Laboratory Reports and the Confrontation Clause: From Crawford through Bullcoming

This week has seen a lot of activity on the Supreme Court level regarding the application of the Confrontation Clause of the Sixth Amendment to laboratory reports. The Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him." It applies to both federal and, through the Due Process Clause of the Fourteenth Amendment, state trials.

But what does it mean? When can the prosecution present statements as evidence against a criminal defendant made out of court by someone not produced as a witness in the trial (or some earlier proceeding) at which the defendant can “confront” this witness?

For many years, the Court applied a reliability test to such statements. If the statements seemed reliable for some reason or other—the actual test proved rather weak—the prosecution could use them without presenting the person who said them for cross-examination. In Crawford v. Washington, 541 U.S. 36 (2004), however, the Court radically revised its view of the Amendment. Writing that “[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty,” a majority reinterpreted the Clause to mean that the prosecution cannot introduce “testimonial” statements accusing the defendant without producing the author of the statements for cross examination. Crawford marked the Court’s acceptance of an interpretation of the Clause championed by Justice Scalia in various concurring opinions.

But Justice Scalia’s opinion for the Court in Crawford offered no single definition of “testimonial.” “Typically,” the Court wrote, testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford then gave a series, in increasing generality, of “formulations of this core class of ‘testimonial’ statements.” All applied to the statements at issue in Crawford itself—a wife’s answers to police questions undermining her husband’s claim that he stabbed another man in self-defense.

Not surprisingly, the Court has been fleshing out the meaning of the pivotal term “testimonial” in one succeeding case after another. In Davis v. Washington, 547 U.S. 813 (2006), the Court held that a woman’s call to a 911 operator about an ongoing “domestic disturbance with her former boyfriend” was not testimonial. In contrast, in the companion case of Hammon v. Indiana, the Court held that another woman’s answers to police questioning—given immediately after the officers came to the couple’s home and observed evidence of recent violence but found “no emergency in progress”—were testimonial.

Two later cases address statements from laboratories undertaking examinations of evidence in criminal investigations. Although it generated a 5-4 split in the Court, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), should have been an easy case. The prosecution introduced into evidence three sworn “certificates of analysis” from the Massachusetts Department of Public Health. These affidavits contained “only the bare bones statement that '[t]he substance was found to contain: Cocaine.' At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.” The Court determined that because the “analysts' statements [were] prepared specifically for use at petitioner's trial, [they] were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.” The sworn statements were far more solemn than the wife’s statements to the police in Hammon, and unlike the victim’s statements in Davis about her former boyfriend “here jumpin’ on me again,” their sole purpose was to provide police with facts for a possible prosecution.

Bullcoming v. New Mexico, No. 09–10876 (U.S. June 23, 2011), involved a laboratory report “certifying that [Donald] Bullcoming’s blood alcohol concentration was well above the threshold for aggravated DWI.” This time, the state provided more information about the testing, and it did not rely solely on the paper report of the results of the gas chromatography. As the Court described it,

the report presented the “certificate of analyst,” . . . completed and signed by Curtis Caylor, the SLD [New Mexico Department of Health, Scientific Laboratory Division] forensic analyst assigned to test Bullcoming’s blood sample. . . . Caylor recorded that the BAC in Bullcoming’s sample was 0.21 grams per hundred milliliters . . . . Caylor also affirmed that“[t]he seal of th[e] sample was received intact and broken in the laboratory,” that “the statements in [the analyst’s block of the report] are correct,” and that he had “followed the procedures set out on the reverse of th[e] report.” . . . Those “procedures” instructed analysts, inter alia, to “retai[n] the sample container and the raw data from the analysis,” and to “not[e] any circumstance or condition which might affect the integrity of the sample or otherwise affect the validity of the analysis.” . . . Finally, in a block headed “certificate of reviewer,” the SLD examiner who reviewed Caylor’s analysis certified that Caylor was qualified to conduct the BAC test, and that the “established procedure” for handling and analyzing Bullcoming’s sample “ha[d] been followed.”

The prosecution introduced this report, over objections, as a business record (a dubious application of this exception to the hearsay rule), but “[o]n the day of trial, the State announced that it would not be calling SLD analyst Curtis Caylor as a witness because he had ‘very recently [been] put on unpaid leave’ for a reason not revealed.” Instead, it put a “surrogate” witness on the stand—“Gerasimos Razatos, an SLD scientist who had neither observed nor reviewed Caylor’s analysis,” but who was happy to testify to “the operation of the . . . machine, the results of [Bullcoming’s] BAC test, and the SLD’s established laboratory procedures.”

The Supreme Court did not buy it. A forensic laboratory’s report prepared for the police in the course of a criminal investigation, it reiterated, was testimonial. The conclusion, the Court insisted, was “inescapable.” As in Melendez-Diaz, the report’s assertions were “‘incontrovertibly . . . affirmation[s] made for the purpose of establishing or proving some fact” in a criminal proceeding.” The state’s claim that “they were simply observations of an ‘independent scientis[t]’ made ‘according to a non-adversarial public duty,’ . . . fares no better here than it did in Melendez-Diaz” because “[a] document created solely for an ‘evidentiary purpose’ . . . made in aid of a police investigation, ranks as testimonial.” That the reporting analyst did not sign a notarized affidavit was of no moment. The witnesses in Crawford and Hammond did not make sworn statements either. The analyst who was placed on unpaid leave after signing his report knew perfectly well that he was contributing to the state’s case against its suspect. As such, he constituted an accuser within the meaning of the Sixth Amendment.

Likewise, the effort to transmogrify a different analyst into the accuser failed. First, “surrogate testimony” about general procedures and instrumentation “could not convey what Caylor knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part. . . . Nor did the State assert that Razatos had any ‘independent opinion’ concerning Bullcoming’s BAC.” Second, and “[m]ore fundamentally,” the Sixth Amendment “does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.”

