news article: "McKie inquiry evidence to start"

[Big Wullie]

Atonement

You will find the Inquiry Report of Mr McLeod here:

http://www.scottish.parliament.uk/busin ... 6_24_9.pdf

Though I see he was commissioned for a second report which wasn't released:

http://www.scottish.parliament.uk/nmcen ... 06-003.htm

However, a second report commissioned from Mr MacLeod has not been released to the committee as the Executive considers that report relates to matters which are currently sub judice. The report relates to mark QI2 (the mark originally attributed to the late Marion Ross) which is central to an on-going civil action by David Asbury.

The reason being a civil action by David Asbury.

Anyone know if this has been given to the Inquiry team since Asbury's case has yet to be settled ?

There is a clear and recent precedent in Scotland for examining such decisions (Chokkhar).

Same Judge too doing this Inquiry.

I'm finding it difficult to understand why prosecutorial decision-making is not being examined in the Inquiry.

The remit is decided by our Governemt and Justice Minister hence no questions allowed about Lockerbie or any other matter will will bring them into disrepute.

Put simply, it has been capped.

Lord Campbell should be able to allow any questions he thinks fit instead of having his hads tied behind his back.

Reminds me of the powers of the Ombudsman: Although he came to conclusions, the Law Society were not duty bound to accept or implement them, They could quite simply just ignore anything the Ombudsman said or recommended.

the view seems to be that it was inappropriate to bring a prosecution on the basis of one identified print (no other evidence).

I have to agree that the prosecution should not have proceeded with only one piece of evidence, but they would have relied on at least two experts identifying Y7 and therefore that gave them the corroboration needed for Scots Law.

In this respect I have to agree with pat that they done nothing wrong but again we heard there was plenty of opportunity for the prosecutuion to seek independent reports, and this was mentioned in memos amongst themselves, yet strangely never followed up.

[Outsider]

I read somewhere in an earlier thread (can't find it now) that there is a view that the McKie prosecution should not have been brought on purely evidential considerations.

Hi Atonement,

I think you might be referring to the argument I have been making on various threads in this forum. It goes like this:

The Y7/Shirley McKie case contains a major and significant abnormality which has not, to my knowlede, received attention in any of the previous inquiries into the case. Cases that include forensic evidence almost universally start from some sort of incident. A crime is committed or something happens such as a suspicious death or fire that gives a reason to think that a crime might have been committed. The incident is the fact at the centre of the prosecution case and forensic work is commissioned to provide additional evidence in conjunction with it.

The case of H.M Advocate v McKie did not start from an incident. The disputed fingerprint was the fact at the centre of the case but there was no link to a crime or physical incident (except by inference). This is highly unusual, it might even be unique in the history of forensic evidence presented in a court of law. It is significant because the crime itself is a substantial and entirely standard factor in the total weight of evidence against someone who is suspected of being its perpetrator.

But if we proceed on the basis that the prosecutors had 100% faith in the SCRO identification, were they still wrong to proceed.

I don’t think “100% faith” is a rational basis to proceed with anything. If an item of evidence is of a type that is highly reliable this does not mean that it is infallible and, on its own, it does not mean that the suspect is probably guilty (this is a common mistake known as the “Prosecutor’s Fallacy”).

If misidentification after verification is possible, then an identification being disputed could be a reaction to a rare error. Before reaching conclusions we need a valid reason to believe that the police or prosecution proposition is a much more likely explanation for the facts than identification error. The crime normally provides this. A crime brings certainties - somebody committed it, this person has been in the location, this person is dishonest and this person has a reason to lie. The prosecution proposition for Y7 is that a police officer told lies about an act of indiscipline that is unlikely to have occurred if there was no fingerprint evidence, and if it did occur a denial would be an unlikely response.

