T  H  E      D  E  T  A  I  L

Monday, July 28, 2003

Good morning via the "Detail," a weekly e-mail newsletter that greets latent print examiners around the globe every Monday morning. The purpose of the Detail is to help keep you informed of the current state of affairs in the latent print community, to provide an avenue to circulate original fingerprint-related articles, and to announce important events as they happen in our field.

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The Orange County Sheriff’s Department has begun to develop guidelines for ten print accreditation in their Cal-ID Section (AFIS). Help is being sought from any person(s) willing to share material they have gathered or implemented.  OCSD is familiar with ASCLAD 2003 guidelines and SWGFAST latent print, digital imaging, automation training and glossary documentation.  Additional comments, ideas and concerns are welcomed, and may be sent to Patti Blume: rd2516@fss.co.orange.ca.us, fax (714) 834-6446, phone number (714) 834-6417. Some of the things she is looking for include:

Ten print Examiner: Finger print training modules, proficiency testing/manual and automated screen samples (binary and grey scale), and finger print comparison guidelines for manual and automated work environments, recommended training courses and reading material.

AFIS: Maintenance and calibration records for: live scan, NIST compliant ten print work terminals (NIST, WSQ, and High Resolution checks), and flat bed card scanners. System competency checks for: ten print (and latent print) inquiry. Statistical models used to establish AFIS auto verification thresholds. Archive: NIST and WSQ compression compliancy checks. Safety: for Video Display Terminals (VDT). Vendor: Equipment reliability checks, System reliability checks through AFIS acceptance testing.

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Last week, we reviewed the SWGFAST Draft for Comment document, "Standards for Conclusions."  This week, we look at a strange line of questioning from the defense attorney in a recent Arizona courtroom.  Pat Wertheim shares with us this interesting line of defense questioning:

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I was hit with an interesting (and for me, fun) line of defense questioning in court last week. The trial was a simple DUI third offense. I had been asked by the prosecutor to compare fingerprints on the prior conviction documents with the defendant’s fingerprints, and then testify. My partner went with me to verify the identifications, watch me testify, and do the annual testimony review form for our lab.

The fingerprints on both prior conviction documents matched the defendant and direct testimony went smoothly and quickly. The prosecutor asked how we compare and identify fingerprints and I drew a large poster for the jury showing Level 1 – “Pattern”, Level 2 – “Points”), and Level 3 – “Shapes”. (If you have taken my class, you have seen that chart.) I was also getting non-verbal feedback from the jury indicating fairly good rapport. (If you have taken my class, you have also learned the formula for establishing rapport.) So I was quite happy with my direct testimony and confident of my ability to deal with anything the defense attorney might ask me.

We never know what to expect from the defense in these cases. Sometimes, the attorney simply says “No questions,” sometimes they ask a few questions just to go on the record as having cross examined the witness, but sometimes these cross examinations turn more aggressive, more vicious, and more detailed than rape or murder trials. A brief summary of the questions in this trial went something as follows:

Question: “Mr. Wertheim, do you stay current with the literature on fingerprints?”
Answer: “Yes.”
Question: “When was the last time you read an article on fingerprints?”
Answer: “The latest issue of the Journal of Forensic Identification arrived a few weeks ago and I scanned through it, but didn’t see anything I felt directly applicable to my job.”
Question: “There’s quite a controversy going on over in England right now over fingerprints, isn’t there?”
Answer: “Yes.”
Question: “Would you care to tell the jury about it?”
Answer: (So I launched into a lengthy discussion of the McKie case from my perspective as the primary defense witness in that case. It was obvious from the defense attorney’s behavior that he wanted to cut me off, but couldn’t figure out how to object to my answering in detail his own open-ended question. The judge, meanwhile, had leaned back in his chair with a big smile, watching the defense attorney’s discomfort.)
Next defense question, glad to put England behind us: “Well, Mr. Wertheim, isn’t it true that family members have similar fingerprints and can sometimes even have the same details?”
Answer: (I gave a succinct but fairly detailed summary of Kasey & Alice’s paper on formation of friction ridges and acknowledged that family members, especially identical twins, may have similar patterns, but pointed to the chart I had drawn during direct and told the jury that the similarities do not extend to Level 2 and Level 3 where the identification is made).
Question: “Mr. Wertheim, isn’t it true that there are ethnic similarities and people within the same racial group can have similar fingerprints [the defendant was a minority citizen]?”
Answer: (I gave a brief summary of the research of Cummins & Midlo and others in pattern variation among ethnic groups, but once again pointed out that the similarities are in patterns only, not in the details used for identification at Level 2 and Level 3.)

At that point the defense attorney gave up, announced “No further questions,” and I was excused.

However, I was curious whether the defense attorney had known of my involvement in the McKie case so later that day I phoned the prosecutor’s office and ask who the defense attorney had been. I then phoned the defense attorney and we had a good visit. He had read a very brief summary of the McKie case in some defense attorneys’ publication, but had not known I had been involved. His whole line of questioning had been intended to find something that he could use to show I did not stay current with the literature in the field of fingerprint identification. He acknowledged that he was unable to chip away at me in any of his questions, but when we said good bye, he commented, “Well, anyway, we sure put on a good show for the jury, didn’t we?”

The defense attorney did not specifically say so, but I believe he was following Judge Pollak’s second ruling in the Llera-Plaza case. If you recall, in that ruling Judge Pollak said he would allow the FBI fingerprint examiners to testify because they were well trained and experienced and therefore qualified to offer their opinions in court. The original scope of Daubert was intended by the US Supreme Court to prove the validity of the science and methodology used by the examiner, but Judge Pollak extended Daubert to also consider the training and experience of the examiner.

Had I been uninformed on the controversy in the UK, had I not been able to discuss embryological formation of friction ridges, had I not known anything about ethnic variations, the defense attorney would have impeached me for not staying current in my field. I was fully confident with all of my answers and went into so much detail that the defense attorney was thoroughly defeated in his strategy. But I wonder how many examiners in the US could have answered those three lines of questioning in detail?

When I got into this business, we didn’t have cars and had to walk uphill both ways through the snow and burning sun just to get to court. No, wait – wrong story. When I got into this business, we were never called on to go into much detail on permanence or uniqueness. We never had to discuss methodology. And there were no controversies other than “How many points does it take?” Testimony was much simpler then.

Today, a fingerprint witness has to know the scientific basis for friction ridge identification and be able to explain the methodology in detail. The fingerprint witness had better be knowledgeable about current literature, because the defense attorney is. The fingerprint witness must go to court every time prepared for an exhaustive cross-examination along Daubert lines. And the fingerprint witness had better look cool, confident, and knowledgeable if he or she is to prevail.

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Pat Wertheim will be teaching a 40-hour class titled “Ridgeology, Daubert, and Testimony” next November in Tucson, Arizona. Seats in the class are still available. For information, email him at foridents@aol.com or phone 520-237-2188 anytime.

To discuss this week's Detail, log on to the CLPEX.com message board and discuss your ideas: (http://www.clpex.com/phpBB/viewforum.php?f=2)

And as usual, the onin.com forum (http://onin.com/fp/wwwbd/) is also available for more formal latent print-related discussions.

For discussions with an international flair, check out Dave Charlton's forum at: http://charlton97.proboards12.com/index.cgi

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FUNNY FINGERPRINT FINDS

The FFF folder is empty, so keep an eye out while searching the net!

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Until next Monday morning, don't work too hard or too little.

Have a GREAT week!