CLPEX Chat Board

I was taught under the old saying "keep it simple stupid". The easier it is to understand the easier it will be to explain to the jury. It is possible to have a yes, no or maybe answer. I would imagine that a good many examiners have had that maybe...that gave hope to an investigator, but did not document it in the report.
Our agency uses the same phrase, different version "without effecting an identification". If it is an inconclusive result, a notation in the narrative advises what is needed for the examination (ie: better quality knowns) to be completed.

I was shocked by Kasey's finding that an examiner would destroy any type of evidence...for any reason.
Refering to the question "If you saw similarity but not enough for you to personally make a match, would you destroy the print?

Definitely NOT. What I did not see, another examiner might, or vise versa. It would depend on the print and the examiners experience. What I might miss with 4 years experience, might be simple to a 30 year veteran. I do not believe this would make me incompetent or a lesser examiner, just that I would not have the experience to "visualize" certain details (as my cohort would say) This is something that agencies must be made aware of. This is not an excuse for examiners who cannot make a difficult call, it is a matter of training and experience levels that will always vary between examiners.

I understand the political facets of todays agencies; however, examiners being pressured into making calls or making calls for fear of disciplinary action are (in my opinion) foolish. You are the experienced and trained professional that decides the outcome of the examination, not policys or an investigator who's case hinges on you making a call.
Be fair, Be true and Be strong

I personally am in favor of more specific inconclusive language for different situations. I know we're all fond of our canned, uniform language, but the simple fact is that half the time, the officers don't understand what we're saying anyway. I get phone calls all the time from officers who have read the canned language in the report and are asking, "So, does that mean you IDed the guy?" I think our two-or-three sentence menu is making things more vague, not more clear. Why are we so afraid of explaining ourselves, and our science?

If I had a print where everything I saw was in agreement with the guy's standard, but there wasn't enough to call the print, would I write a report that said "no identification was effected?" Well, yes, I probably would, since that is policy. But do I agree with it? Not really.

Because, to me, "no identification was effected" has been tainted with a connotation of "this wasn't the guy" because that is what it most often means. What I really mean to say is, "this was probably the guy, but I can't prove it." Of course, you can't say that either, because it's prejudice without proof. But why can't we say "A comparison to the standards of John Doe failed to exclude him as the donor of LP1" or something similar?

If questioned on that stand what this means, I would be happy to explain that everything I saw in LP1 was consistent with the standard provided by Mr. Doe, but there was not enough information present to conclude that Mr. Doe's finger, and no other in the world, could possibly have made that print. Isn't this more accurate information to give the jury, rather than giving them the impression that Mr. Doe could NOT possibly have made the print? As I said in a post on another thread this morning, once I have presented my results, it is up to the lawyers to convince the jury what to make of it. The strength of my opinion should go to the weight of my finding (i.e I couldn't prove it was him, but I can't say it wasn't either). But I shouldn't change the content of what I found (i.e. reporting "no identification" which makes it sound like it definitely wasn't him).

There are other 'inconclusive' cases I could illustrate, too, but I don't want to bore everyone to tears. Suffice it to say, I believe that there are several inconclusive situations where we could be more clear about saying what we mean, even if it results in *gasp* having to explain it in court.

As far as destroying evidence goes, I have to agree with Joe in registering shock and disapproval. Well, maybe not shock; I've heard this sort of thing goes on. But I CANNOT condone it. There is NO excuse for destroying evidence. To me it smacks of a desperate attempt to hide what you see as your own incompetence. That is never acceptable. If you can't make the ID, say so, subject it to peer review, and take it like a man. If a more experienced examiner can make it, good. The case has benefitted, and maybe you'll learn something too and benefit from that person's experience.

Gosh I'm preachy today. Sorry about that. I'm done now, honest.

Unfortunately, with today's accreditation requirements, there are "canned" report formats that must be followed from the policy and procedure manual. Many examiners are no longer able to "explain" findings outside of pre-approved statements.

Quite right. I know we have to use canned statements. What I meant to say, and was perhaps not clear, was that we could make MORE canned statements to fit more specific situations. And if these statements were not understood in court, we could explain it there.

My perception is that we are afraid to get more specific with our canned statements because we don't want to have to explain them in court. That is what I'd like to see change.

