CLPEX Chat Board

We have a new development in my neck of the woods. The prosecution (because the defense wants it) is starting to subpoena the examiner(s) who VERIFIED the original ID, in juvenile court cases. Why? Is this some new defense ploy? Did defense attorneys all get together at the secret meeting and say, "You know what? Daubert isn't working. How can we mess with these witnesses? I know, let's subpoena EVERYONE IN THE LATENT PRINT SECTION!" "Brilliant!" "Wish I'd thought of that!" "Jolly good show!" (Probably not...but it makes a nice visual)

In our dept. the verifying examiner is only listed on internal forms...Since our DA's/Defense attny subpoena any/all names listed in a report (with no regard to their usefulness in the case), our verifying examiners don't have much of a chance getting called in. Maybe this is the case in your dept. but the verifying examiner is listed in a report?

Of course they could ask our examiner on the stand to name the verifying examiner, to which the reply would be "the record is kept internally and I would have to return to my office to research this". In most cases the delay would be unreasonable to the court.

As for the subpoena process of including all mentioned in a report, this has recently included secretaries in our section, records, and the property/evidence section, since they enter clarical data in some cases. Pretty ridiculous. However, our court liasion office has been pretty successful in getting these people released from appearing in court.

Likely, someone has been reading the Patterson case and some of the articles talking about the potential problems of non-blind verification. You might expect the attorney to want to know (1) about the relationship between the person who made the ID and the person verifying it (mostly looking for situations like a junior examiner reviewing a supervisor's work where the verifier might have a subconscious bias), (2) about the verifier's qualifications and procedure, and (3) what the verifier knew about the match and crime at the time the verficiation was made (are there any potential confirmation bias issues).

Playing hide-the-ball with the verifier's identity may work once, after which a smart attorney will just ask ahead of time. And it may backfire spectacularly if a defense attorney can paint the examiner's response about not knowing the answer or being able to obtain it with a quick phone call as duplicitous. If you are having problems with a public defender or particular attorney being overbroad in the subpeonas, you may want to see if your office can talk to their office and try to get a better sense of what they are looking for and why -- and thus be able to narrow things to actual areas of potential dispute.

If your verfiers are qualified and using ACE-V properly, you have little to fear. Read up on the blind-verification and confirmation bias research. Look at Mayfield and Cowans. Read over Patterson, which has some comments on non-blind verification. And be ready to explain why your lab does what it does.

Keep an eye out for red flags that will get the defense's attention:

"Difficult" matches -- low quality latents, lots of distortion.

High profile/stress case with pressure on police to solve quickly
Particularly emotional crime (most capital cases, many cases involving kids, for example)

Potential tunnel vision in investigation, rapid focus on one suspect and ignoring other leads (yes, you may not be able to see this from the lab)

Examiner and/or verifier knew or potentially knew biasing information such as confessions, DNA match, firearms ID match, eyewitness ID at the time of the comparison and/or before filing their report

Fingerprint match is only or virtually only evidence inculpating defendant.

Verifier and examiner in working relationship or lab culture that might appear to make it hard for verifier to challenge examiner's result (counsel may ask verifier if he/she has ever disagreed with any examiner in the lab, or with this specific examiner)

As irratating as this might be, attorneys can subpoena anyone involved with the case. Calling for the verifier actually makes more sense to me than getting the subpoenas for the evidence tech or property room personnel who accepted the evidence and their name is technically in the chain-of-custody because they carried it from the counter and put it on a shelf in the vault. But usually those get stipulated to or the judge will hopefully put a halt to something that is some kind of "defense ploy".

The bigger problem I see in this post is the idea of trying to hide information from the court about who did what in a case. All of this information should be and must be transparent. I'm not saying that the name of the verifier needs to be in the report, but it has to be documented somewhere. Having that information "hidden" in paperwork or internal files in such a way the defense won't see it, especially after they've filed a discovery motion, is just wrong. Making misleading statements regarding that information or the difficulty of obtaining that information is even worse.

Some agencies have policies or practices that notes or data from case analysis be kept in some kind of office file or agancy file that they feel is not considered the "case file" so they don't have to turn that over in a discovery motion. To me this seems very troubling.

Patrick Warrick wrote:The bigger problem I see in this post is the idea of trying to hide information from the court about who did what in a case. All of this information should be and must be transparent. I'm not saying that the name of the verifier needs to be in the report, but it has to be documented somewhere. Having that information "hidden" in paperwork or internal files in such a way the defense won't see it, especially after they've filed a discovery motion, is just wrong. Making misleading statements regarding that information or the difficulty of obtaining that information is even worse.