Although the case might seem to be a relatively straightforward application of Crawford and Melendez Diaz, only five Justices subscribed to Justice Ginsburg’s majority. The remaining four, in a opinion written by Justice Kennedy, deemed the Confrontation Clause satisfied by surrogate testimony:

Whether or not one agrees with the reasoning and the result in Melendez-Diaz, the Court today takes the new and serious misstep of extending that holding to instances like this one. Here a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court finds a confrontation violation.

Moreover, a final part of Justice Ginsburg’s opinion failed to gain even the narrow majority of the Court that subscribed to the rest of the text of the opinion. This part of the opinion, joined only by Justice Scalia, responded to demands for a forensic-science exception to the requirement of producing “the analysts who write reports that the prosecution introduces . . . even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa’” by observing that retesting is possible and that “the sky has not fallen” in jurisdictions that routinely produce the necessary analysts as witnesses.

In sum, it appears that many Justices are looking for ways to allow prosecutors to introduce laboratory reports or the information in them into evidence without ever producing the witnesses who did the analyses and wrote the reports. Justice Sotomayor made this plain in a concurring opinion emphasizing the limited scope of the case. She insisted that

First, this is not a case in which the State suggested an alternate purpose, much less an alternate primary purpose, for the BAC report. For example, the State has not claimed that the report was necessary to provide Bullcoming with medical treatment. . . .
Second, this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos conceded on cross-examination that he played no role in producing the BAC report and did not observe any portion of Curtis Caylor’s conduct of the testing. . . It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and report.
Third, this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert’s opinion based on the facts and data to be admitted). As the Court notes, . . . the State does not assert that Razatos offered an independent, expert opinion about Bullcoming’s blood alcohol concentration. . . . Here the State offered the BAC report, including Caylor’s testimonial statements, into evidence. We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.
Finally, this is not a case in which the State introduced only machine-generated results, such as a printout from a gas chromatograph. The State here introduced Caylor’s statements, which included his transcription of a blood alcohol concentration, apparently copied from a gas chromatograph printout, along with other statements about the procedures used in handling the blood sample. . . . Thus, we do not decide whether. . . a State could introduce (assuming an adequate chain of custody foundation) raw data generated by a machine in conjunction with the testimony of an expert witness.

Although Bullcoming “does not present . . . any of these factual scenarios,” five days after issuing its ruling, the Supreme Court granted a writ of certiorari to review a case that falls into her third category, at least in part. I shall describe this newest Confrontation Clause case, Williams v. Illinois when I get another spare moment. Already, there is some confusion about the issue in the case, as can be seen by comparing the description of the issue on the website of the American Academy of Forensic Sciences with the Supreme Court’s specification of the issue.

References

Bullcoming v. New Mexico, No. 09–10876 (U.S. June 23, 2011)

Bullcoming v. New Mexico, Supreme Court of the United States (SCOTUS) Blog (contains links to briefs and other materials)

David H. Kaye, David E. Bernstein & Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence (2d ed. 2011)

The Consequences of Mistakenly Acquiring a DNA Sample for a Law Enforcement Databank

Should a state be permitted to convict a rapist who is caught because his DNA is placed in a database in violation of the state's DNA databank statute? In People v. Robinson, 224 P.3d 55 (Cal. 2010), the California Supreme Court upheld the sexual assault convictions of a man whose DNA was taken by correctional officials who mistakenly thought that the state’s DNA database statute applied to the misdemeanor for which he was convicted. This search thus violated the state law but not the U.S. Constitution, which permits DNA sampling from those convicted of some (if not all) misdemeanor offenses. Because the state database law did not prescribe the exclusion of evidence at trial as a remedy, the California court could have upheld the convictions without discussing the scope of the Fourth Amendment exclusionary rule.

Yet, the Robinson court described a second ground for its action -- the "good faith" exception to the Fourth Amendment exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984). The facts of Leon were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to other forms of police reliance on facts or other information supplied by officials. Just this month, in United States v. Davis, No. 09–11328 (U.S. June 16, 2011), the Court refused to apply the exclusionary rule to a search that conformed to circuit court precedent at the time, even though the Supreme Court devised a different rule two years later. More to the point, in Herring v. United States, 555 U. S. 135 (2009), a police officer, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstanding arrest warrant. The Court held that this "attenuated negligence" did not warrant the application of the exclusionary rule.

In an essay published last month, I argue that the Robinson court exceeded the boundaries of the good-faith exception by applying it to a nonattenuated negligent mistake. The essay, "Unraveling the Exclusionary Rule: From Leon to Herring to Robinson—And Back?," 58 UCLA L. Rev. Disc. 207 (2011), is at http://uclalawreview.org/?p=1719.

Cross-posted from the Double Helix Law blog.

The Inspector General's Follow-up Report on the FBI Latent Fingerprint Unit

The Department of Justice's internal watchdog issued a 53-page report on the FBI's progress in meeting recommendations made in the wake of the infamous Mayfield misidentification. Here are the bottom lines (literally):

In conclusion, we believe that the FBI Laboratory has made significant progress in implementing many of the recommendations from our Mayfield Report. Changes to the FBI Laboratory’s procedures and training materials made in the course of this review, such as providing further guidance on the use of Level 3 detail and improving documentation of explanations for differences, represent substantial steps toward reducing the likelihood of errors. We encourage the FBI Laboratory to continue funding and conducting research aimed at validating latent fingerprint analysis and at creating objective criteria for determining sufficiency and declaring an identification. We also strongly support the efforts by the FBI and the CCU to identify the remaining capital cases in which the FBI Laboratory conducted latent fingerprint analysis before December 31, 2006, and to complete the Capital Case Review. We believe that the FBI Laboratory must continue to address these issues to avoid future errors, improve the reliability and accuracy of the latent fingerprint discipline as a whole, and ensure public confidence in the results of its examinations. We believe that full implementation of our recommendations will help the FBI Laboratory in this effort.

The new report is generally thorough, thoughtful, and informative. However, it has a few quirks.

