CLPEX Chat Board

As usual Charles Parker has raised a serious issue. One that should be brought into the open. As with his article last week, I completely agree with Charles because no prints should ever be tossed; especially, those that may be of insufficient friction ridge detail for individualization. It could come back to haunt you.

The reason I make this statement is because at this agency, no latent prints are discarded. If they currently have no value, then they have always been filed in the case folder. The reports in the folders are always microfilmed sometime after the statute of limitations has taken affect, and this includes the latent marks. In fact, David Ashbaugh brought up this very subject back in December '05 in his class. The majority of the students raised their hands signifying that they, too, discarded prints of no value.

I say that the way it is done at my department is a correct way to hang onto the prints for a few years is because in the winter of '07, we obtained the NEC AFIS System along with the Foray Imaging System. I went back through those folders where the statute of limitations had not expired yet and pulled the latent marks that contained some ridge detail but before, did not contain a sufficient amount because of quantity/quality issues. Not all of these were deemed to now contain sufficient friction ridge detail, but many did. And after processing, these latent images were then entered into the AFIS System. Not many, but a few hits were made on those prints.

So, for this reason, or for those that Charles brought up, latent marks should NOT be discarded just because they now do not contain sufficient friction ridge detail. You will never know what the future may bring.

I too think this is a very important topic, although I'm more concerned with analysts developing ridge detail on evidence but never getting to the point of documentation (ie. lift, photo) because they've already determined that they can't identify it or compare it. A report goes out saying that no prints of value were developed. This happens on a daily basis. If a more skilled/trained/motivated examiner without the thousands of outside pressures reviewed that same evidence I imagine they would find something that they would have kept in a very high percentage of those cases. I feel that it is important to work cases with the thought that no matter how good you think you are, someone else is always going to be better or atleast have a better day and may get a chance to review the evidence. I would rather get criticized for over using the term Inconclusive than for not keeping latent evidence. Unfortunately, it is unlikely the physical evidence will ever get reviewed but that's exactly why it takes a lot of self-checking/critiquing to do this job.

My concern has always been the defense hiring an outside expert to do an evaulation on the latents of "no value." To simply say "I sh*t canned
them" leaves the impression that your hiding something. I always kept an "inactive" latent case file seperate from the active cases (of value) lifts. I beleive defense has a right to see all the evidence that was submitted to the LP unit.
Wayne

The common civil term for general destruction of evidence is spoliation. While in Texas, the destruction of evidence by anyone with the intent that it become unavailable in an investigation or pending trial (the intent being self-evident, I think) is a felony, a criminal charge against an official person is unlikely. (Unless, of course, the destruction was truly intended to alter the outcome of the proceeding.) Of more concern is at trial. In many jurisdictions in a civil matter, the jury can be instructed to infer from spoliation that the evidence would have been unfavorable to the spoliator if it had been available. There have been exceptions to that, but they were mostly in cases where all the experts for both parties had agreed before destruction that the evidence had no value. The status of spoliation in criminal cases is probably more variable across the U.S. I can imagine that some jurisdictions adopt the civil standard. But the following is the case law in Texas, so far as I can find:

State v. Vasquez
Tex.App.-Houston [14 Dist.],2007.
"...whether the trial court erred in suppressing the results of tests performed on a defendant's blood sample. The trial court granted a pre-trial motion to suppress this evidence based on the trial court's conclusion that the State violated the Texas Constitution's Due Course of Law Clause when the State destroyed the blood sample before trial. Contrary to the trial court's ruling, we conclude that, in this context, the Texas Constitution's Due Course of Law Clause provides the same protection as the United States Constitution's Due Process Clause. Because the blood sample was not “material, exculpatory evidence” but only “potentially useful evidence,” under both of these constitutional provisions, the defendant/appellee had to show that the State destroyed his blood sample in bad faith. Because there is no evidence of bad faith, we reverse the trial court's order suppressing the test results...Although this court by no means condones the pre-trial destruction of evidence (exculpatory or otherwise) without prior notice to the defendant, the law and the record evidence compel us to sustain the State's sole issue, reverse the trial court's order granting the motion to suppress, and remand this case to the trial court for further proceedings consistent with this opinion."

Judge Seymore, concurring:

"The instant case arises at a time when Texas has achieved an international reputation for its flawed crime lab processes, misrepresented results, and lost or destroyed evidence...

"In consideration of the fact that the blood sample was destroyed long before Vasquez's request for independent testing, the trial court cannot be faulted for finding an absence of bad faith in the instant case. At most the State was negligent. I would therefore not urge the court to give an adverse inference spoliation instruction. (Advising the jury that they could infer that the evidence would be adverse to the State. - G.C.)

"In the exercise of its discretion, however, the trial court could, instruct the jury, when weighing the evidence in the case, to consider the State's destruction of the blood sample and the defendant's resultant inability to conduct his own independent test to assess the reliability of results produced by an agency of the State. In the trial court, the prosecutor acknowledged, as a result of the destruction of the blood sample, that defense counsel now had “an argument to present to the jury ... to perhaps put some doubt in someone's mind that maybe he should have been able to test it, maybe they should doubt it or whatever.” This argument is always available to a criminal defendant; however, I believe the trial court has an important role in fashioning spoliation remedies calculated to encourage or coerce the State to preserve the evidence...