Before getting down to reading Pat's post, this is the first thing that popped into my mind when reading the second post in the thread. I'm glad he brought it up.

I've been called to testify as a verifier in check forgery case (all ID's were made to inked prints on the checks too). I think I ended up having a couple of hours on the stand total, and I testified prior to the case examiner. To expand on what Lisa mentioned on how you should have nothing to fear - from our discussions after the fact, the examiner in my case further solidified the information that I had previously given - making our testimony that much stronger.

In our case, I don't think we were subpoenaed because the defense wanted it, but because the prosecution wanted to really present a firm case for the fingerprint ID's.

The case that started this off was several multiple latent prints. Some were primo (the type you do need a glass for) and the suspect came up through an AFIS Inquiry.

In the middle of the trial and as the LPE stepped onto the stand the defense asked for a mid-trial Daubert Hearing on the admissibility of the latent print evidence. After about 2 hours on the stand the judge ruled in favor of the prosecution and the latent testimony would be allowed. The defense then entered a motion that the evidence not be allowed since the Peer Review (verifier) was not sechuled to testify(the primary examiner had testified about peer review and the sections SOP's on peer review). The judge granted the motion for the PR Examiner to testify. The call went out. It took a while for the PR examiner to arrive. The PR Examiner was on the stand for about 15 minutes and then was excused. The testimony went fine.

This was the prosecutors first case and when the word Daubert was uttered he asked for help. The Chief Prosecutor came in and second chaired the Lead.

The request for the Peer Review (verifier) examiner on this next case is just a precaution by the Chief Prosecutor so the court does not get delayed. Will it last----probably not. Is there any discussion about all the examiners being called over----no, and I doubt a judge would allow persons to testify on a case that they have no involvement in.

In defense of the defense attorney. It was my impression that he was just trying to provide the best defense for his client. He definitely knew about Daubert and he definitely new which questions to ask. The problem was he tried it on the wrong LPE. The LPE did a excellent job. So good that after the guilty verdict was returned the Judge called the primary examiner and asked to come over on a tour of the Latent Print Section. Besides the standard Daubert questions the Primary LPE also gave testimony on Lab Accrediatation and LPE Certification. This went a long way in impressing the judge.

I was not the primary LPE I was the PR Examiner. After 15 minutes they kicked my butt off the stand. I was late getting the call, I was late getting the vehicle and got lost on the way there. I was late and the prosecution is trying to avoid that in the future.

It is an ant hill and not a mountain---nothing more---nothing less.

Take Responsibility For What You Assume and What You Say

Although we do not document the verifier in our reports, his or her initials and ID # are added to the latent card in question. Some agencies nearby have a "Latent Worksheet", which is an internal form documenting several areas when examining a print such as distortion, ident/no ident, examiner, and verifier. I have never been questioned in court about the identity of a verifier or have not been called as the verifier (yet)... however, this would not bother me one way or the other. I would testify to the identification as I always do, whether the original LPE or the verifier.

I would be very surprised if any of our judges would accept an attempt at an unannounced Daubert challenge during routine testimony. This would (and should) require a great deal of preparation by the LPE, and the possible addition of outside assistance. If this ploy in fact worked, it would only work if the LPE was unprepared. So far, I know of no Daubert challenges that have been successful in any of over 40 states. It would seem to be a last straw attempt by a desperate defense who has no clear evidence of possible innocence.

The issue of independent verification is messy. I was not able to attend the IAI conference in San Diego, so I speak from my own perspective which will no doubt be supersceded by those in the know. However...

It seems to be virtually impossible for a case to be "independently" verified. First, unless all cases are examined by two examiners, regardless of whether there are latents of value, then every case would need to be worked twice -- from scratch. Obviously, the original evidence, if processed, would have to be processed twice from its original condition -- obviously impossible in most cases. So we assume independence only in looking at developed latents in the "A" stage of ACE-V. This poses problems in that the first examiner could not place any markings of any kind on any latent prior to the second examination. Doing so (L1, L2, etc.) would suggest a decision during "A" that the print was in fact recognized by the first examiner to be a latent print of possible value and hence would focus attention of the verifier to the marked latents. So the first examiner would have to find a way to identify the latents "of value" in written documentation without tipping off the second examiner that the prints of value had been so called. This might be prudent with one lift on one card, but virtually impossible in any large case with multiple developed prints on multiple items.