I. Federal Courts?

A very minor but surprising mistake is the statement that "In at least two federal district court cases, however, courts have limited or excluded testimony about latent fingerprint identification based in part on the Mayfield error" (Page 20 n.22). The two cases cited are United States v. Zajac, No. 2:06-cr-00811 (D. Utah Sept. 13 and 16, 2010), and Maryland v. Rose, Case No. K06-0545, Mem. Op. at 5-9, 24-25, 28-31 (Balt. Co. Cir. Ct. Oct. 19, 2007). Obviously, a Baltimore County trial judge is not a federal district judge. As I recall, after the state court threw out the fingerprint identification in the state case, the US Attorney's Office made it into a federal case and got the U.S. District Court for the District of Maryland to write an opinion on the admissibility of the analyst's testimony. The OIG's footnote ends: "But see United States v. Rose, 672 F. Supp. 2d 723, 725-26 (D. Md. 2009) (rejecting argument that the Mayfield error called into question the reliability of the ACE-V methodology)."

So as far as I know, there is only one "federal district court case[ to] have limited or excluded testimony about latent fingerprint identification based in part on the Mayfield error." That is Zajac. This case might have led to more such rulings, but I should think that the Noblis-FBI experiment (described in earlier postings) will inhibit any such trend.

II. Linear Thinking?

The new report also states that "[u]nlike some forensic laboratories, the FBI Laboratory uses a “linear” approach to ACE-V, requiring examiners to complete and document their analysis of a latent fingerprint before viewing any known fingerprints or moving to the comparison and evaluation phases" (Page 5). The OIG adds that under new FBI operating procedures:

[E]xaminers must complete and document analysis of the latent fingerprint before looking at any known fingerprint; examiners must separately document any data relied upon during comparison or evaluation that differs from the information observed during analysis; and verifiers or blind verifiers must separately complete and document their ACE examination. The FBI Laboratory refers to this approach as “linear” ACE-V, and Unit Chiefs Soltis and Wieners stated that it eliminates circular reasoning and “cherrypicking” by requiring examiners to identify the characteristics present in a latent fingerprint during analysis before moving to the comparison phase ... .

(Page 27). In its entirety, however, the FBI's examination process is not linear -- at least not unidirectionally linear. It is "oscillatory" -- it goes back and forth. After studying an exemplar, an analyst can return to the latent print and use features not documented the first time through in making the comparison. Indeed, the examiner can go back and forth as many times as desired.

This is not to condemn what some analysts call "recurring examining." If the process is fully documented, the value of using initially undiscovered information could outweigh the risk of bias. The point is that one must view the post hoc comparisons more skeptically.

Neither is the oscillation a form of circular logic. The report defines "circular reasoning" as "the use of data from the known fingerprint to influence the characteristics observed in the latent fingerprint." (Id.) However, it is not necessarily "circular" to use a feature in an exemplar as a clue to what is present in a latent print. Thus, I am not so sure that oscillating between the prints inherently "is a form of confirmation bias or 'mindset' that can lead to unintentional false identifications." (Id.) It would seem more precise to say that the use of the data can result in confirmation bias, which can lead to error.

This does not mean that oscillation is clearly a desirable protocol. Note 28 explains that:

In the Mayfield error, for example, the original examiner encoded seven Level 2 details in the latent fingerprint before being exposed to any candidate fingerprints. After running an IAFIS search and viewing Mayfield’s fingerprint, the examiner changed his interpretation of five of these seven points. Additionally, similarities between the Madrid latent fingerprint and Mayfield’s known fingerprint led the examiner to see other similarities that were not actually present.

The question, as indicated earlier, is whether the benefit of oscillation outweighs the danger.

III. What's independent?

My final nit is the use of "independent" to describe a verification in which the verifier knows the result reached the first time around. To call this "independent," as the FBI does (p. 11), is misleading. If I solve a math after you give me the answer to help me along, my work is not independent. It is more independent that it would have been had you given me a full, written solution that I could have copied, but it is not truly independent.

Reference

U.S. Dep't of Justice, Office of the Inspector General, A Review of the FBI’s Progress in Responding to the Recommendations in the Office of the Inspector General Report on the Fingerprint Misidentification in the Brandon Mayfield Case (2011), available at http://www.justice.gov/oig/special/s1105.pdf

"Genetic Justice": The Potential and the Real

Genetic Justice [1] is a survey of the major criminal procedure issues spawned by DNA evidence. According to the book jacket, the authors "explode the myth that DNA profiling is infallible" with  "a thorough discussion," "a lucid assessment," and "an inspiring vision." One astute reviewer describes it as "the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases and should, therefore, serve as a touchstone for debates about the spread of DNA profiling." [2]

Certainly, parts of the book will inspire debate. Published by a respected academic press, the book invariably presents or reflects the positions of two advocacy groups.The ACLU is a copyright holder, and one of the authors, Tania Simoncelli, was, until recently, employed as science adviser to the group. The other author, Sheldon Krimsky, is a professor of Urban and Environmental Policy and Planning and chairman of the board of the Council for Responsible Genetics. The CRG is "a national bioethics advocacy organization based in Cambridge, Massachusetts." [3] The book should be read by all who want to see the views of these organizations on the use of DNA evidence in criminal justice.

Whether those positions are convincing is open to debate. Some of the views in Genetic Justice strike me as extreme, and the strength of the book is breadth rather than depth, subtlety, or even accuracy in legal and policy analysis. At least, that is my initial impression. Of course, I am a rather critical reader, so, as time permits, I shall post some specifics to support this assessment. Or maybe I shall change my mind as I reach the end of the book.

For the moment, I am puzzling over the assertion in Chapter 1 (p. 26) that:

Sample contamination, misinterpretations or mischaracterizations of data, and the reporting of inaccurate or misleading statistics are all sources of human error that can and have occurred in DNA cases, sometimes resulting in the wrongful conviction of an innocent person.