"On remand, the trial court has discretion to include a spoliation instruction. See Wise, 221 F.3d at 156 (stating district court has discretion to admit evidence of spoliation and to instruct jury on adverse inferences); see also Trevino, 969 S.W.2d at 959, 960 (Baker, J., concurring) (stating, in civil context, trial courts have broad discretion in choosing appropriate sanction and in instructing juries). Such an instruction might include, but should not necessarily be limited to the following: (1) the State had a duty to preserve the blood sample; (2) the State failed to preserve the blood sample, thereby precluding the defendant from obtaining independent tests, and (3) when determining reliability of the State's expert testimony, you may consider the fact that defendant was precluded from testing the blood sample."

White v. State
Tex.App.-Houston [14 Dist.],2003.
"Affidavit from counsel for defendant charged with felony intoxication manslaughter, stating that defendant's accident-reconstruction expert indicated need to inspect bicycle victim was riding at time he was struck by defendant's car...

"In his sole point of error, appellant argues that the trial court erred in refusing his requested instruction on the State's alleged failure to preserve evidence. Specifically, appellant claims the State failed to preserve as evidence the bicycle the complainant was riding when it was struck by appellant's car. Appellant filed a pretrial request for a special instruction as follows:

'[S]hould you believe by a preponderance of the evidence that the State of Texas had the capacity to preserve the destroyed or nonpreserved bicycle
of the complainant, then you may infer that any subsequent analysis of that evidence would have produced a result favorable to the defendant.'...

"The duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed...At best, appellant has shown only that preservation of the bicycle might have been favorable, which is insufficient to satisfy the requirement of materiality...In addition, failure to preserve potentially useful evidence does not constitute a denial of due process unless appellant can show bad faith on the part of the State."

My summary:

1. The State has a duty to preserve evidence.

2. Failure to do so may admit inference of lack of credibility.

3. The court cannot exclude evidence unless the State's destruction or loss that prevented defense analysis was done in bad faith, that is, knowing that the evidence would be exculpitory. But note that, unless the trial court excludes the evidence in pre-trial and the State has time to appeal the ruling, the State has no recourse if the court excludes, as we saw in the recent fingerprint exclusion case.

4. It is generally very difficult for the defense to make an affirmative showing that the evidence would have been material.

5. The trial court may instruct the jury to consider the State's failure to preserve evidence and the inability of the defendant to examine it.

6. The trial court has the discretion to give the jury a civil-style spoliation instruction, which is far more harmful.

7. The defendant bears the burden of showing that the evidence was material and favorable.


There is some informal opinion that how a trial judge handles destroyed evidence depends on how offended the judge is by the destruction, which often means how much it complicates or muddles the case at trial. This may often depend on how well the analyst can expound on why the evidence was thought to have no further value.

I think most of us here think of this in terms of scene lifts, and there are obviously practical limits with other items as to what can be preserved. It's generally not practical to preserve an entire scene in situ so that it's available to a defense analyst, and that should be easily defensible as far outside reasonable and usual practice. It's less clear in the case of objects that were taken in evidence and processed. Will all that junk gathered by enthusiastic officers be preserved after processing with negative results? Probably not, but it's worth thinking about the nature of the case when making decisions. Just because someone can challenge their unavailability or try to infer something isn't necessarily cause to keep it. But any doubts should be resolved by the prosecutor who will have to sponsor the case in court. Wise property custodians do not make their own decisions on destruction and return of evidence and rely on official written policy, usually based on the statute of limitations, and court orders. And good policies make it clear that the policies apply to all agency employees, not just property room folks.

The Colorado State Legislature just passed a law mandating the retention of all DNA evidence. This law requires that biological evidence with the potential for DNA testing (whether it was tested ot not) be retained until the statute of limitations has expired, or if there is a conviction, until the defendants sentence has ended. With the potential for lifted latent prints to contain biological material, and evidence submitted for latent processing possibly containing biological material, this should make our decision to keep latents or dispose of them pretty easy here in Colorado.

Interesting!

I teach policemen, crime scene techs, ... and one of the standard slides in my "introduction" is that everyone, from the first man/woman on the crime scene, over the crime scene techs and detectives up to the judges are bound to make choices.

Where do you put your perimeter ?
Where do you look for finger marks ?
Which techniques do you use ?
How do you lift them ?
Do you lift anything with ridge detail ?

Every choice you make will have an effect on the quality/quantity of finger marks.

Those who never want to make a choice will end up having too much work and too little success.

Of course there's a different approach in volume crime or "serious" crime, but no one will ever be able to collect and analyse every possible piece of evidence. I agree however that no one should toss away anything he photographed or lifted.

Gerrit

Being at a small lab we have the following way to deal with latent lifts. Firstly, anything submitted, whether there is ridge detail or not on it is returned to the submitting agency for them to store after exam. I scan or photograph everything that is submitted and archive the electronic images of said items.