Some time ago I did an exercise with some “back of envelope” type calculations which I hope it shows how much the context can affect the probative value of an item of forensic evidence.
http://www.stevehornsc.pwp.blueyonder.c ... tville.htm

[Atonement]

The chances of proving guilt beyond reasonable doubt to a lay jury must have been negligible once the challenge to the identification surfaced. The jury didn't need to be convinced by the defence challenge, it only needed to raise a reasonable doubt. Comment: I disagree. Most defense cases in the US lose, even with their own experts. Since the courtroom is an adversarial environment, both sides should be expected to present evidence with vigor. And just because the defense exercises that right, the jury should not infer that there is reasonable doubt unless the defense can prove there is reasonable doubt. In the case of Y-7, it was easy for me to prove the SCRO got it wrong. That was all the doubt the jury needed to come back 15 to 0 for "Not Guilty." If I hadn't been able to prove reasonable doubt, the verdict may well have come back differently.

Pat, as I understand it, fingerprint science allows no basis for disagreement between fingerprint experts. Either the crime scene mark is insufficient for comparison or it can be identified to the known print by an expert or it can be excluded as coming from the same source as the known print. As you know, fingerprint challenges are almost unknown in the UK and we lack the experience of dealing with them in the courts. Assuming that both prosecution and defence expert witnesses in the US are reputable experts, how come these challenges are made by the defence except in those (presumably very rare cases) where the prosecution experts have genuinely fallen into error? You say that most defence cases in the US lose, presumably because the prosecution have got it right, so where do the defence experts come from and how do they maintain their credibility? As I understand fingerprint science, it is not like other areas where there is room for genuine differences of opinion where the experts can thrash it out in court. I would have thought that if a reputable defence fingerprint expert challenges a fingerprint identification he must be on very firm ground (or he would not risk his credibility) and (assuming that the jury understand that there can be no room for differences of opinion) it is almost inevitable that a defence challenge will leave them in reasonable doubt.

[Atonement]

Outsider

Many thanks for your reply.

I understand the distinction you are making. In jurisprudence studies, I have heard used the distinction between a result-crime (eg homicide) and a conduct-crime (eg a police officer entering a crime scene without authorisation). All attempted crimes are conduct-crimes, by definition. I agree that it is unusual for the fact of a conduct-crime having occurred to be proved by forensic evidence on its own.

In result-crimes, the fact of the crime having occurred is (almost always) proved by different evidence from the evidence which implicates the perpetrator. But not always. For example, someone may disappear, no body is found and a person later admits to having killed the disappeared one. The same evidence (confession) proves the fact of the crime having occurred (homicide) and the identity of the perpetrator.

I'm not sure about your probability theory. In a result-crime, forensic evidence (eg a fingerprint that later turned out to be wrongly identified) could throw up a perpetrator who has a cast-iron alibi (eg he was in prison when the murder happened). Very low probability that that person was the perpetrator. In a conduct-crime, forensic evidence which later turns out to be wrong (eg a misidentified fingerprint of a police officer at a place where s/he should not have been) could well, at the time, be regarded as highly probable because that officer had worked on the inquiry and was known to have had an interest in the locus.

[Pat A. Wertheim]

Pat, as I understand it, fingerprint science allows no basis for disagreement between fingerprint experts. Either the crime scene mark is insufficient for comparison or it can be identified to the known print by an expert or it can be excluded as coming from the same source as the known print. As you know, fingerprint challenges are almost unknown in the UK and we lack the experience of dealing with them in the courts. Assuming that both prosecution and defence expert witnesses in the US are reputable experts, how come these challenges are made by the defence except in those (presumably very rare cases) where the prosecution experts have genuinely fallen into error? You say that most defence cases in the US lose, presumably because the prosecution have got it right, so where do the defence experts come from and how do they maintain their credibility? As I understand fingerprint science, it is not like other areas where there is room for genuine differences of opinion where the experts can thrash it out in court. I would have thought that if a reputable defence fingerprint expert challenges a fingerprint identification he must be on very firm ground (or he would not risk his credibility) and (assuming that the jury understand that there can be no room for differences of opinion) it is almost inevitable that a defence challenge will leave them in reasonable doubt.

The situation in the US is different from that in the UK. Here it is not uncommon for the defense to hire an expert. Most police experts are used to providing their material to defense experts. While most often the defense experts do not testify, the defense will nonetheless challenge the prosecution's evidence. When a defense expert does testify, the prosecution's expert will coach the prosecutor on how to cross examine the defense expert. I sense that this situation is uncommon in Britain.