Sorry if I was confusing.

Heidi Fraser wrote:But why can't we say "A comparison to the standards of John Doe failed to exclude him as the donor of LP1" or something similar?

The defense attorney ought to be on his feet at your voir dire arguing this is more prejudicial than probative (one of the basic legal tests for evidence). There's a risk the jury is going to read this, no matter how carefully couched, too broadly.

Heidi Fraser wrote:Isn't this more accurate information to give the jury, rather than giving them the impression that Mr. Doe could NOT possibly have made the print?

I'd expect that if there's no ID, there's going to be no print testimony. One of the crime scene folks is going to talk about how they often don't always find identifiable prints at crime scenes and this is one of those cases. The defense attorney would have to tread very carefully in giving the impression you fear as he isn't allowed to tell the jury something he knows not to be true and if he opens the door he'd risk just the testimony you propose.

Heidi Fraser wrote:As far as destroying evidence goes, I have to agree with Joe in registering shock and disapproval. Well, maybe not shock; I've heard this sort of thing goes on. But I CANNOT condone it. There is NO excuse for destroying evidence.

And if discovered by the prosecutor (who under Brady v. Maryland then likely have to tell the defense) it could cost the case. Many trial judges get very touchy (as do juries) about destruction of potentially exculpatory evidence. (And a print that is clearly inconsistent with the suspect and the knowns in the house could be potentially exculpatory.) If it comes out later, it could be grounds to overturn a conviction and send the case back for new trial.
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I'd expect that if there's no ID, there's going to be no print testimony. One of the crime scene folks is going to talk about how they often don't always find identifiable prints at crime scenes and this is one of those cases.

I totally agree with you that this makes sense and is often the way it happens. However, I have been called to trials in cases where there was no ID or even in cases where there were no prints of value found. In those cases, the ADA has been interested in having me explain why useable prints might not be found at a scene, rather than the officer. They seem to think these things sound better coming from the lab monkey.

And if discovered by the prosecutor (who under Brady v. Maryland then likely have to tell the defense) it could cost the case. Many trial judges get very touchy (as do juries) about destruction of potentially exculpatory evidence. (And a print that is clearly inconsistent with the suspect and the knowns in the house could be potentially exculpatory.) If it comes out later, it could be grounds to overturn a conviction and send the case back for new trial.

Yup, agreed. This is one of the major reasons I think it's a bad idea. I can just see it in court...

Defense: And did you receive 5 lift cards in this case?

Expert: Yes, I did.

Defense: And yet there are only 4 cards here now. What happened to the fifth card?

Expert: Oh, well, I was having a bit of trouble with that one, so I threw it out. (Or even better, as in your example, "It didn't match the suspect very well, so I threw it out".)

Yeah, that ought to go over well! I kind of figure once cases start getting lost and departments start getting sued by angry victims' families, the practice of throwing away any evidence for any reason (other than an expired statute of limitations) will stop. Meanwhile, I'll sit around and mutter, "It just ain't right" to myself.

The defense attorney ought to be on his feet at your voir dire arguing this is more prejudicial than probative (one of the basic legal tests for evidence). There's a risk the jury is going to read this, no matter how carefully couched, too broadly.

There are reasons that might be considered here. First, examiners work for the submitting agency based on the requested analysis. If all reports are limited to only what would pass defense muster in court, then a wealth of potentially valuable information could be denied to the investigators and the prosecutors and the defense during the investigative stages. This could help or hamper early stages of an investigation before suspects are identified and tried. The P.A. should be the filter that determines what is used and what is unworthy, and what the jury is asked to accept as evidence. What is never presented is never read "too broadly."

Second, is it common for the jury to have access to the entire forensic report? Not often, if ever. The evidence is "cherry picked" by the P.A. and available to the defense under discovery, but the information may never be presented in court if it cannot be established as hard "fact". I would think that a defense attorney would want to see everything, favorable and unfavorable, not just hand picked ammunition to muddy the water.

It should be the scientist's duty to report as much information as possible. It is not our duty to decide what is used and what is not used by the courts. Should we be forced to totally dismiss all latent prints that cannot be ID'd or eliminated?

