Breaking NEWz you can UzE...
compiled by Jon Stimac
Fingerprints as ID - Good, Bad, Ugly? –
REGISTER, UK - April
19, 2004 ...the author of "Are
Fingerprints Really Infallible" attempts to answer his
Game's Afoot in the Fight Against Crime –
THE SCOTSMAN, UK - April 23, 2004
...a lecturer in podiatry has devised
a way of working out a suspect’s weight and height through their
Expert Leaves Imprint on Crime – HAMPTON
ROADS DAILY PRESS
- April 23, 2004
...in 27 years with police, the master
of identification has helped solve hundreds of cases...
Old Prints Solve 1999 Case –
NO. BRUNSWICK SENTINEL, NJ
- April 22, 2004
...a set of fingerprints of a security
guard applicant helped solve a five-year-old case…
Last week, there was a glitch in the
Topica sending process, and I'm not sure the Detail was even published to the
entire list. I also realized later in the week that I forgot to publish
the updates to the site. It's all OK... it was the first glitch in quite a
Craig Coppock brought us a great paper on what a
fingerprint identification means. If you didn't get to read it, make sure
you check out the Detail Archives to read his article. This week we look
at an excellent ruling out of the Ninth Circuit Appellate Court on Daubert
issues. Although the case revolved around questioned documents, the
well-structured ruling could have related directly to fingerprints.
Last week, I attempted to publish the results of
the T-shirt slogan contest! The top three slogans were:
"I was CSI before CSI was cool"
"I didn't see what you did, but I know who you are"
(Fingerprint with vodka bottle in the core)
I'll have "I was CIS before CSI was cool" printed up on t-shirts within the next
couple of months. GREAT JOB Tracy Saur for contributing the winning slogan!!
Tracy will be getting two free t-shirts this year. She can either give one
to her trusty office companion (and Smiley Czar) or she can auction it off on
Ebay. I think I'll send hers a week early so she has a jump on the action.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
No. 02-30375 Plaintiff-Appellee,
D.C. No. v. CR-01-00310-RSL
MICHAEL STEFAN PRIME,
Appeal from the United States District Court for the Western District of
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted February 4, 2004—Seattle, Washington
Filed April 16, 2004 Before: Stephen S. Trott, Richard A. Paez, and Marsha S.
Berzon, Circuit Judges. Opinion by Judge Trott
Anna M. Tolin, Siderius Lonergan & Martin, Seattle, Washington, for the
Michael T. Sennott, Siderius Lonergan & Martin, Seattle, Washington, for the
Bruce F. Miyake, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
TROTT, Circuit Judge:
Michael Prime (“Prime”) was charged with, and convicted of, one count of
conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371; one count of
conspiracy to manufacture counterfeit securities, in violation of 18 U.S.C. §
371; and three counts of possessing, manufacturing, and uttering counterfeit
securities, in violation of 18 U.S.C. § 513(a). Prime raises four issues on
appeal: 1) whether the district court properly denied his motion for a Franks
hearing;1 2) whether the court
abused its discretion in allowing the testimony of an expert handwriting
analyst; 3) whether the court abused its discretion in not allowing Prime to
substitute counsel; and 4) whether the jury’s potential exposure to extrinsic
evidence was grounds for a new trial. We have jurisdiction under 28 U.S.C. §
1291, and we affirm all of the district court’s orders and decisions.
