Breaking NEWz you can UzE...
from wiped metal
Chemistry World, UK -
Jun 6, 2008
scientists can now find
fingerprints on metal
surfaces that have been
wiped clean. John Bond,
Charges brought for
Evergreen, WA -
Jun 4, 2008
police arrived, the
suspect had left,
years later, the
matched to Mageo, ...
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Keeping Latent Prints of No Value For Identification
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thread with KEPT #23; Evaluation - Exclusions
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Updated the Detail Archives
Charlie Parker brought us a look at the concept of keeping latent prints
deemed not of value for identification.
various author bring us replies to last week's topic.
RE: Keeping Latent Prints Of No Value For
various Forum contributors
RE: Keeping Latent Prints of No Value For Identification
by Danny Lamont on 02 Jun 2008 03:09 pm
As usual Charles Parker has raised a serious issue. One that should be
brought into the open. As with his article last week, I completely agree
with Charles because no prints should ever be tossed; especially, those that
may be of insufficient friction ridge detail for individualization. It could
come back to haunt you.
The reason I make this statement is because at this agency, no latent prints
are discarded. If they currently have no value, then they have always been
filed in the case folder. The reports in the folders are always microfilmed
sometime after the statute of limitations has taken affect, and this
includes the latent marks. In fact, David Ashbaugh brought up this very
subject back in December '05 in his class. The majority of the students
raised their hands signifying that they, too, discarded prints of no value.
I say that the way it is done at my department is a correct way to hang onto
the prints for a few years is because in the winter of '07, we obtained the
NEC AFIS System along with the Foray Imaging System. I went back through
those folders where the statute of limitations had not expired yet and
pulled the latent marks that contained some ridge detail but before, did not
contain a sufficient amount because of quantity/quality issues. Not all of
these were deemed to now contain sufficient friction ridge detail, but many
did. And after processing, these latent images were then entered into the
AFIS System. Not many, but a few hits were made on those prints.
So, for this reason, or for those that Charles brought up, latent marks
should NOT be discarded just because they now do not contain sufficient
friction ridge detail. You will never know what the future may bring.
Danny B. Lamont
Latent Print Examiner
Re: Keeping Latent Prints of No Value For Identification
by mgirard on 02 Jun 2008 06:12 pm
I too think this is a very important topic, although I'm more concerned with
analysts developing ridge detail on evidence but never getting to the point
of documentation (ie. lift, photo) because they've already determined that
they can't identify it or compare it. A report goes out saying that no
prints of value were developed. This happens on a daily basis. If a more
skilled/trained/motivated examiner without the thousands of outside
pressures reviewed that same evidence I imagine they would find something
that they would have kept in a very high percentage of those cases. I feel
that it is important to work cases with the thought that no matter how good
you think you are, someone else is always going to be better or atleast have
a better day and may get a chance to review the evidence. I would rather get
criticized for over using the term Inconclusive than for not keeping latent
evidence. Unfortunately, it is unlikely the physical evidence will ever get
reviewed but that's exactly why it takes a lot of self-checking/critiquing
to do this job.
Re: Keeping Latent Prints of No Value For Identification
by Wayne B. Reutzel on 06 Jun 2008 12:54 am
My concern has always been the defense hiring an outside expert to do an
evaulation on the latents of "no value." To simply say "I . canned
them" leaves the impression that your hiding something. I always kept an
"inactive" latent case file seperate from the active cases (of value) lifts.
I beleive defense has a right to see all the evidence that was submitted to
the LP unit.
Re: Keeping Latent Prints of No Value For Identification
by Gerald Clough on 06 Jun 2008 03:42 pm
The common civil term for general destruction of evidence is spoliation.