Using that logic, if I have a shoe impression or cast that I can identify as sharing a common pattern class and approximate size with a control taken from a suspect, but there is insufficient detail to individualize the impression to that control, I would know that there is insufficient common detail between the impression and control and thus not report anything at all except insufficiency. I will not report that the outsole pattern is the same general pattern class. I will not report that the size is within a narrow size range. I will not mention in my report that anything of value might have been noted. The investigators will not know that they "might" have the right suspect for interrogation, or that their suspect controls did not leave that impression.

I completely agree with Heidi and mdavis and really think we should be granted a little more latitude than Individualize, Inconclusive, and Exclusion. There is a world of difference between a smudged print with insufficient ridge detail and a print with 4 or 5 points and overall consistent pattern (but not enough to ID)…yet both would be inconclusive.
I think we should be granted the same leeway that Trace Evidence is given when discussing hairs and fibers, or as mdavis mentioned, shoe and tire track analysts are given. I think the term “is consistent with” would be a more accurate description (which should be our objective) for ‘inconclusive’ prints that fall into the 4 or 5 point category.
It should be left to the attorneys to help put that into context for the jury, which is why they have the direct and cross.
It should not be our concern about what will prejudice the jury, we should be concerned with describing our results as accurately as possible.
PG
Ps. It would be nice to have a ton of stats to go with ‘How’ consistent, but until that happens I think just mentioning that it is consistent should do.

There are reasons that might be considered here. First, examiners work for the submitting agency based on the requested analysis. If all reports are limited to only what would pass defense muster in court, then a wealth of potentially valuable information could be denied to the investigators and the prosecutors and the defense during the investigative stages.

I was not concerned with the lab's report in that response. I'd like to see reports that are as complete and clear as possible. A report can be redacted by the trial judge if, for some reason, it is going to be a trial exhibit. I was concerned about the suggestion that "consisent with, but not able to individualize" should be given as trial testimony. This ought to draw an objection, preferably out of the jury's presence, where the judge can decide whether it is admissible or not.

Second, is it common for the jury to have access to the entire forensic report? Not often, if ever.

Rarely, tho I've seen it done. Often such reports are "ID" exhibits used in the expert's voir dire, for example. The jury doesn't see them. The trial judge might. Many prosecutors in my neck of the woods use an open files policy to comply with Brady. A smart defense attorney also asks experts about their files to see if there's material (favorable or unfavorable) that the prosecutor overlooked in compiling his file.

I think there may be a problem with the shoe/tire analysis -- frequency.

One can make estimates of, for example, the number of size 12 Bruno Magli shoes sold within a certain time period in a city, state, or region. One can hire an investigator to count the number of passersby wearing particular footwear in a given area.

Can you figure out the number of people with whatever features you deem consisent with, but not individualizable, in a given city, state, or region? Or is the examiner giving this testimony implicitly (or explicitly) saying "I have a feeling this is significant, but I can't prove it."

I did not address frequency in my response. My comments were intended to apply to the laboratory report wording. Only if the prosecutor told me that the shoeprint evidence was intended for trial use would I (or any) examiner go the the exhaustive extent of determining the brand of shoe (if unknown), contact the shoe manufacturer to determine the number of shoes made with that outsole pattern in that size range, the number of shoes retailed locally within an x-mile radius of the crime scene, or the defendant's residence, or his/her travel areas, or his favorite shoe stores, etc., etc.

Again, a report covers what an agency requests of the lab. If additional information is requested as a result of the initial lab report by either the submitting agency or the P.A., we will attempt to provide that information. This type of detailed information may also be the duty of the prosecutor's own investigator and may not involve the lab technician. We have a staggering backlog with which to contend. Unless we know the information is needed and appropriate to the case at hand, we don't go looking for extra work that may well be discarded and which would delay other important cases.

We have, perhaps, pushed the shoeprint analogy a bit too far here. Fingerprint pattern frequencies are generally known, although there seems to be some variation with ethnicity and other factors. An arch is about 5%, loops about 65%, etc.

The original comment, with which I think most agree, is that it should be admissible to report commonality between a latent print and a control even if the level of certainty is less than 100% provided the appropriate disclaimer is made in the report. This can be valuable investigative information to be used and/or discarded by the submitting agency. The frustration is in the increasingly restrictive wording being forced upon latent print reports by mandatory adherence to accreditation policies and procedures. It makes lab reports squeeky-clean, but there is now a lot of very valuable information in the dirt that is never reported.