If the case involved named suspects, with controls provided, there is a bias created by the submitting agency. If there is no suspect, then the second examiner would (should?) be required to duplicate any AFIS search on those latents independently determined to be of value. Taking an AFIS candidate list is bias, especially when only one AFIS search was conducted by only the first examiner. This would also double the AFIS backlog.

It would seem that the whole concept of "independent" verification is an oxymoron. There does not seem to be any concern now for the validity of the ident. If the defense truly believed that the ident was bad, the rather obvious solution would be to enlist their own "independent," (already biased) legitimate LPE to re-examine the latent(s) in question. I guess it could be argued that by creating such havoc that case processing times are extended by a factor of 2X, they are increasing backlogs and consequently pushing cases beyond the statue of limitations, thus creating the potential of winning by defalt.

You’re post brings up a good question, does an independent verification need to be blind to be considered independent? In my personal experience, I’ve never had an attorney suggest that an independent analysis needs to be blind but I have had them suggest that it should be done by someone outside of law enforcement. Apparently some people think that because I’m paid by the Sheriff’s Office, I’m automatically biased towards ‘getting the bad guy’ and if my work is verified internally then my verifier and I can’t have independent thoughts.

I’ve had several defense attorney’s imply that since my identification was verified internally, and not by an external source, that the verification wasn’t an independent verification. I try to explain to them that the value of ‘independent verification’ is in having someone with an independent view, not necessarily someone with a different employer.

While investigating how the Mayfield error happened, it was found that during the FBI’s verification process they weren’t expected to disagree with the original examiner. In this sense the verification process wasn’t an independent process. I can assure you (and any attorney) that the verification process in my agency is extremely independent! I would guess that at any given time I can find at least 5 cases being verified where the verifier doesn’t agree with how the examiner worked the case or even some of the conclusions in the case.

We used to not document this disagreement but I think we’re now starting to realize that documenting it is a good thing. First, it shows that our verification process is an independent process. The examiners in our office always felt like our verifications were independent but since we didn’t document disagreement, we were hard pressed to show that we ever disagreed with each other. Second, disagreeing isn’t a bad thing as long as we can explain why the disagreement exists. Documenting disagreement has also made our examiners document the basis for their conclusion when conclusions are more complex. This is a work in progress but we’re all getting much better at articulating our thoughts as we improve our process. Documenting disagreement is also a good quality assurance measure to protect against bias, it shows that you’re not ignoring information that didn’t support your conclusion. All of the verifications in our office aren’t blind but they are independent.

Regarding the time to process a case increasing……instead of looking at it as creating unmanageable backlogs I would think that management could use this as a valid reason for increasing the number of examiners they employ (just a thought ).

And of course I can’t end this post without stating my concern over whether or not the verification process has more value as a ‘confirmation process’ or a ‘peer review process’. I won’t re-state my prior arguments in favor of peer review but I don’t think we can discuss the value of independent verification without mentioning the disagreement on what verification entails.

Michele Said

the verification process in my agency is extremely independent! I would guess that at any given time I can find at least 5 cases being verified where the verifier doesn’t agree with how the examiner worked the case or even some of the conclusions in the case.

P.T.L.---There is another agency that is having the same problem we have.

About every 4-5 cases I look at I find a problem (small) or the conclusion is not what I think is the best. For awhile I thought we were the only ones having that kind of difficulty.

I will enjoy it when told in court that "Verification" is just a rubber stamp! And I will be able to answer "No Sir--We have SOP's for a challenge to an examination and for Conflict Resolution".

As the old saying goes "it ain't nothin' money won't fix." So now you double your latent print staff. Where are you going to get the room, the money for salaries, and where on earth are you going to find another X examiners who are qualified to perform "independent" verfications without years of training? There isn't a crime lab in the country that isn't short of examiners, space and funding now. I was told (grapevine) that our public defender office has a budget about twenty times greater than the combined budget for all the crime labs in the state. No wonder they can afford to fly in their "independent" experts for rebuttal.

We don't (often) begin with accredited field officers rolling up on a scene. We don't often (in my part of the country) have crime scene investigators who are cross-trained specifically for evidence recognition, collection, preservation and packaging, and a working knowledge of lab capabilities. We don't often have agencies who are accredited at storing and triage of evidence for submission to the crime lab. And we sure as heck don't have any sort of competency tests for attorneys who make their money trying to endlessly discredit the one link in the chain (the lab) which usually IS accredited, and whose employees are usually civilian technicians, not commissioned officers.