The vast majority of cases I examine for the defense, the police got it right. And in the majority of those cases, once I have examined the evidence and explained it to the defense, they are eager to plead guilty. It is a rare occasion to find the police made a mistake or worse, fabricated the evidence. But both of those things happen -- honest mistake and outright fabrication of evidence. In the category of honest mistake, I have found mislabeled latent print lifts that came from different surfaces than presented by the police. I have also found identifications the police experts overlooked, which also usually results in a fast plea.

I advise defense attorneys at the outset that I will not help them defeat a good case, but I will discuss straightforward cross examination questions for a prosecution fingerprint expert to make them prove the case. In those cases, if the fingerprint expert knows the science, the cross examination only serves to strengthen the prosecution's case. Most often, I help the defense attorney explore "legal access" issues under which a fingerprint may have been left innocently. One case comes to mind in which a palm print on a luggage rack atop a vehicle was developed above the rear passenger side door. The police charged the defendant with a crime that included driving the car. The defendant was convicted and I was asked to review the case on appeal. The defense attorney at trial had questioned the expert extensively on how many points of identification were required (an irrelevant question) but never questioned whether a palm print on a luggage rack over the rear passenger side door implied the defendant had ever driven the car. In another case on which I was consulted, a car jacking had begun with the murder of the car's owner. The car was driven off by the killer and abandoned. A number of petty thieves pounced on the car and stripped it. Fingerprints lifted from a rear fender where a tire had been stolen were identified through a computer search to the defendant, who was then arrested for the murder. The evidence might have proved that the defendant was involved in stripping the car after the fact, but did not support the charge of murder. I never testified in those cases, but the prosecution is well aware a defense expert is advising the trial attorneys.

The most often disagreement between experts are those in which one expert says a fingerprint is an identification and the second expert says the latent print has insufficient detail on which to base a firm identification. Generally, that type of disagreement is not considered too serious, as long as it is made in good conscience. It is exceedingly rare for one expert to claim an identification and another expert to claim an exclusion, as in the McKie and Asbury cases. In the US, such a case would be expected to result in serious problems for the expert shown to be wrong.

There are those who believe the McKie and Asbury cases involved more than "honest mistake." I sincerely hope this Inquiry finds the truth and exposes any who might have been implicated in criminal activity of their own.

[Outsider]

In a conduct-crime, forensic evidence which later turns out to be wrong (eg a misidentified fingerprint of a police officer at a place where s/he should not have been) could well, at the time, be regarded as highly probable because that officer had worked on the inquiry and was known to have had an interest in the locus.

I would agree with you that it would be highly probable that the officer committed the act if there was some independent reason to believe that somebody had entered the locus who would lie about it when faced with the fingerprint evidence. In that case we would be investigating the unauthorised entry rather than just reacting to a disputed identification.

Remember that the only reason Y7 was selected for special attention out of all the millions of elimination IDs everywhere was because it was disputed. I don't think proximity to the disputed mark is enough to conclusively prove dishonesty, the subject of all elimination IDs will have a connection to the location of the mark, and unless fingerprints are infallible an erroneous elimination ID WILL occur at some time somewhere. Because the suspect has disputed the ID there has to be a reason for the suspect to be lying. In normal cases that reason is usually the crime and it nearly always is evidenced independently from the identification evidence. In your disapperance example there is the independent evidence that the victim has gone missing. In the McKie case everything stems from the ID. Without the ID there is no reason to believe that anything wrong or suspicious or unusual happened.

My understanding is that after a forensic result has been disputed the likelihood of it being erroneous is linked (inversely) to the likelihood that the suspect is lying. If it is a good ID the suspect is lying, if it is a bad ID the suspect is telling the truth. This must be assessed on a case-by-case basis by considering the relative likelihood of the different explanations for the facts (it is wrong to assume that the indentified person is guilty in every case just because fingerprints are reliable).

Generally speaking I think we can say that fingerprints are very reliable and a verified identification is very unlikely to be wrong, but error is possible. Even if we didn’t know of any previous cases of fingerprint misidentification this would not mean that such a thing has not happened and can never happen.

