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Monday, August 24, 2009

 
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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Breaking NEWz you can UzE...

by Stephanie Potter

Fla. men accused of torturing mom, son go to trial
The Associated Press 08-18-09
Even defense attorneys agree this will be a tough case to win — solid evidence, DNA, fingerprints and a co-defendant set to testify against the others. ...

Day 2 Cobbins' trial: Jury cleared from the courtroom twice
WBIR-TV 04-18-09
Once again, Crenshaw said he found fingerprints on the bags that belonged to Davidson. Sergeant Keith DeBow is a SWAT officer with the Knoxville Police ...

Fatal carjacking testimony: Police faltered in following fingerprint
Knoxville News Sentinel 08-18-09
As his shift ended the next morning, Crenshaw headed home after searching to no avail the vehicle itself for fingerprints, he told jurors. ...

Couple convicted in bank holdups
San Francisco Chronicle
(08-18) 08:00 PDT SAN MATEO -- A woman has been convicted of robbing two banks along the Peninsula after her fingerprints were found on a demand note that ...

Midtown Security Community: BURGLARY ARRESTS CLEAR MULTIPLE CASES
By Peggy Williamson  08-19-09
On Tuesday August 4 2009 Burglary investigators received information that the submitted Latent Prints were a positive print comparison with a Charles Townsend, male, 21yoa. Due to the Latent prints lifted, Burglary investigators were ...

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Updated the Detail Archives
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Last week

We heard "from the really old guy and his corner" regarding tenprint and latent print community convergence into a common community. At the IAI conference this week, the IAI passed a resolution to the effect that both disciplines use the same methodology and they are both part of the larger friction ridge examination community.

 

This week

We hear from Andre Moenssens about a recent legal ruling in the friction ridge discipline. On June 29, 2009 in the Weekly Detail # 410, we read that forensic reports are testimonial, meaning that the examiner cannot expect their report to replace them in court. This prompted some interesting discussion on the CLPEX forum regarding the details of testifying to the "V" in ACE-V. That lays the foundation for this week's Detail.

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The "No Bolstering" Rule - What is it? How to Avoid Running Afoul of it?
By Andre A. Moenssens

The “No Bolstering Rule” is a rule that prohibits the use of hearsay evidence to the effect that a non-testifying person agreed with the testifying witness about the truth of what the witness has stated during direct examination. The rule states, essentially, that a witness cannot bolster his own testimony with confirmatory statements made out-of-court by another person when the testifier has not yet been impeached.  It is an integral part of the prohibition against the evidentiary use of most hearsay evidence. 

 

The rule against the use of hearsay evidence is peculiar to adversary system jurisdictions  (United States, Canada, the United Kingdom, and other Commonwealth countries). The rule against hearsay has no direct equivalent in civil law countries. Hearsay evidence comprises those assertions or declarations of a non-testifying person which are offered to prove the truth of the testifying person’s assertions. The concept applies to lay as well as expert witnesses in both civil and criminal cases.

 

When dealing with fingerprint expert witness testimony, the “no bolstering” rule prohibits one examiner from making a statement of fact or of stating an opinion and following that up with the assertion that another, non-testifying person, agrees with that fact or opinion, or that this non-testifying person has the same view. Thus, one expert cannot state, “This is my conclusion, and Ms. X has confirmed that my conclusion is correct.” Or, “this is my opinion, and so-and-so agrees that I was right.” Or, “several other people have also seen this evidence and they all came to the same conclusion.”  Or,” everybody knows that it is so.” Or, “ten other people said the same thing.”

 

None of the above statements would be admissible if a proper objection is raised, because the “declarants”     the persons who made the out-of-court statement(s)     are not available to be cross-examined as to the assertions’ veracity, accuracy, or reliability. [See also, “Hearsay Evidence” in Wiley Encyclopedia of Forensic Science (Jamieson A and Moenssens A.A. eds.) 2009 [3] 1465 for a more extensive explanation of the hearsay rule as applied to forensic scientists.]

 

The “No Bolstering Rule” requires fingerprint examiners to also refrain from volunteering information about the outcome of a verification after having explained what each step of the ACE-V process, including the verification step, requires.

 

A few recent court decisions, have applied the “no bolstering” rule in cases wherein fingerprint examiners were asked, after they explained the various steps involved in the ACE-V process (including the requirement of a Verification), whether the “verifying examiner” agreed with the testifying examiner’s conclusion, and the examiner responds affirmatively. The same result – reversal of a conviction    is likely to occur if the testifying examiner were to volunteer such information on direct examination without being asked that question.

 

Note that it is entirely proper to explain during testimony what each step of the ACE-V process entails. Do not, however, violate the “no bolstering” rule by volunteering that the verifying examiner has reached the same conclusion. Since the verifier is not on the stand, he/she cannot be cross-examined on the correctness of that statement; the statement therefore violates the rule against using inadmissible hearsay evidence against a defendant.

 

“No Bolstering”  and the prohibition against the use of most forms of hearsay evidence has its origin in the judge’s function to insure that jurors are not misled or confused by evidence that cannot be examined or challenged, and may therefore potentially also be unreliable. In the United States, the rule is part and parcel of the constitutional right to cross-examine all witnesses. The rule against the use of hearsay evidence is somewhat archaic, and certainly very technical. What’s more, there exist a slew of exceptions to the rule against hearsay    situations where statements of non-testifying persons can nevertheless be used in evidence     but it is well understood by most legal professionals. 

 

There are a few instances where the “no bolstering” rule may gave way on redirect if the cross-examiner sought to impeach the testifying expert by allegations that he/she has recently fabricated or changed his/her opinion. This would be one case wherein the examiner may thereafter be asked whether, at the time he/she had first formulated the opinion, other examiners had agreed with it. This, again, is a technical concept that would apply only after cross-examination of the testifying expert by the defense attorney. It is a situation that comes up very seldom, and therefore less likely to cause problems for a fingerprint examiner.

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

Have a GREAT week!


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