UPDATES ON CLPEX.com

Updated the Fingerprint Interest Group web page with FIG # 33 and 34 (the update of 33 did not occur as planned last week)

Inserted KEPT #8 - Court Cases - What Should Be Known: Discuss this topic on CLPEX.com - a discussion has been created for KEPT.

Updated the Detail Archives
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we looked at recent information on the commercialization of fingerprint nanotechnology.

Steve Ostrowski brings us a summary and links regarding the New Hampshire Supreme Court's appeal of State v. Langill.
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New Hampshire Supreme Court Hears Arguments in Langill Appeal?
Steve Ostrowski

On February 13, 2008, the New Hampshire Supreme Court heard oral arguments in an appeal of the case of State v. Richard Langill. These arguments originate from a pair of lower court rulings excluding fingerprint evidence from a 2004 burglary case.

In 2006, Judge Patricia Coffey of the Rockingham County Superior Court presided over a two day admissibility hearing. In January of 2007 she ruled that the fingerprint evidence would be excluded from trial and upheld that decision a few months later following a Motion to Reconsider filed by the Rockingham County Attorney’s Office.

Attorney Ann Rice, an appeals specialist with the NH Attorney General’s Office, argued for the State. The original Daubert hearing defense attorney, Richard Samdperil, argued on behalf of Langill. The session consisted of each attorney having 15 minutes to present and argue their side of the case. Each attorney made a brief opening remark and then accepted questions from the panel of five justices. Debate between the parties lasted the majority of the designated time until each attorney ended their respective session with a succinct closing argument.

The State went first as Attorney Rice described in her opening remark how the lower court exceeded its role of gatekeeper and assumed the role of jury when determining the admissibility of fingerprint evidence in the case at hand. She described how Judge Coffey’s requirements for the contemporaneous written documentation of the cognitive process went above and beyond the currently established and generally accepted protocols and procedures throughout the field of fingerprint identification.

The panel began their questioning by inquiring about any established national standards regarding note taking. They also wanted to know if a third party could have come in and reached the same conclusions with the level of documentation that was present in the case file. Additionally, they queried if any other courts required this level of note taking. Rice fielded these questions well and the panel seemed satisfied with her answers.

The Justices dissected the lower court records and noted that Judge Coffey made three rulings. One, she ruled the examiner to be qualified, which was a good ruling based on law. Two, she ruled the science to be reliable, which was also a good ruling of law. Three, she ruled that because the written case notes were unsatisfactory, there was no blind verification, and she did not allow the expert’s testimony to further describe the methodology followed, she found the evidence to be inadmissible. This third ruling is not a good ruling based on law as this is a credibility issue to be addressed during cross-examination; not an admissibility issue.

A common theme throughout the exchange was whether a perceived lack of sufficient note taking by the lower court should have been a prong of admissibility. Although the notes may have been incomplete in Judge Coffey’s opinion, the testimony of the expert should have been able to fill in any perceived deficiencies. The examiner testified that she followed the laboratory protocols and national standards set forth by ASCLD-LAB. Essentially Coffey did not believe the qualified expert’s testimony and wanted written documentation above and beyond the established requirements to satiate herself. Not believing or giving enough weight to the testimony of an expert witness is a credibility issue and not an admissibility issue. It is not for the judge to decide if they think the witness is credible, but rather it is the responsibility of the jury.

A connection was also made that other variables such as the specific aspects of the application of the ACE-V methodology and blind verification are also functions of credibility and should be challenged on cross examination as opposed to being excluded from trial.

Rice ended the State’s argument by reiterating that the lower court erred in requiring more than the generally acceptable practices of the field and laboratory established protocols with regard to note taking in order to pass the threshold test of admissibility.

Attorney Samdperil opened by expressing that the gatekeeping role was applied in a proper fashion because the lower court was able to determine that the methodology applied in the case at hand was done so unreliably. He stated that the lack of proper contemporaneous written notes and blind verification does not allow the court to determine if the test was done correctly.

Samdperil argued that there is no way to challenge testimony of an expert with the absence of written notes. When asked by Justice Hicks what more he wanted to see in the notes, Samdperil described an articulation of the application of the methodology coupled by what the examiner was seeing and the corresponding values assigned to those details. The panel then retorted that his request required the recording of the cognitive process. Samdperil later described a scenario of having the answers for the New York Times crossword puzzle and then filling it out. The answers would be correct but the methodology would be flawed. The panel responded by stating that this goes towards credibility and not admissibility of the evidence.

The panel again acknowledged that the lower court made two good rulings of law in finding the expert to be qualified and the science to be reliable. The lower court’s third ruling concerning the lack of suitable contemporaneous notes on the mental process and absence of blind verification was unreliable as a matter of law.

Ultimately it was determined that specific standards regarding note taking have to be recorded somewhere for various judges in different courtrooms to read and make a ruling on. If these written standards do not exist, then a judge cannot make a ruling of law to this regard. Beyond a suggestion, recommendation or guideline, if there is no national or written standard, then it cannot be interpreted. Guidelines are not required standards.

Essentially it comes down to the distinction of being a measure of reliability. A question was posed if whether more concise contemporaneous written notes and blind verification would deem the evidence to be reliable or more reliable. Does the absence of these notes and verification render the method unreliable? Basically it is not an argument of reliable vs. unreliable, but rather reliable vs. more reliable.

Chief Justice Broderick presented a good point when he asked Attorney Samdperil if the FBI would admit that all of the fingerprint identifications prior to the Brandon Mayfield case were dubious due to the fact that they were not practicing the same methodology as they are now concerning blind verification for single latent cases. Samdperil agreed that they would most likely not admit that.

I am surmising that the court will return it’s ruling in a few months. It looks promising that the panel will overturn Judge Coffey’s ruling concerning the inadmissibility of fingerprint evidence, but this case has already proven that anything can happen. We will keep you posted.

For your viewing and/or listening pleasure, I have included links to the oral arguments in the Langill appeal. Please follow one of these links and listen for yourself as there are a lot of good discussions presented that I did not comment on.


Audio:
http://theweeklydetail.c.topica.com/maakbrPabFehia9mUhJb/
(http://www.courts.nh.gov/pastsessions/February08/20070300a.asx)

Video:
http://theweeklydetail.c.topica.com/maakbrPabFehja9mUhJb/
(http://www.courts.nh.gov/pastsessions/February08/20070300va.asx)


Written by:

Stephen H. Ostrowski, MSFS, CLPE
Criminalist II
New Hampshire State Police Forensic Laboratory

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KEPT - Keeping Examiners Prepared for Testimony - #8
Court Cases - What Should Be Known
by Michele Triplett, King County Sheriff's Office

Disclaimer:  The intent of this is to provide thought provoking discussion.  No claims of accuracy exist. 

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