While in Texas, the destruction of evidence by anyone with the intent that
it become unavailable in an investigation or pending trial (the intent being
self-evident, I think) is a felony, a criminal charge against an official
person is unlikely. (Unless, of course, the destruction was truly intended
to alter the outcome of the proceeding.) Of more concern is at trial. In
many jurisdictions in a civil matter, the jury can be instructed to infer
from spoliation that the evidence would have been unfavorable to the
spoliator if it had been available. There have been exceptions to that, but
they were mostly in cases where all the experts for both parties had agreed
before destruction that the evidence had no value. The status of spoliation
in criminal cases is probably more variable across the U.S. I can imagine
that some jurisdictions adopt the civil standard. But the following is the
case law in Texas, so far as I can find:
State v. Vasquez
Tex.App.-Houston [14 Dist.],2007.
"...whether the trial court erred in suppressing the results of tests
performed on a defendant's blood sample. The trial court granted a pre-trial
motion to suppress this evidence based on the trial court's conclusion that
the State violated the Texas Constitution's Due Course of Law Clause when
the State destroyed the blood sample before trial. Contrary to the trial
court's ruling, we conclude that, in this context, the Texas Constitution's
Due Course of Law Clause provides the same protection as the United States
Constitution's Due Process Clause. Because the blood sample was not
“material, exculpatory evidence” but only “potentially useful evidence,”
under both of these constitutional provisions, the defendant/appellee had to
show that the State destroyed his blood sample in bad faith. Because there
is no evidence of bad faith, we reverse the trial court's order suppressing
the test results...Although this court by no means condones the pre-trial
destruction of evidence (exculpatory or otherwise) without prior notice to
the defendant, the law and the record evidence compel us to sustain the
State's sole issue, reverse the trial court's order granting the motion to
suppress, and remand this case to the trial court for further proceedings
consistent with this opinion."
Judge Seymore, concurring:
"The instant case arises at a time when Texas has achieved an international
reputation for its flawed crime lab processes, misrepresented results, and
lost or destroyed evidence...
"In consideration of the fact that the blood sample was destroyed long
before Vasquez's request for independent testing, the trial court cannot be
faulted for finding an absence of bad faith in the instant case. At most the
State was negligent. I would therefore not urge the court to give an adverse
inference spoliation instruction. (Advising the jury that they could infer
that the evidence would be adverse to the State. - G.C.)
"In the exercise of its discretion, however, the trial court could, instruct
the jury, when weighing the evidence in the case, to consider the State's
destruction of the blood sample and the defendant's resultant inability to
conduct his own independent test to assess the reliability of results
produced by an agency of the State. In the trial court, the prosecutor
acknowledged, as a result of the destruction of the blood sample, that
defense counsel now had “an argument to present to the jury ... to perhaps
put some doubt in someone's mind that maybe he should have been able to test
it, maybe they should doubt it or whatever.” This argument is always
available to a criminal defendant; however, I believe the trial court has an
important role in fashioning spoliation remedies calculated to encourage or
coerce the State to preserve the evidence...
"On remand, the trial court has discretion to include a spoliation
instruction. See Wise, 221 F.3d at 156 (stating district court has
discretion to admit evidence of spoliation and to instruct jury on adverse
inferences); see also Trevino, 969 S.W.2d at 959, 960 (Baker, J.,
concurring) (stating, in civil context, trial courts have broad discretion
in choosing appropriate sanction and in instructing juries). Such an
instruction might include, but should not necessarily be limited to the
following: (1) the State had a duty to preserve the blood sample; (2) the
State failed to preserve the blood sample, thereby precluding the defendant
from obtaining independent tests, and (3) when determining reliability of
the State's expert testimony, you may consider the fact that defendant was
precluded from testing the blood sample."
White v. State
Tex.App.-Houston [14 Dist.],2003.