In my office we have comparisons notes and a report (two different documents). We aren’t accredited so the results sent out don’t have to be ‘canned’ but I do think it’s important to strive for consistency. Our choices for results are:

ID
Exclude
Inc.
no value

This is what gets reported (along with requests for additional exemplars if needed) but we can still write more in our notes.

Our comparison notes can state almost anything we want them to. This is information you may want to remind yourself of if the case goes to court in 3 or 4 years. Generally we keep this short but I have been known to write “consistent w/ but lacks sufficiency”. I don’t write this as my result, this is the basis for my result of ‘inconclusive’. If this case goes to court and I’m asked about this (which I have been), I’ve said that ‘consistent with’ means that there are characteristics in common…like someone being female or having brown hair. This doesn’t mean that it’s likely them, it just means that they can’t be ruled out as the donor.

Some people think that if a print can’t be individualized then it should be labeled as having ‘no value’. I think it does have value to a person that can be ruled out as the donor, so I try to keep these types of prints.

Back to our comparison reports: As with a lot of examiners, many of examiners in our office see the need to expand the documentation in our comparison notes so we’re always trying different things. I just finished a case with hundreds (and hundreds) of latents. Many of them had no value but it was the perfect case to start working on a system of documentation. By the end of the case I had a system that worked well. I’d write 4 things, 1) what I visually observed (a brief explanation), 2) what my interpretation was (the basis or reason for the result), 3) the results of my analysis, and 4) any additional items I needed. Here are a few examples:

-Whorl / smeared and lack sufficient quantity of characteristics for a comparison / No Value
-r. palm / high quality and quantity / ID’d to SMITH
-overlapping ridges / lacks clarity and sufficiency / No Value
-L. loop / smearing / smearing makes characteristics unreliable / No value
-ridges are spotty / lacks continuity / No Value
-barely any ridge detail / lacks sufficiency / No value
-Lacks sufficient level 2 or level 3 detail / No value
-Delta area / consistent with #6 SMITH but lacked sufficiency / Inconclusive
-Whorl / clear / Negative to SMITH
-Tip / incomplete exemplars / Inconclusive – need tips
-Impression, with no clues of area or direction / can’t ID but can’t exclude / Inconclusive (I could ask for major case prints)
-L. Thenar / minimal level 2 detail, high clarity, high quantity of level 3 detail / ID’d to SMITH – chart enclosed in case jacket


-I thought it was important to note when the quality and quantity were high because in these cases no further documentation of the comparison is done. Any examiner can reproduce the results again at a later date. In our office we do add further documentation if the comparison is harder (like a drawing or a plotted chart).
-Of course we also have a lot of short hand that we use in our office so it wasn’t really as involved as I wrote it above.
-If ‘no value’ was determined then ‘lacked sufficiency’ meant that it lacked sufficiency a comparison and I was looking for quantity.
-If ‘Inconclusive’ was the result then ‘lacked sufficiency’ meant that it lacked rarity.

By the time I was done (since this was a big case), I had about 20 visual statements, 20 reasons for results, and the 4 basic results (ID, exclude, inconclusive, and no value). Even though it seems like someone could make this into a drop-down menu and this would standardize things and save time, I don’t really like that idea. It seems like it would be too easy to make a mistake by clicking on the wrong thing.

So, what I’m trying to say is that I don’t agree that ‘consistent with but not sufficient’ is a statement of probability, it’s just stating what you noticed. I also don’t think this information should be sent out in a report, it should be kept in the notes. But I do think it’s important to document so that if you look at this case years later then you’ll know that you did notice the consistency between the two images.

From those of you that are work for accredited agencies, is it really that limiting? Is it possible to include your visual observations and your reasons for your results in with the case information?