Between April and June 2001, Prime, along with three coconspirators, David
Hiestand (“Hiestand”), Juan Ore-Lovera, and Jeffrey Hardy, sold non-existent
items on eBay, purchased items using counterfeit money orders created by the
group, sold pirated computer software, and stole credit card numbers from
software purchasers. To facilitate this operation, Prime and his cohorts used a
credit card encoder to input the stolen data on their own credit cards, set up
post office boxes under false names, manufactured false identifications, and
used a filter bank account to hide proceeds of the crimes. At trial, numerous
victims testified as to the details surrounding how they had been defrauded by
Prime’s various scams. In addition, co-conspirators Hiestand and Hardy both
extensively testified as to the details of the conspiracy, implicating Prime in
all of the crimes charged. The prosecution also elicited the expert opinion of
Kathleen Storer (“Storer”), a forensic document examiner with the Secret
Service. She testified that Prime was the author of as many as thirty-eight
incriminating exhibits, including envelopes, postal forms, money orders, Post-it
notes, express mail labels and postal box applications. Prime took the stand in
his own defense and claimed that despite all of the evidence linking him to the
various scams, including admissions that his fingerprints were on several items
linked to the crimes, he was simply attempting to engage in legal
entrepreneurial ventures. Prime also confirmed that he had previously been
convicted of first and second degree theft, two counts of possession of stolen
property in the second degree, and forgery. The jury found Prime guilty on all
Prime moved for a new trial based on the improper submission of extrinsic
evidence to the jury. The district court denied the motion, and this appeal
ADMISSIBILITY OF EXPERT TESTIMONY
Prime moved in limine to exclude Storer’s expert testimony. The court held a
Daubert hearing where both sides were allowed to offer voluminous
materials and expert testimony regarding the reliability of the proposed
testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
After careful consideration, the court denied the motion, see United States
v. Prime, 220 F. Supp. 2d 1203 (W.D. Wash. 2002), and Storer testified that,
in her opinion, Prime’s handwriting appeared on counterfeit money orders and
other incriminating documents. On appeal, Prime contends that the admission of
expert testimony regarding handwriting analysis was unreliable under Daubert,
and thus the court abused its discretion by allowing Storer to testify.
 In Daubert, the Supreme Court set forth the guiding principle
that “under [Federal Rule of Evidence 702]2
the trial judge must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. In order
to assist the trial courts with this task, the Court suggested a flexible,
factor-based approach to analyzing the reliability of expert testimony. Id.
at 593-95. Although not an exclusive list, these factors include: 1) whether
a method can or has been tested; 2) the known or potential rate of error; 3)
whether the methods have been subjected to peer review; 4) whether there are
standards controlling the technique’s operation; and 5) the general acceptance
of the method within the relevant community. Id. at 593-94.
 Kumho Tire Co. v. Carmichael resolved any post-Daubert
uncertainty that the trial judge’s responsibility to keep unreliable expert
testimony from the jury applies not only to “scientific” testimony, but to all
expert testimony. 526 U.S. 137, 148 (1999). As a result, this “basic gatekeeping
obligation” applies with equal force in cases, such as this one, where
“non-scientific” experts wish to relate specialized observations derived from
knowledge and experience that is foreign to most jurors. Id. Kumho Tire
also makes it clear that “the trial judge must have considerable leeway in
deciding in a particular case how to go about determining whether particular
expert testimony is reliable,” as well as the ultimate determination of whether
the proposed expert testimony is reliable. Id. at 152. Accordingly, we
review the district court’s decision to admit or deny expert testimony for abuse
of discretion. Id. In accordance with Kumho Tire, the broad
discretion and flexibility given to trial judges to determine how and to what
degree these factors should be used to evaluate the reliability of expert
testimony dictate a case-by-case review rather than a general pronouncement that
in this Circuit handwriting analysis is reliable. As the Supreme Court
concluded, we can neither rule out, nor rule in, for all cases and for all time
the applicability of the factors mentioned in Daubert, nor can we now do
so for subsets of cases categorized by category of expert or by kind of
evidence. Too much depends upon the particular circumstances of the particular
case at issue. Id. at 150; see also United States v. Hankey, 203
F.3d 1160, 1168 (9th Cir. 2000) (quoting Skidmore v. Precision Printing and
Packaging, Inc., 188 F.3d 606, 618 (5th Cir. 1999) (“Whether Daubert’s
suggested indicia of reliability apply to any given testimony depends on the
nature of the issue at hand, the witness’s particular expertise, and the subject
of the testimony. It is a fact-specific inquiry.”) (internal citations
In this case, Storer was given 112 pages of writing known to be Prime’s, 114
pages of Hiestand’s, and 14 pages of Hardy’s. She was then asked whether the
handwriting on 76 documents associated with the alleged conspiracy, such as
envelopes, postal forms, money orders, Post-it notes, express mail labels and
postal box applications, belonged to any of the co-conspirators.3
Storer “identified” Prime’s handwriting on 45 of the documents.