"Affidavit from counsel for defendant charged with felony intoxication
manslaughter, stating that defendant's accident-reconstruction expert
indicated need to inspect bicycle victim was riding at time he was struck by
"In his sole point of error, appellant argues that the trial court erred in
refusing his requested instruction on the State's alleged failure to
preserve evidence. Specifically, appellant claims the State failed to
preserve as evidence the bicycle the complainant was riding when it was
struck by appellant's car. Appellant filed a pretrial request for a special
instruction as follows:
'[S]hould you believe by a preponderance of the evidence that the State of
Texas had the capacity to preserve the destroyed or non-preserved bicycle
of the complainant, then you may infer that any subsequent analysis of that
evidence would have produced a result favorable to the defendant.'...
"The duty to preserve evidence is limited to evidence that possesses an
exculpatory value that was apparent before the evidence was destroyed...At
best, appellant has shown only that preservation of the bicycle might have
been favorable, which is insufficient to satisfy the requirement of
materiality...In addition, failure to preserve potentially useful evidence
does not constitute a denial of due process unless appellant can show bad
faith on the part of the State."
1. The State has a duty to preserve evidence.
2. Failure to do so may admit inference of lack of credibility.
3. The court cannot exclude evidence unless the State's destruction or loss
that prevented defense analysis was done in bad faith, that is, knowing that
the evidence would be exculpatory. But note that, unless the trial court
excludes the evidence in pre-trial and the State has time to appeal the
ruling, the State has no recourse if the court excludes, as we saw in the
recent fingerprint exclusion case.
4. It is generally very difficult for the defense to make an affirmative
showing that the evidence would have been material.
5. The trial court may instruct the jury to consider the State's failure to
preserve evidence and the inability of the defendant to examine it.
6. The trial court has the discretion to give the jury a civil-style
spoliation instruction, which is far more harmful.
7. The defendant bears the burden of showing that the evidence was material
There is some informal opinion that how a trial judge handles destroyed
evidence depends on how offended the judge is by the destruction, which
often means how much it complicates or muddles the case at trial. This may
often depend on how well the analyst can expound on why the evidence was
thought to have no further value.
I think most of us here think of this in terms of scene lifts, and there are
obviously practical limits with other items as to what can be preserved.
It's generally not practical to preserve an entire scene in situ so that
it's available to a defense analyst, and that should be easily defensible as
far outside reasonable and usual practice. It's less clear in the case of
objects that were taken in evidence and processed. Will all that junk
gathered by enthusiastic officers be preserved after processing with
negative results? Probably not, but it's worth thinking about the nature of
the case when making decisions. Just because someone can challenge their
unavailability or try to infer something isn't necessarily cause to keep it.
But any doubts should be resolved by the prosecutor who will have to sponsor
the case in court. Wise property custodians do not make their own decisions
on destruction and return of evidence and rely on official written policy,
usually based on the statute of limitations, and court orders. And good
policies make it clear that the policies apply to all agency employees, not
just property room folks.
Keeping Examiners Prepared for Testimony - #23
Blind Verification - Expected Results
by Michele Triplett, King County
Disclaimer: The intent of
this is to provide thought provoking discussion. No claims of accuracy
Question – Exclusions:
How did you determine the latent print wasn’t made by this person?
a) The pattern type wasn’t the same as any of the exemplars from this
b) The ridge flow wasn’t the same so I didn’t need to look any further.
c) I looked for a specific target group and this target group didn’t exist
in any of the fingers of this person. Then I looked for a second target
group as a quality assurance measure.
Answers a and b: Due to the
flexibility of the skin, there are times when the ridge flow (level 1detail)
appears different but the ridge paths (level 2 details) are consistent. If
there’s a sufficient amount of level 2 details then the difference in ridge
flow may still be within tolerance for an individualization to be possible.
Excluding based on pattern type alone is risky and my result in an erroneous
Feel free to pass The Detail along to other
examiners. This is a free newsletter FOR latent print examiners, BY
latent print examiners.
With the exception of weeks such as this week, there
are no copyrights on The Detail content. As always, the website is
open for all to visit!
Answer c: This is the best answer because it follows scientific protocols of
testing a conclusion prior to arriving at a conclusion.
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