Part of this weeks Detail mentioned that there are a lot of meanings of ‘no ID effected’ and wondered if we should be using one term for so many different meanings. Those of you have been following this chat board for a while know that I’m not someone who likes the answer ‘it’s just semantics’, but in this case I think if things are worded right then semantics can be the answer. Maybe we can say that there are a lot of reasons (instead of meanings) for all of our conclusions. When I was working on my huge case, I found that I was using a lot of different reasons that resulted in 'no value', a lot of reasons for 'inconclusive', and a lot of reasons for ID's. Are there problems with having information in your notes that aren't in the report (legal issues, accreditation issues, or any other)??

Are not the terms "no value" and "insufficient" relative to the case at hand and the suspect list? For example, I can see that a smeared L. slope loop has only two visible level II details and no level III information. No value? Depends..... if my two suspects both have whorls only, or arches, or no L. slope loops, I can exclude. By labeling a latent print as "no value" during the "A" of ACE-V, you may eliminate a valuable piece of information. The print is of "no value" for "identification purposes", but it may have a great deal of value to an investigator. That is why pigeon-holing the "A" before proceeding to "C" can be problematic, and why drop-down multiple choice lists can shoot your client in the foot.

Again, this is looking at the bench notes and final report, not courtroom admissibility, which is someone else's domain.

Mike,

I agree that value is relative to the case at hand but I don’t think all offices operate this way. Many offices label prints as having ‘no value’ when they mean they have no value for individualization. I’m not saying this is right or wrong - I’m just saying it happens all the time.

In these cases are we eliminating potentially valuable information? Yes, it’s possible but isn’t there a practical side to our work? We can’t analyze every piece of ridge detail. One ridge may be able to be individualized due to the edges and pores, but on a practical level, we don’t have the resources to search for the source of this ‘one ridge’. Potentially we can swab this ‘one ridge’ for DNA but this isn’t practical either.

Personally, I don’t have a problem determining ‘no value’ during the Analysis phase of ACE-V. I don’t feel like I’ve pigeon-holed myself into anything. I should also mention that in my previous post I was using the term analysis not as the A in ACE-V but to describe my entire process. A print may be of ‘no value’ in an auto theft case but if that auto theft turns into a homicide, I might look at it again. It’s a judgment call based on the facts of each case. My conclusions are based on the information I have at the time. If that information changes then my conclusion can change. I don’t think ACE-V is a linear process, if information changes then I can go back and re-do my analysis. I can see where people might think this opens the door for criticism but I’ve never had a problem explaining this to attorney’s or in court. By documenting my reasons for the results then I know if it’s possible that I’m potentially eliminating valuable information (no ridge detail, questionable ridge detail, barely any ridge detail, low quality of ridge detail, low quantity of ridge detail, etc.). There are definitely different levels of why I’d say something isn’t of value.

I’m curious, you don’t determine value prior to doing a comparison?

The issue is a double-edged sword. If you discount the "current, apparent" value of an impression as inadequate, you back yourself into a corner by declaring it "no value." Yet, this is exactly what ACE-V is having us do by first analyzing the latent print in the absence of the control(s) before we even look at a possible comparison. If you write the report, aren't you required to announce how many latent impressions were found/developed, and the results of your analysis of each one? That is a basic requirement for a report according to the SWGFAST and hence accreditation guidelines, is it not?

So you submit the report and then find that there are three suspects, two of which do not have a L. slope loop. So all of a sudden, your "no value" report is in error if you issue an amended report that the third defendant cannot be eliminated as a possible donor of the latent print. Defense has a copy of both and you are sitting on the witness stand explaining how you can exclude two defendants but not a third by using an impression of "no value" as you stated in report #1. Yes, you can explain the logic and circumstances, but defense attorneys are not likely to allow that explanation, just that you changed your mind, or that you made an "error" in your original report.

I think we are on the same page in agreeing that something needs to be stated in report #1 that gives us the flexibility to use such information for what it's worth. SWGFAST and accreditation guidelines have severely limited our ability to do this. The problem stems from the attempts at standardization under "canned" reporting limitations and wording which are both the strength and weakness of such systems.

If you are not currently following SWGFAST guidelines or have been forced under accreditation standardization, I'm afraid your time will come very quickly. It is incredibly frustrating at times, and it can adversely affect the information released in a report, which must be 100% accurate. When we say an impression is of "no value", unless we have all the controls we will ever need for that case, we are often speculating that it will never be of any value. But things change. It might later under different circumstances, had our report not locked us out.