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Monday, October 13, 2003

BREAKING NEWz you can UzE...
compiled by Jon Stimac


Former Detective Claims £750,000 Over 'False Fingerprint Evidence' -THE SCOTSMAN, SCOTLAND - Oct. 10, 2003 ...inquiry concluded there was criminal conduct by certain staff at the Scottish Criminal Records Office (SCRO)...

Thumbs Up to National ID Cards- GLOBE & MAIL, CANADA - Oct. 9, 2003 "People will happily let governments fingerprint them for a national ID system -- if the cards make themselves invaluable..."

Fingerprints Link Man To Boy's Death - NBC13-TV, AL - Oct.8, 2003 ...witnesses testified that fingerprints and faked court documents link the man to the slaying...

Art Sleuth Hires Mountie to Help Solve Painting Mystery - OTTAWA CITIZEN, CANADA - Oct. 7, 2003 ...expert says print found on the canvas belongs to the legendary Jackson Pollock...junk-shop buy could be worth millions...
 


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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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.

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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 good science.

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!!!

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

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FUNNY FINGERPRINT FINDS

Submitted by Marcus Montooth
Forensic Identification Unit
Indiana State Police
10-6-03
from http://www.ahajokes.com/crt033.html



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UPDATES on CLPEX.com this week...

Updated the Newzroom

Updated the Detail Archives

Updated the Mitchell Page


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

Have a GREAT week!