Following the Daubert hearing, the district court issued a brief order
concluding that the proposed forensic document examination testimony was
reliable. After the conclusion of the trial, the district court issued a more
detailed Order Regarding Defendant’s Motion in Limine, which thoroughly and
specifically analyzed the reliability of Storer’s testimony with respect to each
of the Daubert factors. See Prime, 220 F. Supp. 2d 1203.
1. Whether the theory or technique can be or has been tested
Handwriting analysis is performed by comparing a known sample of handwriting
to the document in question to determine if they were written by the same
person. The government and Storer provided the court with ample support for the
proposition that an individual’s handwriting is so rarely identical that expert
handwriting analysis can reliably gauge the likelihood that the same individual
wrote two samples. The most significant support came from Professor Sargur N.
Srihari of the Center of Excellence for Document Analysis and Recognition at the
State University of New York at Buffalo, who testified that the result of his
published research was that “handwriting is individualistic.” With respect to
this case in particular, the court noted that Storer’s training credentials in
the Secret Service as well as her certification by the American Board of
Forensic Document Examiners were “impeccable.” The court also believed that
Storer’s analysis in this case was reliable given the “extensive” 112 pages
containing Prime’s known handwriting.
2. Whether the technique has been subject to peer review and publication
The court cited to numerous journals where articles in this area subject
handwriting analysis to peer review by not only handwriting experts, but others
in the forensic science community. Additionally, the Kam study, see infra,
which evaluated the reliability of the technique employed by Storer of using
known writing samples to determine who drafted a document of unknown authorship,
was both published and subjected to peer review. The court also noted that the
Secret Service has instituted a system of internal peer review whereby each
document reviewed is subject to a second, independent examination.
3. The known or potential rate of error
In concluding that the type of handwriting analysis Storer was asked to
perform had an acceptable rate of error, the court relied on studies conducted
by Professor Moshe Kam of the Electrical and Computer Engineering Department at
Drexel University. Professor Kam’s studies demonstrated that expert handwriting
analysts tend to be quite accurate at the specific task Storer was asked to
perform — determining whether the author of a known writing sample is also the
author of a questioned writing sample. When the two samples were in fact written
by the same person, professional handwriting analysts correctly arrived at that
conclusion 87% of the time. On the other hand when the samples were written by
different people, handwriting analysts erroneously associated them no more than
6.5% of the time. While Kam’s study demonstrates some degree of error,
handwriting analysis need not be flawless in order to be admissible. Rather, the
Court had in mind a flexible inquiry focused “solely on principles and
methodology, not on the conclusions that they generate.” Daubert, 509
U.S. at 595. As long as the process is generally reliable, any potential error
can be brought to the attention of the jury through cross-examination and the
testimony of other experts.
4. The existence and maintenance of standards controlling the technique’s
The court recognized that although this area has not been completely
standardized, it is moving in the right direction. The Secret Service laboratory
where Storer works has maintained its accreditation with the American Society of
Crime Laboratory Directors since 1998, based on an external proficiency test.
Furthermore, the standard nine-point scale used to express the degree to which
the examiner believes the handwriting samples match was established under the
auspices of the American Society for Testing and Materials (“ASTM”). The court
reasonably concluded that any lack of standardization is not in and of itself a
bar to admissibility in court.
5. General acceptance
The court recognized the broad acceptance of handwriting analysis and
specifically its use by such law enforcement agencies as the CIA, FBI, and the
United States Postal Inspection Service.