Clearly, all these problems can and do arise with DNA evidence. But how many times have they caused "the wrongful conviction of an innocent person"? The authors do not offer a single example--at least not in this chapter. Instead, they write about "the potential for error and abuse" as illustrated by "the infamous Houston Police Department Crime Laboratory." They quote from a report on the laboratory's dismal practices that refers to "the potential [for] a miscarriage of justice." However, the quotation mentions no actual wrongful conviction.

I have not read the full 332-page report. The source cited in Genetic Justice (www.hplabinvestigation.org) does not exist. However, the problem is merely typographical. Links to the reports that the city commissioned are at www.hpdlabinvestigation.com. A press release on the report from the law firm that undertook it stated that:

135 DNA cases analyzed by the Crime Lab prior to the closure of its historical DNA operation in December 2002. The team identified major problems in 43 -- 32% -- of these cases, including in the cases of four death row inmates, Franklin Dwayne Alix, Juan Carlos Alvarez, Gilmar Alex Guevara, and Derrick L. Jackson. With HPD's approval, the independent investigation forwarded information about each of these DNA major issue cases to the Innocence Project network that is exploring what additional steps, if any, should be taken on behalf of these defendants.

That was 2007. Franklin Dwayne Alix was executed in 2010. The other three men, as far as I can tell from web pages, remain in prison. Genetic Justice provides no reason to conclude that a wrongful conviction was established in the other 39 problem cases.

I mention these facts not to claim that DNA evidence is infallible. It is not. The putative myths that the authors labor to refute might be found in the scripts of a few television crime shows, but they already have been "exploded" in newspaper articles, television news, and scholarly writing. Neither is my intent to defend the gross mismanagement of Houston's police laboratory. However, a book that purports to offer "a thorough discussion" should present at least one example to document its assertion that errors in DNA evidence have caused the convictions of innocent people. A large number of such cases could exist, and it would be surprising if there were absolutely none. But it is important to distinguish between the potential and the real.

Thus, I hope that readers familiar with actual cases of false convictions based on DNA evidence will comment on them here. Near misses also would be of interest. A few instances of incorrect DNA identifications during  investigations have been reported in the literature.

References

1. Sheldon Krimsky & Tanya Simoncelli, Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties, New York, NY: Columbia University Press 2011.

2. Simon A. Cole, DNA Evidence, Am. Scientist, May-June 2011, at 256.

3. Council for Responsible Genetics, Genetic Discrimination: A Position Paper Presented by the Council for Responsible Genetics, 2001.

(Cross-posted to the Double Helix Law Blog.)

R. v. Smith: Court of Appeal Rebukes Latent Fingerprint Identification in Britain for Being Out of Step with Modern Forensic Science

Displaying grave dissatisfaction with police-dominated latent fingerprint identification practices in England and Wales, the Court of Appeal in R. v. Smith, [2011] EWCA Crim 1296, quashed a homicide conviction. Hilda Owen, a 71-year-old woman, was found murdered in her home. The accused murderer was a neighbor, Peter Smith. He was in financial distress and stood to benefit from her will. A police fingerprint officer with more than 21 years experience and two colleagues who “independently” verified his work testified that they were certain that “a red blood-like substance” found on a door handle was Smith's.

Initially, however, Nottinghamshire Police Officer Alan Gore had concluded that there was insufficient detail for a meaningful comparison. After he learned that Peter Smith had been charged with the murder, Mr. Gore re-examined the evidence with the aid of “a new scanning and printing machine which enabled him to run the print off and compare print to print more easily.” He “concluded that the ridge flow and 12 ridge characteristics could be identified with the fingerprint from the appellant’s left forefinger.” His report simply stated that “In forming my opinion I have considered the amount of detail, its relative position and sequence and general quality. I have no doubt that the area of friction ridge detail indicated in the photograph was made by [the appellant].” He made “no working notes” because “he did a continuous analysis and his working notes were in effect the photographs.” Two officers in the same police department verified the identification without meaningful documentation.

At trial, the three fingerprint officers testified to the identification. A defense expert testified that the latent print was useless— “that he had never seen a fingerprint officer identify a print of such poor quality.” But at the last minute, the defense choose not to have its principal expert, Catherine Tweedy, testify because the Crown planned to attack her qualifications and work in other cases. She described herself as being qualified because she had trained “in Modern Fingerprint Technology,” had “successfully completed the Advanced Latent Fingerprint Course with Metro Dade Police, Florida, USA,” and was “an active member of the International Association of Identification.” (According to the IAI's website, an “active member” of the IAI is “an individual [who is or was] actively engaged as an examiner, analyst, practitioner or supervisor in the forensic sciences.”)

The appellate court heard testimony from two retired police fingerprint examiners. They proposed that the Crown’s examiners had confused furrows with ridges and that they had ignored a part of the image that excluded the defendant as the source of the bloody print. The original examiner advanced what appeared to be a post hoc theory that the defendant had touched the door handle twice and that this explained why the defense analysts had a different interpretation of the part of the print on which he had relied for his identification.

The Court of Appeal was aghast. It observed that the police’s fingerprint “practices … differ … markedly … from modern forensic science practice in other areas of forensic science.” The court quashed the conviction and wrote that

There is plainly a need for the points that have arisen in this case to be the subject of wider examination. We have been told that an enquiry by the Rt Hon Sir Anthony Campbell into the case of HM Advocate v McKie known as the Scottish Fingerprint Enquiry has heard extensive evidence in relation to fingerprint evidence in Scotland. ... [T]here is a real need for the ACPO [Association of Chief Police Officers], the Forensic Science Regulator and the recently established Fingerprint Quality Standards Specialist Group to examine as expeditiously as possible the issues we have identified, to assess the position and to ensure that there are common quality standards enforced through a robust and accountable system.

A condensed version of the Court of Appeals opinion follows:

[2011] EWCA Crim 1296
Case No: 2009/03393/C1

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM

Royal Courts of Justice
Date: 24/05/2011
Before: LORD JUSTICE THOMAS, MR JUSTICE SWEENEY and MR JUSTICE SPENCER

Introduction

1. On 27 February 2007 Hilda Owen, a 71 year old widow, was murdered in her own home in Skegby. ...  The appellant, her next door neighbour, reported to the police the finding of her body on 1 March 2007.