The courts are often lax in their procedures as well, and few judges have any training in crime lab workings, or science in general. I would guess not one attorney in ten can give an accurate description of the "scientific method." I have been in court on occasion where the judge breaks for lunch, everyone leaves the courtroom, and the attorneys leave evidence lying on the table with no one left in the room, yet they hammer on minute details in the chain of custody until it's in their possession, then it seems not to matter anymore.

So are we biased, incompetent, or just plain dishonest? What I have to keep reminding myself is that I do the best job I can. I don't call an ident that I can't sleep with at night. And I don't care what the court system does with my findings after I'm gone from the witness stand. If the system doesn't trust me and my lab's verification procedures, that's their problem and their loss. "This isn't a court of justice, son, it's a court of LAW."

My understanding of the verification process entails enabling another competent examiner to duplicate my work and for that LPE to be able to reach the same conclusion as I. The only way to do that is to document the work. For that reason, our reports detail the ACE-V process from start to finish. Keep in mind, I work for a medium sized agency, but there are only two of us pulling double duty as crime scene investigators and LPE's. In our reports we describe each impression, each known exemplar, any shortcomings in any of the impressions, any area that was disregarded during the comparison and why (usually because it is smudged or otherwise unreadable), and how we went about the comparison process itself. I don't mean "beginning with the core and counting two ridges to the right I observed a bifurcation which opens downward..." but describing where we began the comparison, which general direction we worked (clockwise, counterclockwise, etc) and how many points of agreement we found. We also detail any discrepancies, whether or not they can be explained, are they sufficient to consider an exclusion or finding of inconclusive, etc. The whole point is to give the verifying examiner as much information about what we did and how we did it so he can, in fact, duplicate our work. If the verifier agrees with our conclusion then all that is left is for him to sign the report as the verifying examiner. That is the same final report which goes to the case file and to the courts.
In the event of a conflict, our procedure is to forward the impressions to the GBI Crime Lab and let them work it from scratch. If that happens it is documented in a report as an inconclusive comparison along with the reasons for the conflict. We've been working together for two years now and only had one conflict so far. The GBI also called it inconclusive, go figure.
I think that those are reasonable measures to ensure "independent verification", but given our size I don't think we could ever completely eliminate some type of bias. So far we've been successful in court and it doesn't seem to be an issue. To tell the truth, I think it's helped us stay out of court simply because of the level of documentation

(Being the devil's advocate here......)

What you are describing is not "independent verification". What you are doing is a massive job of inducing bias by not only telling your verifier that you have found a match (or non-match) but also telling what details you observed, what was observed, how you performed the analysis, comparison and examination. "Look at this. Don't you think this is more blue than green? Well, yes, now that you mention it, it does look a bit bluer than I thought at first."

In addition, your written documentation would seem to be exhaustive to the point of excess. What on earth do you do with big cases containing hundreds of latents, write out a description of each analysis for each impression? What of those you deemed "of no value" but which later might prove to be of some elimination value (a no-value whorl in a case where the original suspect has none)? How long does it take to document a single latent?

The verification process should be totally separate from documentation in order to be truly independent, should it not? I have found that different examiners approach each ACE differently. I may chose to "memorize" one set of grouped L2Ds, which you may begin with another. Both of us reach the same conclusion from different starting points.

I am greatly disturbed that we are going way too far in this process, trying, in effect, to "teach" inexperienced attorneys and the courts our ACE process when they do not have the background and especially the experience to follow the complex logic necessary to effect an ident (ah, excuse me, individualization ... why use a 2 syllable word when a 5 syllable sounds more professional). If I am called to re-examine a comparison, I don't want to know what you think. I want a clean slate. If I can't "see" it, I don't care what you found, and I don't think it is "fair" for you to try to convice me otherwise by pointing out things you think you saw that you think I missed. This is what such exhaustive written documentation leads to .... in addition to wasting massive amounts of valuable time that we don't have the luxury of losing. Why not use check-sheets for common observations. What about printed enlargements of idents rather than reams of writing (a picture is worth a thousand words)?

If the call is so close that total independence yields disagreement among experienced examiners, then the call should be "inconclusive" (Mayfield, McKie, the list goes on). It may truly be a valid ident, but lack of truly independent consensus should reflect that.

(Back to reality.....)

The verifier is biased if the original examiner’s notes are reviewed? Attorneys can’t follow complex logic? Individualization is a 5 syllable word?????



