T H E
D E T A I L
Monday, October 13, 2003
BREAKING NEWz you can
compiled by Jon Stimac
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.
Last week, Michael Cherry
gave us further insight in the Detail and on the CLPEX.com chat board regarding
his opinions on the issue of digital imaging and fingerprints. This week,
Pat Wertheim brings us his report on a Daubert challenge to the science of
fingerprints in Albuquerque, New Mexico last week.
A recent felony trial in Albuquerque included in the
sentencing phase enhancement as a habitual offender. The defense filed a Daubert
motion on the grounds that inked to inked identifications had never been shown
to meet the standards of science under Daubert. As ridiculous as this sounds,
the prosecutor realized that a failure to address the issue could result in an
unfavorable decision. She contacted the FBI to request Stephen Meagher to
testify in the Daubert hearing that was scheduled. I already knew of the motion
from the Denise Herrera, the fingerprint examiner scheduled to testify to the
identification in the case. As luck would have it, the request from the
prosecutor came while Stephen and I were at SWGFAST last September. Stephen and
I had both also both been contacted about another Daubert challenge in
Anchorage. By strange circumstance, the Daubert hearing in Anchorage was
scheduled October 9 and the one in Albuquerque, October 10. Stephen commented to
me that it would be impossible for him to testify at both of them. I volunteered
to cover for him at one, stating my preference for Albuquerque because it is
only an hour’s flight from Tucson, my home.
Meanwhile, the prosecutor in Albuquerque, Connie Cohn, was trying to do
everything she could to avoid spending time and resources on a Daubert hearing
on inked to inked identifications. She offered to introduce Stephen Meagher’s
testimony from a Daubert hearing in Las Cruces a year ago if the defense would
stipulate, which they vehemently refused to do. The defense stated, however,
that a full blown Daubert hearing with outside experts was unnecessary because
all they wanted to do was question Denise and Kris Ruby (the verifier) about
Daubert issues. Recognizing a ploy, the prosecutor, with complete agreement of
Denise and Kris, insisted that if it were to be a Daubert hearing, she had the
right to bring in an outside expert to present the scientific foundation. The
defense continued to refuse to stipulate to Stephen’s transcript from Las Cruces
or to withdraw the motion, so I was flown to Albuquerque.
I arrived on October 9 and spent the afternoon with the prosecutor covering
Daubert issues and working out a list of questions for her to ask me. The list
was four pages long by the time we finished. My testimony was to include a
number of flip chart drawings (which a few of the readers may have seen in
class) and an Adobe Photoshop presentation of an identification that is built
around ACE-V and uses all three levels of identification plus flexion creases
(which Kasey prepared for me for a trial last year, and which a few of the
readers may also have seen). The prosecutor and I met again the morning of
October 10 to confirm our strategy and the questions she would ask. The hearing
was scheduled for 1:30 p.m. and at the appointed hour we were both ready to go.
Once the defender became aware that an outside expert had actually arrived to
testify, she began to backpedal more frantically in the courtroom and told the
judge that a full blown hearing and an outside expert were unnecessary. She said
all she really wanted was the right to bring up Daubert issues to the
fingerprint witnesses, Denise and Kris, on voir dir. The prosecutor objected,
saying that with a Daubert motion filed, the burden shifted to her to establish
fingerprints as reliable science and she had the right to present witnesses in a
separate hearing. The judge suggested a compromise that would allow me to be
called during voir dir of Denise or Kris if questioning took on dimensions they
were uncomfortable with. The prosecutor reminded the court that the defense
attorney had already stated her intention to appeal if the decision was
unfavorable, and reiterated her position that unless the defense withdrew the
request for a Daubert hearing, the prosecution would insist on the full blown
hearing with me presenting the case for accepting fingerprint identification as
At that point, the defense withdrew the motion and said she would simply address
the issues during voir dir anyway. The prosecutor then advised the court that it
was her intention to keep me on standby as a witness during the trial itself in
case Denise or Kris were unable to satisfactorily answer the defense’s questions
during voir dir. With that, the trial began. The rule was invoked and Kris and I
went into the hall to await our turns.
After a short while, Denise came out. No further fingerprint witnesses were
called. The defense accepted the fingerprint testimony without even going into
voir dir and instead objected to the prior conviction documents on grounds they
were not properly authenticated and certified. The Daubert challenge had
completely evaporated and gone away.
I have a sneaky suspicion that had the prosecutor not stood her ground and
insisted on a separate qualified Daubert witness in a separate hearing, the
defense would have indeed made a big issue out of it. But by playing her cards
the way she did, the prosecutor forced the defense to either run the bluff or
fold her hand. The defense folded. Chalk up another fingerprint victory over
Daubert – without even going through the hearing process and with the added
bonus of only very light questioning of one prosecution witness.
A 10-print to 10-print identification not reliable? Come on, defense – get real!
I don’t know how Anchorage was, Stephen, but the famous Albuquerque Balloon
Fiesta was at its climax. I got to see the Fancy Balloon Night Glow and the
highlight prize competition in which literally hundreds of hot air balloons
launch from over a mile away and attempt to grab prizes from high poles on the
fiesta grounds. In a rare feat, all five prizes were taken by balloonists
including the grand prize, the keys to a brand new, loaded Ford F-350. The
weather was perfect, the best in years for the Balloon Fiesta. And what a treat
it is to attend the Balloon Fiesta at a lawyer’s expense – I’ll go “testify” in
Albuquerque anytime! Thanks, Steve!!!
To discuss this Weekly Detail, log on to the CLPEX.com
Submitted by Marcus
Forensic Identification Unit
Indiana State Police
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Until next Monday morning, don't work too hard or too little.
Have a GREAT week!