2. He was at first treated as a witness [but] was subsequently charged.

3. There was circumstantial evidence against the appellant … including the making of a “will” in his favour, his involvement in her affairs, his financial difficulties and his opportunity to kill her. Apart from the pathology evidence (which is not in dispute) there were three areas of forensic evidence. The first related to the scenes of crime, the second to footwear and the third to fingerprint evidence.

4. The ... trial resulted in the conviction ... for murder. He was sentenced to life imprisonment with a minimum term of 30 years.

5. He appeals ... on one ground — the difficulties faced by the defence at trial when a decision was made not to call its fingerprint expert and the fresh fingerprint evidence now available.

6. It was accepted by the Crown that there was fresh evidence in relation to the fingerprints; we will consider that evidence first and then whether, in the light of the test in Pendleton [2002] 1 WLR 72, it affects the safety of the conviction. We will therefore first set out the evidence in relation to fingerprints before turning to consider the safety of the conviction.

I   THE FINGERPRINT EVIDENCE

7. [It] is necessary to set out very briefly the nature of fingerprint evidence and the training of fingerprint examiners in England and Wales.

The nature of fingerprint evidence

The evolution of the evidence

8. The history of fingerprint standards and evidence was set out by Rose LJ in R v Buckley (Robert John) (1999) 163 JP 561. He pointed to the accepted position that fingerprints varied from person to person and that such patterns were unique and unchanging throughout life. There were originally no standards, but it was accepted that once 12 similar ridge characteristics were identified, the match was proved beyond all doubt. In 1924, the standard was altered by the Metropolitan Police to require 16 similar characteristics, but not all police forces accepted that. In 1953, a national standard of 16 similar characteristics was adopted; the objective was to set a standard that was so high that no one would seek to challenge the evidence. There was discussion in the ensuing years as to the number that were required; in 1983 there was a conference at which it was agreed that a fingerprint identification was certain with less than 16 points of similarity; there would, however, be rare occasions on which there would be a print of crucial importance that fell below that standard, where only experts of long experience and high standing should give evidence. As a result of that conference, the Home Office and the Association of Chief Police Officers (ACPO) commissioned a study by Dr Ian Evett and Dr Williams into standards.  They concluded that there was no scientific, logical or statistical basis for the retention of a numerical standard.  As a result, further work was undertaken by ACPO and the Fingerprint Bureau within each police force.  It recommended a move to a non numerical standard.

9. That non numerical standard was adopted in 2001 by ACPO. This requires the print to be identified by a fingerprint officer (who may or may not be a fingerprint expert) and then to be checked by two others who are qualified fingerprint experts. The standard to be applied is to examine all the available detail in relation to the print such as ridge flow and ridge characteristics to see if the print can be clearly identified with a person’s fingerprint.

10. The current procedures are set out in a manual issued in 2006 by ACPO and the National Fingerprint Board which had been established in 2002. This was issued to the Fingerprint Bureau of each police force which within each police area is responsible for the examination of fingerprints. It is for each police force to establish its own quality management system. Work is currently being undertaken to develop quality standards by the Fingerprint Quality Standards Specialist Group established by the Forensic Science Regulator.

The training of fingerprint examiners

11. We were provided with a statement from Mr Michael Thompson, Head of National Fingerprint Training for the National Policing Improvement Agency which very clearly and helpfully set out the requirements for training and recognition by police forces as a fingerprint expert.

i) Prior to 1992, fingerprint experts were trained in-house by police forces; there was no standard training. The Metropolitan Police provided an advanced course which was undertaken after a minimum of 5 years in-house training. On completion of the advanced course the expert would be placed on a Register maintained by the Home Office. In 1990, a national training centre was established and in 1992 national fingerprint training was made available.  From that time until 2007, the training programme provided for a Foundation Course, an Intermediate Course and an Advanced Course. On completion of the courses and with a letter of confirmation from a Chief Constable, the expert was entered onto the Home Office Register of Police and Government Department Fingerprint Experts.

ii) Since 2007, ACPO has approved a series of courses and assessments which form the National Fingerprint Learning Programme run by the National Police Improvement Agency; on satisfactory completion and a letter of confirmation from a Chief Constable, the expert is entered onto the Home Office register. These courses take several years and very high standards are expected.

iii) Police Forces take the view that no one can be a fingerprint expert in the United Kingdom unless they have qualified through one of the above methods. Their view is supported by the position that there is no other readily available way of qualifying in the United Kingdom. Although a person who does not work for police will be accepted onto a Foundation Course, no person can continue to the higher levels unless he is an employee of a police force; experience has to be gained between the courses at a police fingerprint bureau. The reason for the stance taken is that the NPIA and ACPO take the view that unless a person works within a police fingerprint bureau, that person is unlikely to gain sufficient experience in the analysis of fingerprints; a person outside a bureau would not have sufficient opportunities to gain enough experience. If a person qualifies overseas, ACPO has agreed that that person will not be accepted for employment in a UK fingerprint bureau unless the person sits the Advanced Examination.

12. The training methods we have described are rigorous; examinations have to be taken and portfolios of work are assessed.

(2) The identification by the Nottinghamshire Fingerprint Bureau and the steps taken prior to the trial

The initial investigation by Mr Gore in March 2007

13. On 2 March 2007, about 200 fingerprints were recovered from the deceased’s home by Mr Alan Gore, a fingerprint officer employed by the Nottinghamshire Police, who had more than 21 years experience of fingerprints.  He sent them for initial screening. He had also had a finger and palm print of the appellant dated 9 March 2007; these were taken because of the number of fingerprints at the premises.  On 20 March 2007, Mr Gore examined a door handle from the deceased’s house.  It was a lever type handle; on the rear surface of the handle facing the door there was an area of a red blood-like substance. He could see that skin ridges appeared. The area was then examined by Mr Gore between 29 March 2007 and 3 April 2007. His assistant had taken numerous photographs, the first photographs being taken on 29 March 2007 under fluorescent light, others being taken after each of three acid yellow washes, a further set being taken after acid violet washes and a final set of photographs being taken after acid black washes.