The alternative explanation for Y7 is that a police officer told lies about an act of indiscipline that is unlikely to have occurred if there was no fingerprint evidence, and if it did occur a denial would be an unlikely response. I don’t know of any previous cases where it has been proved that a police officer has committed perjury over a disciplinary matter but this does not mean that such a thing has not happened and can never happen. I think a police officer who has disobeyed an order and is told that a verified 16-point fingerprint identification shows it would be very unlikely to lie about it (especially if they thought that fingerprint evidence was infallible as Shirley McKie did at the time).

Imagine going to the locus of a murder tomorrow, point to a police officer at random and ask yourself what is the likelihood that this officer has entered the secured and guarded crime scene against orders, and will lie about it if told of a verified fingerprint ID and will repeat the lie under oath in court, given that there is no reason to imagine that this officer or anybody else has entered the crime scene against proper procedures. It is this likelihood (the "prior" likelihood, before the fingerprint is taken into consideration) that has to be compared with the general likelihood of fingerprint error.

So even if SCRO fingerprint identifications were believed to be highly reliable it is questionable whether best estimates of the likelihoods of the two explanations for the facts of this case are sufficiently certain and out of balance to safely form an opinion about Shirley McKie’s honesty, based on these facts. I don’t think there was any time when a rational evaluation of the evidence would lead to a confident belief that Shirley McKie deposited Y7.

[Atonement]

Thanks for that very helpful reply Pat.

Sometimes there are challenges here to fingerprint evidence on the basis that there is no criminative inference to be drawn from where the print was found. But I've never heard of that being done by the defence calling their own expert. It's usually done by just cross-examining the prosecution scenes of crime person on possible innocent interpretations. I'm relieved that challenges of the McKie-type are rare in the US as clearly they are very bad for the reputation of fingerprint science.

Do you find that prosecution attorneys in the US know much about fingerprint science? Here, I suspect that most know next to nothing. I can only imagine what it would be like to try to prove a challenged identification based on the non-numeric standard. Do you just give free rein to the expert in the trial and hope that s/he can justify the identification and get it across to the jury? Or do you try to help him along? Here, there is a tradition of the prosecution not "coaching" its witnesses, which may not be so strong over there.

[Atonement]

Outsider, I do see the force of your argument in the McKie circumstances, and no doubt in lots of other sets of circumstances which you could imagine (or which might have arisen in real-life). Realistically, though, I don't think prosecution decisions could ever be reached on those sorts of considerations, compelling though they may be. I doubt first of all if prosecutors are clever enough to follow through reasoning like that ! Also, experience shows that the most strange circumstances can arise which are nevertheless true (the "you couldn't make it up" type situation). I doubt any prosecutor could explain to an aggrieved victim why proceedings weren't being taken on your model with any hope of getting out of the room alive.

[Daktari]

Perhaps I can help;
It is the first principle of UK law that an accused is innocent until proven guilty.
(Although Big Wullie protests that he was innocent after being proven guilty)
The prosecution, i.e. the Crown, must prove guilt beyond reasonable doubt.
In Shirley's trial the Defence introduced doubt, therefore a Not Guilty verdict was returned.
The Courts don't always get it right.
Had the Jury known the whole facts of course the verdict would have been different.

[Pat A. Wertheim]

It is the first principle of UK law that an accused is innocent until proven guilty. . . . The prosecution, i.e. the Crown, must prove guilt beyond reasonable doubt.

This assumes, of course, that the police and the prosecution would only submit proper evidence before the court. Do you deny that sometimes less than proper evidence is presented?

The Courts don't always get it right. Had the Jury known the whole facts of course the verdict would have been different.

You are, of course, referring to the case of William Beck ("Big Wullie"). For once, then, we agree.

[Big Wullie]

Had the Jury known the whole facts of course the verdict would have been different.

Are we talking about the following:

Graham
Geddes
Foley
Bruce (None can identify Y7 to the required 16 points needed then for court)
McKay
McLeod
Sheppard
Pat Werthein
Arie Zeelenberg
Honest Mistake McConnell.
Rudrud

No Daktari had the Crown known about all the inconsistencies even within SCRO, Edinburgh and Dundee and so on there would never have been a jury listening to Shirley McKie giving evidence as she wouldn't have been Charged in the first place.