The problem with so many accusations of potential bias is that these arguments all seem to exclude the reality of independent thought. While I realize there are situations in which one examiner might be cowed into agreeing with a more forceful or experienced examiner, I believe the reality is that these situations are far less common than posts to this site would have me believe. Is there a large percentage of cowardice in this field of work??? Where are all these reports of latent examiners gone bad? I know Mr. Simon Cole would have us believe it were true, but do you really believe that? I spent too many years getting to where I am in my life and career to ruin it all cause someone else wants to bully me into agreeing with them. I gots two feet and can stand up just fine, thanks.



What about something REALLY looking more blue in a different light? By your reasoning, you cannot be wrong. If you think it is more green than it must be or you are both doomed to an eternity of “agreeing to disagree” for fear of being “influenced”. How dare someone try to “unfairly “ influence you by showing you something you might not have seen but is STILL REALLY THERE? How are you ever going to become a better examiner if you don’t allow yourself to see things through someone else’s eyes? The first thing I thought of when I read your post is an example a friend used to illustrate “sufficiency” to me many years ago. (Please forgive me for those of you who have read this story before):



A car runs a red light at a high rate of speed causing a fatal accident. The car speeds away from the scene.

There are four witnesses to the entire incident. All four were standing on the same street corner, the same distance from the accident.

The first witness is a 16-year-old high school football player. He tells the responding officer that the run vehicle was an “old, shiny red and white convertible.” He doesn’t know a Chevy from a Ford, knows even less about vehicle years, he doesn’t know about different license plates and he did not pay attention to this one anyway.

The second witness is an average 32-year-old male. He reports to the officer that the run vehicle was an older model Corvette convertible, red over white and that the vehicle had Wyoming plates, but he did not get the number.

The third witness works at a Chevy dealership and is an antique car buff. He tells the cop that the vehicle was a cherry red over white 1958 Corvette convertible with Wyoming plates. He further advised that he has attended antique car shows in the Rocky Mountain Region for over 30 years and that he has only ever seen one vehicle like that and he knows the owner’s name is John Smith and that he lives somewhere in Laramie, Wyoming.

The fourth witness is an off-duty Wyoming State Patrol officer. She tells the responding officer that the run vehicle was a cherry red over white 1958 Corvette convertible with Wyoming plates. She also advised that she had recently checked Department of Motor Vehicle records for a similar vehicle that was involved in a separate traffic incident she was currently investigating. Her investigation to date in the other case revealed that there was only one vehicle of this make, model, year and color registered in Wyoming and that this vehicle was registered to John Smith of 123 Chestnut Ave. in Laramie, Wyoming.



All four witnesses saw the same thing from the same vantage point. All four therefore had the same objective observation (facts is facts). All four witnesses had the visual information available to them to identify the run car, but only two of the witnesses had the training and experience to individualize the vehicle.



By your reasoning, if the responding officer later asked the first two if the vehicle they saw was perhaps a Corvette, even if the first two witnesses realized that yes, it was a Corvette (because of course they have seen one before and now they remember what they are called), they wouldn’t be right to say so as they were “unfairly” influenced.



The reality is that unless we as a community decide to have a round robin verification process, wherein we send our latents to an examiner in a whole other jurisdiction, free from any influence by us/detectives/media/etc. and they send theirs and they send theirs, etc., then we will never have this “truly independent verification”. And even then, we would know that at least the vast majority would be idents cause that is the main reason you would send a print off to be verified.



I have the extreme benefit of working with an astoundingly gifted LPE with more experience already than I ever hope to get. She has brought me some WICKED prints to look at. Sometimes I see it, sometimes I don’t. We blow it up and look at it together and see what each other sees and sometimes that helps me see what she sees and have the confidence to say “ID”. Is this bias?? No, this is reality and both of us learning to be better examiners by seeing things through another’s eyes.



I have nothing to hide about my examinations. Everyone can see whatever they want and I am happy to explain to anyone who wants or needs to know why I came to the conclusion I did and why, as it is the reality with every exam I make (match or not): I am willing to stake my professional and personal reputation on my conclusion. It is my JOB to make sure the attorneys (and judge and jury) are educated and can see what I see and understand why. Frankly, I don’t see it as “complex knowledge” at all. In fact, I would be SO HAPPY if everyone in the world was better versed in both latent examination and crime scene investigation. How very COOL would that be??? How much easier would my job be? Very.



(In-di-vi-dual-iz-a-tion. That is seven. Eight if you count “dual” as two syllables, depending on where you live. I bring this up not as a nose thumb, but to perhaps illustrate to you that sometimes you shouldn’t believe everything you think.)



; )