14. Mr Gore examined the handle visually and the photographs in some detail.  He also examined the area using a Nikon stereo microscope at 8x magnification.  Despite the photographs and the examination under the microscope he concluded that there was insufficient detail to be able to make a meaningful comparison.  His conclusion was recorded in a single note on a one page document headed Fingerprint Bureau Internal Actions where he noted that there was insufficient detail. A report was also sent to the investigating team but it added little.

(b) The re-examination in February 2008

15. Between about 11 and 18 February 2008 (and thus after the appellant had been charged) Mr Gore re-examined the photographs; he did so because he anticipated being asked about the print he had not been able to identify. By about this time the Nottinghamshire Police had acquired a new scanning and printing machine which enabled him to run the print off and compare print to print more easily. Although he was working on other cases, he spent much of the week looking at the prints. By the end of that period, he concluded that the ridge flow and 12 ridge characteristics could be identified with the fingerprint from the appellant’s left forefinger.

16. The sole record of the week’s work is contained in the Fingerprint Bureau Internal Action Sheet … : “ident JM74 Peter Knight Smith cro 18602481C (suspect DCI O’Shea)” JM74 was the print on the handle.

17. [T]hat examination was verified by two others, ... . The note [they] made ... was the same: “Ident at 6 verified”. There were no notes or other record of their work.

18. In his evidence to us Mr Gore explained why he had re-examined the print on the door against the print of the appellant. He told us that quite often during a trial he would be asked at short notice for assistance with the prints found at the scene and, to save having to do the work in a hurry at the trial, he decided to do the work ahead of time.

19. On 19 February 2008 he prepared a three page statement. That statement did not contain any diagram setting out the 12 characteristics he had identified.  It merely stated that he had found sufficient ridge detail in agreement and none in disagreement to conclude that the print was that of the appellant. He concluded:

“In forming my opinion I have considered the amount of detail, its relative position and sequence and general quality. I have no doubt that the area of friction ridge detail indicated in the photograph was made by [the appellant].”

20. He had no working notes. His evidence was that he did a continuous analysis and his working notes were in effect the photographs.  In a statement made prior to the trial, Mr Gore explained the absence of a chart:

“Such charts have never been produced for analysis or verification purposes. This is bad practice and would have a detrimental effect on the independence of the analysis, comparison and evaluation of the mark.”

Mr Gore explained to us that if a chart had been produced by him, then the two other experts who verified his conclusion would not be able to reach their own independent conclusion.

21. ...

(c) The experts retained on behalf of the appellant

22. …

23. ...

24. Ms Tweedy, according to the qualifications and experience set out in the report she provided, said she had been employed by Keith Borer as a forensic scientist since 1995 and had specialised in the study of fingerprints.  She had a BSc in Biological Sciences and various other qualifications.  She stated she was instructed in approximately 55-65 criminal cases each year.  She added:

“I have received fingerprint training at the Police National Training Centre. I have received training in Modern Fingerprint Technology and have successfully completed the Advanced Latent Fingerprint Course with Metro Dade Police, Florida, USA.  I am an active member of the International Association of Identification.  I have extensively studied the persistence, detection and recovery of fingerprints from exhibits and scenes of crime, chemical enhancement techniques, visualisation of latent marks and the identification of individuals through transfer evidence.”

[Her] report ... complained that Mr Gore did not provide full and complete disclosure of any part of the fingerprint evidence and concluded that the print on the door did not possess 12 ridge characteristics for matching purposes.  She ended up by saying that if Mr Gore was to provide a chart or marked up enlargement then she would examine it and produce similar images detailing her findings. Another employee of Keith Borer, Mr Simon Bunter, who had worked for the North Yorkshire Police’s Fingerprint Bureau for 7½ years, had confirmed Ms Tweedy’s view.  However, as he was the confirming expert, he had not been to see the materials held by the Nottinghamshire Police Fingerprint Bureau. ...

25. [F]ollowing a request from the defence, [Mr Gore] produced a comparison chart; he did so by marking the 12 characteristics on a photograph of the print on the door handle and on a photograph of the print taken from the appellant. It was the first time he had done this in his 17 yeas of being a fingerprint expert giving evidence in court.

(3) The events at the trial

26.

27. ... Mr Bunter gave evidence to the effect that the print was of such poor quality that it could not be safely attributed to the appellant. Ms Tweedy was asked to attend to give evidence immediately after the appellant had given his evidence.

28. An issue then arose as to whether she was qualified. ...

29. Shortly before Ms Tweedy was to go into the witness box … , counsel for the Crown told counsel for the appellant that Ms Tweedy was not qualified as she claimed; other CPS areas had been critical of her; if she was called, she would be cross-examined about her shortcomings and about fundamental errors in her report.

30. The appellant’s legal team asked for time to investigate; the team were told by Keith Borer Consultants [the firm that it retained to assist it with the forensic science evidence] that there were no grounds for doubting her ability; the challenge was only because her training was American and not UK based; Keith Borer Consultants confirmed that her level of `competence had been challenged in other cases.

31. The decision was made not to call Ms Tweedy and to rely on Mr Bunter’s evidence. It was recognised that he had significantly less experience than [Mr Gore and the two verifying examiners from the same police office].  The jury had been told of the intention to call her; when the decision was made not to call her, the jury were simply told that she was no longer being called.  No reason was given.

32. ...

(e) The further expert opinion obtained on behalf of the appellant

33. ...

