwanted same sex advances on a nightly basis to be a viable alternative to discussing an unidentified mark in the witness box. That is what her Majesty would require of us if the procedure you refer to is discovered. We are there to tell the court what we examined and what conclusion we drew from our examination, end of story, Within that context, how can a mark you did NOT identify become a problem?
If such a practice has become so ubiquitous as to enter the vernacular, why is the McKie case unique? Every Bureau in the UK should have it's "PC Plod say's he wasn't there" case.
Usually, and I know this was the case with McKie(as one of the "four" confirmed at Justice 1), a list of police eliminations is provided by the OIC. This list would not be divided into who was doing what in the investigation or where, it simply lists names of Officers involved in the enquiry. To simply select a name at random to eliminate is to run the very real risk of confidently identifying PC Plod at the murder scene when it turns out that he was only involved in house to house enquiries for two hours some twenty miles away!
I think, on behalf of all UK Examiners, I will file this one under urban myth because, like the one about Richard Gere and the hamster, I've heard the story, I just can't believe it happened.

Caveat: I am not a lawyer and make no claim to being qualified to give legal advice!
However, my initial training in the science of fingerprints included review of case law (especially in the USA) related to the acceptance and limitations of fingerprint identification evidence. And I have since sought to maintain and build upon that initial training with updates on current caselaw.

My recollection is that it has been fairly well established that:

• 1. Fingerprints are not incriminating unto themselves.
  2. A fingerprint card is not a criminal record, it is an identification record.
  3. A fingerprint card may be self-authenticating.
  4. Demographic information (name, physical description, DOB, POB, & other non-criminal related information) on fingerprint card is not incriminating or indicative of a prior criminal record.
  5. If a fingerprint card contains information indicating a prior criminal record, it may be acceptable to block out that information, enabling introduction of the card in court.

In the state of Arizona, USA, as well as other states, legislation has provided for a single inclusive fingerprint database, containing fingerprint (identification) records originating from both criminal and non-criminal sources. Once in the system, those records will normally be retained until age 99. To date, there have been no successful challenges to this system.

The Shirley McKie problem was caused not by the availability of employment related known fingerprints, but by an error in the comparison with an unknown crimescene latent print. That kind of error can happen regardless of the source of the known fingerprints.

Terry,

I guess that it would all come down to the terminology on the paperwork. I know that my former state agency filed all types of records together and those weren't discriminated into spearate databases for AFIS purposes. I know we never had a problem with attorney challenges to the admisibility of these prints while I was there, and I never heard of any challenges prior to my employment.

I understand the potential negative effects if someone bum ID's a print against one of these cards, but I also realize that these cards could provide a huge benefit by being in the system. Take your example of if a police officer committs a crime and is identified through AFIS by a hit against their applicant card. I think that the potential good of having a crime committing police officer off the streets outweighs the bad of rare instances like the McKie family has endured.

Just my opinion though.

I know our AFIS contains applicant cards from both lab personnel and officers. We hit to officer prints all the time, because we have a recurring problem with officers not wearing gloves while processing scenes (we serve a number of agencies throughout the state, not just our own troopers). SO, we often end up with evidence that contains the officer's (very clear!) prints.

My point is, while we are not going to pursue criminal charges against an officer for handling evidence without gloves on, and while nothing is a bigger letdown than getting an AFIS hit, only to subsequently discover that it was to an officer, it sure is nice to have an ID on these prints, and not have them languishing for years in the registered prints file, when we could easily clear them by identifying them to the officer who made them.

We also have not had any problems with the source of these cards -- at least, none of which I am aware.