Neither would David Asbury had the truth been known.

Please Daktari stop talking Mince.

Here is one statement from Graham:

A. My examination was never -- I never went to 16 points. All my examinations are to my satisfaction. Whether or
not there's 16 characters there, as I pointed out I've not got the facility to put them either on a comparator and I can't go making small dots for each.

Sounds like a very Competent Examiner eh ?
considering he was being asked on a 16 point standard his answer is appalling to say the least.

It is simply the case, he couldn't go to them, because they simply are Non Existent

[Atonement]

Perhaps I can help;
It is the first principle of UK law that an accused is innocent until proven guilty.
(Although Big Wullie protests that he was innocent after being proven guilty)
The prosecution, i.e. the Crown, must prove guilt beyond reasonable doubt.
In Shirley's trial the Defence introduced doubt, therefore a Not Guilty verdict was returned.
The Courts don't always get it right.
Had the Jury known the whole facts of course the verdict would have been different.

Daktari, you are of course absolutely right about the burden of proof being on the prosecution to a standard of beyond reasonable doubt. That of course does not require proof to mathematical certainty or to a standard beyond ALL doubt, which would never be achievable in the affairs of mankind (as juries are always told in Scotland). So I suppose we will always have some innocent people wrongfully convicted. That's not being complacent, just realistic. The only way of preventing that would be to prosecute no-one at all by abandoning the the system of criminal justice. Alternatively, we could try an inquisitorial system.

I suppose what we should all be aiming to do is to reduce the possibility of the conviction of the innocent as far as we possibly can (for example, by ensuring that all forensic evidence presented to the court is of the best quality) while doing everything possible to convict the guilty. Not easy and I suppose the ultimate challenge for any system of criminal justice.

[Atonement]

Big Wullie

Thank you very much for posting link to the McLeod report which I will read.

As a relative newcomer to this debate, I was wondering if anyone has read the Gilchrist report (available on the Fingerprint Inquiry website). It seems to me that the author of that report (a non scientist) has fallen into error in believing that a difference in opinion as between a positive identification and a positive exclusion is acceptable as being just that, a difference of opinion. From what I can understand that position is simply not tenable. I have sympathy (as a lay person) with Mr Gilchrist, being faced with different opinions as to Y7.

[Outsider]

Hi Atonement,

Realistically, though, I don't think prosecution decisions could ever be reached on those sorts of considerations, compelling though they may be. I doubt first of all if prosecutors are clever enough to follow through reasoning like that !

You may be right but I am hoping that you are wrong. The rational evaluation of evidence is an essential core skill of many jobs in the justice system. If we don’t expect criminal justice professionals to get it right, why should we expect untrained jury members to do any better.

Also, experience shows that the most strange circumstances can arise which are nevertheless true (the "you couldn't make it up" type situation).

Yes, strange things happen. Criminals do unlikely things while committing crimes and an innocent person can appear to be guilty because of some rare chance event. Surely it is not too much to expect trained professionals to avoid a few simple but unintuitive pitfalls that often trap the unwary. One of these is “transposing the conditional”, and it is particularly relevant to evidence from experts. Here is my explanation:
http://www.stevehornsc.pwp.blueyonder.c ... posing.htm

I doubt any prosecutor could explain to an aggrieved victim why proceedings weren't being taken on your model with any hope of getting out of the room alive.

If a prosecutor churns somebody like Shirley McKie through the justice system simply because they dispute a forensic result, and there is no other reason to imagine that any wrongdoing occurred, then there is no victim.

[Daktari]

Daktari, you are of course absolutely right about the burden of proof being on the prosecution to a standard of beyond reasonable doubt. That of course does not require proof to mathematical certainty or to a standard beyond ALL doubt, which would never be achievable in the affairs of mankind (as juries are always told in Scotland).

Quite, but the idea is that we are tried by our peers.
The implied expectation being that sometimes we will get it wrong.
After all, we are only human and capable of making errors.
Very few, but some, of my peers are perfectly capable of making a decision on the basis of mathematical certainty.
Other Courts take the view that the balance of probabilty is the benchmark.