34. After the appellant’s conviction, further expert evidence on fingerprints was obtained:

i) Mr Peter Swann was instructed on 2 February 2009 to consider the fingerprint evidence.  He had qualified as a fingerprint officer in the traditional way … and had been in charge of the Bureau at Wakefield; he had been an adviser to the Home Office. He had retired in 1987, before the change to the identification parameters made in 2001 as we described at paragraph 9. He had over 50 years experience, but had received no on-going training, save for attending lectures and conferences on fingerprinting.  ...

ii) Mr Ford had worked as a fingerprint officer from 1965 in a large police fingerprint bureau; he retired early in 1998.  He then practised as an independent fingerprint expert. He had had no further training other than checking prints at other bureaux.

(4) The evidence given at the trial

34. Mr Gore’s evidence at the trial was that, although initially he thought the quality of the print was so poor that it was no use, he was able to see when he re-examined it … that it was the print of the middle section of a left forefinger with blood on it. It was consistent with a left hand or forefinger with blood on it over the back of the door handle and opening the door in order to exit

35. When he re-examined it ... , he examined the ridge characteristics, ridge endings and bifurcations and details including the pores.  He found 12 points where the characteristics were similar on the middle phalange of the left forefinger and no points of dissimilarity. He had no doubt about it. He did not identify these points to the jury in his examination in chief, taking the view that he would not expect them to appreciate what the similarities meant, given the poor quality of the print. It was only in his cross-examination that he was asked to identify the 12 similarities. As the photograph in the bundle prepared … was not sufficiently clear, his evidence had to be adjourned at the outset of the cross-examination so that a better bundle could be produced.  When the cross-examination resumed, he was taken through each point in the new bundle; that bundle numbered each of the points of comparison differently to the numbering sequence in the first bundle.  His cross examination was detailed, putting to Mr Gore specific criticisms of the characteristics where he said there were similarities.  Mr Gore explained that he considered that two of the points of similarity repeated themselves, as there had been a double touch ... .

36. [The two verifying examiners] gave evidence that they had independently examined afresh the print and the appellant’s fingerprint form and were sure that the print had been made by the appellant.

37. Mr Bunter’s evidence was that he had never seen a fingerprint officer identify a print of such poor quality; he agreed with Mr Gore’s original view. He considered there were only two clear ridge characteristics in the area on which Mr Gore had relied. He was then taken in his examination in chief through the detail of each of the points of comparison relied on by Mr Gore. In his cross-examination the fact he had not made the time to visit the Nottinghamshire Police Fingerprint Bureau was emphasised, as was the fact that his opinion has not been confirmed by another expert.

(5) The evidence given to this court

38. ...

39. ...

40. [T]here were three areas of conflict in the evidence: (a) ridges and furrows — what lines were the ridges and what lines were the furrows on the print or prints left on the door handle; (b) double touch — whether there had been one touch leaving a print or two touches leaving two prints; (c) clarity of the left side: whether the area to the far left was sufficiently clear so that reliance could be placed on it.

(a) Ridges and furrows

41. [T]here was a fundamental dispute between Mr Gore and Mr Swann as to what were shown on the photographs as ridges and furrows; Mr Swann’s evidence was that what Mr Gore said were ridges (red lines) were in fact furrows and what Mr Gore said were furrows (dark lines) were ridges.  In the course of Mr Swann’s cross examination, Mr Swann made clear that the dark colour were the ridges and the red lines the furrows, as the dark colour had sweat pores on them.  This difference had not emerged before.
42. We [asked] the experts to examine the handle itself. ...

43. At the second hearing Mr Gore produced images of the appellant’s prints which had been taken by “Livescan” –- a method of taking prints by scanning each person who is arrested; such prints were stored on the National Automated Finger Print Identification System (NAFIS). We were told that those who operate NAFIS do not permit digital images to be downloaded onto a disk and provided to the court to view on its screens; instead we were provided with a disk of photographs of the digital image which were shown to us on our screens and the photographs themselves.

44. Mr Gore’s evidence was that the new images of the appellant’s prints showed the incipient detail in the furrows; they were not pores on a ridge; he had also compared the Livescan images to the inked impressions where the ink would be on the ridges and they corresponded. Mr Swann agreed with the interpretation of these images of the appellant’s print.

45. However they remained in disagreement as to which were furrows and which were ridges on the image of the print on the door handle.

i) Mr Gore’s evidence to us on the second hearing was that there were pore holes that could be seen on the ridge; at the first hearing before us, it was Mr Gore’s evidence that the pores on the ridges could not be seen because blood was where the pore holes were.  He told us at the second hearing that had been a mistake and pore marks existed.

ii) Mrs Wardle [the verifying co-worker] agreed with Mr Gore, but was not pressed to explain why.

iii) Mr Ford agreed with Mr Swann; in his opinion, the dark black lines were the ridges as he could see the pores in them; he had thought that Mr Gore agreed with him.

46. It was suggested to Mr Gore that the difference did not matter, but Mr Gore regarded it as crucial, as each was identifying something different.

(ii) The double touch

47. Mr Gore’s evidence to us was that in his examination of the print on the door handle in February 2008 he had identified the fact that the person who left the print had touched the handle twice — a double touch. There was no reference to the double touch in any of Mr Gore’s statements; he told us he did not tell the police.  He reported it as one print, as he considered that the second touch was not sufficiently clear to provide any identification.  There was nothing on the photograph on which the 12 points of similarity were originally marked to identify for the jury that there had been a double touch. He told us he did not do so because neither Ms Tweedy nor Mr Bunter had suggested that the ridges shown were continuous.

48. ...

49. Although the question of a double touch had no significance in the trial, it became central to Mr Gore’s rebuttal of Mr Swann’s evidence in the hearing before us.  Mrs Wardle told us that she had not considered the double touch much at the time she made her identification, but gave evidence supporting Mr Gore’s view.

