Shoeprints in Indiana: Confronting a "Skilled Witness" with the PCAST Report

Last week, in Hughes v. State, 1/ the Indiana Court of Appeals wrote an opinion on the admissibility of shoeprint evidence and a defense attempt to present part of the 2016 PCAST report on feature-matching evidence. Mark Adrian Hughes was convicted for breaking into two newly constructed homes and stealing the appliances in them. "Sean Matusko, a forensic scientist with the ISP laboratory's latent-print unit" 2/ testified "that shoeprints found at both crime scenes were made by Hughes's shoes." The trial court overruled defendant's objection to this testimony and barred him from introducing into evidence a part of the PCAST report and from cross-examining Matusko about the content of the report. It reasoned "that Matusko was a "skilled witness" but not an expert one (preventing cross-examination), and that the report was hearsay (preventing its use as evidence).

The unpublished court of appeals opinion, penned by Judge Robert R. Altice, Jr., reversed defendant's convictions, but not because of these rulings. The appellate court determined that the prosecutor improperly introduced evidence of earlier, similar crimes. In remanding the case for a new trial, the court of appeals also discussed the shoeprint rulings. Its analysis is puzzling. The court wrote that

Hughes challenges the trial court's treatment of the State's shoeprint examiner, Matusko, as a skilled witness. Here, Matusko did not simply testify based on his personal experience ... . Rather, ... Matusko identified himself as a forensic scientist assigned to the latent print identification unit of the Indiana State Police, set out his academic background, detailed his training with regard to shoeprint identification, and explained in detail the process he used to identify shoeprints at both crime scenes as being made by Hughes's shoes. [O]ur Supreme Court has indicated that it is not inclined to consider all testimony relating to shoeprint identification to be opinion testimony governed by Evid. R. 702. In light of such precedent and our standard of review, we cannot say that the trial court abused its discretion in admitting Matusko's testimony under Evid. R. 701.

It is inconceivable that a witness who represents himself as a scientist applying a process with which lay jurors are unfamiliar and thereby deducing that a specific pair of shoes left the impressions is not testifying as an expert under Rule 702. He was not there, and he did not see what happened. If he knows anything about the source of the shoprints, it is because of he possesses special knowledge and skill beyond the ken or ordinary witnesses. Indiana Rule of Evidence 702(a) governs all witnesses with "specialized knowledge" who rely on their unusual "knowledge, skill, experience, training, or education [to] help the trier of fact to understand the evidence or to determine a fact in issue." Rule 701, on the other hand, governs opinions from "lay witnesses." It limits them to inferences that would be difficult or tedious to present as more primitive statements of the details the witness perceived. 3/ The division these rules create reflects an ancient distinction in the common law between ordinary fact witnesses -- the Rule 701 category -- and expert witnesses -- the Rule 702 group.

To be sure, a witness sometimes can testify in both capacities. A physician can be an ordinary fact witness in part -- "I saw that the patient was having trouble breathing" -- and a skilled witness in part -- "My diagnosis was pneumonia." But the latter opinion must satisfy Rule 702 to be admissible, and the doctor is subject to cross-examination to suggest that his or her diagnosis is unfounded. If a medical journal states that the diagnosis is not warranted without additional symptoms, the doctor can be asked about that as long as "the publication is established as a reliable authority" under Rule 803(18)(c), for "learned treatises."

Similarly, Matusko could testify -- as an ordinary fact witness under Rule 701 -- that the shoes he was asked to compare to the shoeprints were "Nike Air Jordan athletic shoes with a Jumpman logo molded into the soles." But Rule 701 would not let him speak as a "skilled witness" giving an opinion as to origin of the footprint based on his special skill as a shoeprint examiner. That task always has been reserved for expert witnesses. 4/

Now there might be a reason to present an expert (who does not appear as a "scientist") as merely a "skilled" witness. Indiana Rule of Evidence 702(b) codifies the rule of heightened scrutiny for scientific expert testimony articulated by the U.S. Supreme Court for the federal courts in Merrell Daubert v. Merrell Dow Pharmaceuticals. 5/ Like Daubert, Indiana Rule 702 specifies that "[e]xpert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles."

Whether Matsuko's source attribution can pass that bar is doubtful. At least, the scientists and engineers on the President's Council of Advisors doubted it. They concluded that identifying a particular shoe as the source of a print has yet to be scientifically validated. Because "[t]he entire process—from choice of features to include (and ignore) and the determination of rarity—relies entirely on an examiner’s subjective judgment," PCAST wanted to see studies that tested the performance of criminalists with impressions from the same shoes and from different shoes. Because no such studies exist, PCAST reported that

there are no appropriate empirical studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks (sometimes called “randomly acquired characteristics"). Such conclusions are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.