 Given the comprehensive inquiry into Storer’s proffered testimony, we
cannot say that the district court abused its discretion in admitting the expert
handwriting analysis testimony. The district court’s thorough and careful
application of the Daubert factors was consistent with all six circuits
that have addressed the admissibility of handwriting expert testimony, and
determined that it can satisfy the reliability threshold. See United States
v. Crisp, 324 F.3d 261, 269-70 (4th Cir. 2003); United States v. Mooney,
315 F.3d 54, 63 (1st Cir. 2002); United States v. Jolivet, 224 F.3d 902,
906 (8th Cir. 2000); United States v. Paul, 175 F.3d 906, 911 (11th Cir.
1999); United States v. Jones, 107 F.3d 1147, 1161 (6th Cir. 1997);
United States v. Velasquez, 64 F.3d 844, 850-52 (3d Cir. 1995).
1In order to receive a Franks hearing, the
defendant must make a nonconclusory and “ ‘substantial preliminary showing’ that
the affidavit contained actual falsity, and that the falsity either was
deliberate or resulted from reckless disregard for the truth.” United States
v. Chesher, 678 F.2d 1353, 1360 (9th Cir. 1982) (citing Franks v.
Delaware, 438 U.S. 154, 171 (1978)). There is no evidence that the
immaterial inaccuracies contained in the affidavit were either deliberate or
made with reckless disregard for the truth, and thus this issue on appeal is
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise . . .” FED.
R. EVID. 702.
3Prime has not
raised as an issue, and we have no reason to believe, that the questioned
writing samples were of insufficient length to support a valid analysis.
To discuss this Detail,
message board is always open: (http://www.clpex.com/phpBB/viewforum.php?f=2)
More formal latent print discussions are available at
FUNNY FINGERPRINT FIND
"Cursor Mania" website www.cursormania.com
under the subject "people" you can find a tab called “body parts”. There you can
find a cursor made from a fingerprint. If clicked on it your cursor changes in a
van den Nieuwendijk,
(From CLPEX webguru: I did not verify the
security of the cursormania website, nor did I install the software on my
computer to do this... please don't take this posting as an endorsement of the
cursormania website by the webguru or CLPEX.)
When you need to correct the boss
Your boss has implemented a policy that's causing unforeseen problems in the
department. You feel you must point it out, but you don't know how.
Challenging superiors is always risky, but if you deliver your advice the right
way, your boss will value you as a trusted member of the team. Use
these tips for telling your boss how things really are:
Make sure you're right. It takes time to determine whether a new
initiative is working. Organizational changes don't occur without bumps
and glitches. Make sure you've given the new policy a chance before you
Ask for permission. Before launching into the discussion, ask the
boss if it's OK to proceed. People want some warning before hearing
criticism. The timing might not be right. The boss could be occupied
with other issues. If you don't get permission, back off and try another
Offer evidence. If all you have to offer is complaints, don't bother.
Think through the specific objectives you want to accomplish by talking to your
boss. Stay focused on your goals and provide supporting data to prove your
point. Often, you're closer to a problem than the boss is, and you may
have information the boss lacks.
Listen carefully. Don't do all the talking. Engage the boss
in a dialogue about the issue that concerns you. There could be reasons
for the initiative that you haven't been told about. By listening, you'll
not only show your concern for the company's well-being, you'll build your
boss's trust. You might also gain insights into the company's future
Back off if the boss draws the line. If your boss remains
unconvinced, give it up. Make sure your exit is gracious and professional.
Thank the boss for letting you share your views and say that you respect the
-Adapted from "How Do You Tell the Boss He's Wrong?"
by Joanna L. Krotz, via Communication Briefings,
March, 2004, 800.722.9221, briefings.com.
UPDATES ON CLPEX.com
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Until next Monday morning, don't work too hard or too little.
Have a GREAT week!