50. Mr Swann’s evidence was that:

i) There were four points of similarity (A, B, C, D) which were ridge characteristics; Mr Gore was in agreement with these as ridge characteristics. Mr Ford was adamant in saying that the characteristics were not the same.

ii) He identified six points of dissimilarity (1, 2, 3, 4, 5 ) which were on the print on the handle and were not on the appellant’s print and a further point (6) which was on the appellant’s print but not on the door handle;

51. Mr Gore’s evidence to us was [that the discrepancies listed by Mr Swann resulted from Smith’s having touched the door handle twice.]

52. Neither Mr Gore, nor Mr McShane nor Mrs Wardle had said anything at the trial about any inconsistencies being explained by a double touch; Mr Gore told us that was because he was of the view that there was a double touch and therefore no inconsistency.

53. Mr Gore advanced five reasons why he contended that there was a double touch; ...

(c) Clarity of the left side of the print

54. Mr Swann identified 10 points on the left side of the print which he said could not be seen on the appellant’s print.

55. Mr Gore and Mrs Wardle did not consider that the left side of the print or prints was sufficiently clear to be able to make a proper comparison of ridge characteristics; there was too much disturbance. Mr Gore thought that they were spurious and the area should not be relied on. Mrs Wardle explained that she had made her identification by reference to characteristics she could see in the area that was clearest; as there were enough similar characteristics in that area she could ignore the area to the left.

56....

(6) Ms Tweedy’s qualification

57. It was submitted to us on behalf of the appellant that the decision not to call Ms Tweedy was justified because she was significantly under qualified and the Crown would have been justified in challenging her professional ability; this would have adversely affected the weight attached to her evidence. ...

58. ...

59. Keith Borer Consultants also set out the quality control procedures they had in place. They explained that their approach to fingerprint evidence was different to the approach of the police Fingerprint Bureaux and followed the practice applied in other areas of forensic science.

60. We fully understand why the decision was taken not to call Ms Tweedy and the severe disadvantage that caused to the defence of the appellant. In the light of the acceptance by the Crown that this court should in all the circumstances receive the fresh evidence, it is not necessary for us to express a view on whether Ms Tweedy was qualified to give expert evidence. ...

(7) General issues relating to fingerprint evidence

61. In the light of the issue in relation to Ms Tweedy’s qualifications and the way in which the evidence was adduced at trial, we consider it important that we should identify some of the features which have become apparent to us.  None have been material to the decision we have in fact reached in this case as to the safety of the conviction, but as they are important to the way in which fingerprint evidence is adduced where the print is not clear; we set them out:

i) Most forensic science services have for some time been provided by organisations wholly independent of police forces. There are also a number of private providers of forensic science services. In contradistinction, fingerprint experts are organised in Fingerprint Bureaux which fall within the organisational structure of each police force. This may be a distinction that is justified; it may be possible for independence to be assured by strict standards of control on quality and by accountability.

ii) There is no opportunity for a person outside a police Fingerprint Bureau to become fully qualified as a fingerprint expert by training in England and Wales or for having that person’s competence recognised by the police forces.

iii) Police forces do not recognise the qualifications or competence of those who have obtained these overseas.  It is for a judge to decide whether a person is a competent expert, not the police.  Because of the course the trial took, the judge did not have to rule on whether Ms Tweedy, who obtained qualifications overseas, was a competent expert.

iv) It is essential for the proper administration of justice that there are independent persons expert in fingerprint examination; almost all who do this are retired from police Fingerprint Bureaux.  The position is in marked contrast to other forensic science disciplines.  There may be good reason for this distinction; for example the fingerprint bureau of other forces may be able to provide expert evidence for the defence.

v) No competent forensic scientist in other areas of forensic science these days would conduct an examination without keeping detailed notes of his examination and the reasons for his conclusions.  That universal practice of other forensic scientists was not followed by the Nottinghamshire Fingerprint Bureau. There may be reasons for this, but they were not explained to us.

vi) As neither the original examiner nor those who confirmed his examination made any notes of their reasons and did not identify the points of comparison contemporaneously on a chart, it was not possible to see whether their reasoning was the same. We were told that this was not done because those who made the subsequent identification should make that identification without knowing the views of those who had previously examined the print.  Although we accept that identification by two other persons who do not know the conclusions of the original examiner or the other examiner form an important safeguard, we do not understand that reasoning. There would be nothing to prevent the earlier examiners sealing their conclusions until the completion of all the examinations. We do not know whether there is any other justification for examiners not making detailed contemporaneous notes that can be the subject of transparent examination in court where the identification of the mark is in issue.

vii) The quality of the reports provided by the Nottinghamshire Fingerprint Bureau for the trial reflected standards that existed in other areas of forensic science some years ago and not the vastly improved standards expected in contemporary forensic science.

viii) The presentation of the evidence to the jury made no attempt to use modern methods of presentation.  The presentation to this court was similar; a large amount of time was wasted because of this. It was incomprehensible to us why digital images were not provided to the jury; the refusal of NAFIS (to which we have referred in paragraph 43) to permit a digital image to be supplied to the court was a further example of the lack of a contemporary approach to the presentation of evidence.  The presentation to the jury must be done in such a way that enables the jury to determine the disputed issues.

This is one of the very few cases where fingerprint evidence has been challenged at a trial since 1999 and, as far as we are aware, the first since then to come before this court on an appeal where this court has had to hear fresh evidence. It is not unsurprising that the points we have raised identify practices which differ so markedly in England and Wales from modern forensic science practice in other areas of forensic science.

62. There is plainly a need for the points that have arisen in this case to be the subject of wider examination.  We have been told that an enquiry by the Rt Hon Sir Anthony Campbell into the case of HM Advocate v McKie known as the Scottish Fingerprint Enquiry has heard extensive evidence in relation to fingerprint evidence in Scotland.  It is not for us to comment more than we have done at paragraph 61 in relation to the practices that have come to our attention in this appeal. In our view, however, there is a real need for the ACPO, the Forensic Science Regulator and the recently established Fingerprint Quality Standards Specialist Group to examine as expeditiously as possible the issues we have identified, to assess the position and to ensure that there are common quality standards enforced through a robust and accountable system.

...
We therefore quash the conviction.