The last sentence, if correct, means that the shoeprint testimony cannot be introduced against Hughes on retrial -- not if the witness claims to be acting as a scientist applying a scientific procedure. Furthermore, even if the police criminalist distances himself from scientific titles and airs, the court must decide whether footwear identification is reliable enough to qualify as a different form of expert testimony. The absence of scientific validation will not be determinative, but it is a relevant factor.

Let's assume, though, that the trial court decides that a highly "de-scientized" version of Mr. Matusko's opinion is admissible under Rule 702. Can he be impeached with a scientific report? The Indiana Court of Appeals thought so. A footnote states that

As set out above, Hughes sought but was denied the opportunity to cross-examine Matusko with findings set out in the PCAST publication concerning reliability of shoeprint identification. Although we did not reach the merits of the admissibility of the PCAST publication, cross-examination regarding the findings therein was permissible regardless of whether Matusko was an expert or a skilled witness.

If correct, this conclusion -- that a criminalist can be impeached by confronting him with the PCAST report -- would be a boon to defendants across the nation. Without the trouble and expense of calling an expert witness, defense counsel can wave the devastating critique in front of the witness (and the jury). But the rule on introducing "learned treatises" requires proof that the material is authoritative before it can be used for impeachment. 6/ This limitation makes sense because, unlike impeachment by self-contradiction, the out-of-court statement -- what the President's advisors had to say -- has value only to the extent that it is true. Thus, the document is hearsay.

Nevertheless, even without an expert to establish that PCAST is a reliable authority, the report could be admissible over a hearsay objection. It is, after all, a government report. The public records exception to the rule against hearsay extends to "factual findings from a legally authorized investigation," 7/ as long as "neither the source of information nor other circumstances indicate a lack of trustworthiness." 8/ Law enforcement groups have loudly proclaimed that this particular report is not trustworthy, but much of the criticism is more reflexive than reasoned. Very little of it focuses on footwear analysis. 9/

NOTES

1. No. 18A-CR-1007, 2019 WL 2094045 (Ind. Ct. App. May 14, 2019) (unreported, available at https://www.in.gov/judiciary/opinions/pdf/05141901rra.pdf).
2. The witness is featured in an educational state police YouTube video.
3. Indiana Rule of Evidence 701 applies to "Opinion Testimony by Lay Witnesses." It provides that "If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; and (b) helpful to a clear understanding of the witness's testimony or to a determination of a fact in issue."
4. Indeed, in Buchman v. State, 59 Ind. 1, 26 Am.Rep. 75 (Ind. 1877), the Indiana Supreme Court held that a physician could not be compelled to testify to a professional opinion without special compensation. Its opinion used the words "skilled witness" and "expert" as synonyms.
5. 509 U.S. 579 (1993).
6. David H. Kaye, David Bernstein & Jennifer L. Mnookin, The New Wigmore on Evidence: Expert Evidence ch. 5 (2d ed. 2011).
7. Ind. R. Evid. 803(8)(A)(i)(c).
8. Ind. R. Evid. 803(8)(A)(ii).
9. The Department of Justice's more thoughtful disagreements with the report's general approach to ascertaining scientific validity are presented in Ted Robert Hunt, Scientific Validity and Error Rates: A Short Response to the PCAST Report, 86 Fordham L. Rev. Online 24 (2018). After the initial frosty reception of its report from prosecutors, police, and forensic practitioners, PCAST requested input from the forensic-science community for a second time. It then issued an addendum to its report. With regard to shoeprints, this document stated that

       In its report, PCAST considered feature-comparison methods for associating a shoeprint with a specific shoe based on randomly acquired characteristics (as opposed to with a class of shoes based on class characteristics). PCAST found no empirical studies whatsoever that establish the scientific validity or reliability of the method.
       The President of the International Association for Identification (IAI), Harold Ruslander, responded to PCAST’s request for further input. He kindly organized a very helpful telephonic meeting with IAI member Lesley Hammer. (Hammer has conducted some of the leading research in the field—including a 2013 paper, cited by PCAST, that studied whether footwear examiners reach similar conclusions when they are presented with evidence in which the identifying features have already been identified.)
       Hammer confirmed that no empirical studies have been published to date that test the ability of examiners to reach correct conclusions about the source of shoeprints based on randomly acquired characteristics. Encouragingly, however, she noted that the first such empirical study is currently being undertaken at the West Virginia University. When completed and published, this study should provide the first actual empirical evidence concerning the validity of footwear examination. The types of samples and comparisons used in the study will define the bounds within which the method can be considered reliable.

   An Addendum to the PCAST Report on Forensic Science in Criminal Courts, Jan. 2017, at 5-6.

Index to comments and cases on the PCAST report