EVERY FINGERPRINT EXAMINER may be called on to testify about the identification or nonidentification of a fingerprint. This process, while sometimes daunting, may be undertaken as a professional through practice and persistence. Like anything else in life, the inexperienced examiner may be intimidated initially by the setting of the courtroom and all of the court attaché. As one becomes more experienced and comfortable, the process of presenting a case in court becomes more manageable. As a witness, the fingerprint examiner will be called on to testify as an expert. The judge will grant expert status based on the knowledge, training, and experience of the fingerprint examiner. The following are guidelines that the examiner may practice and use to present a case.

This article appeared in the November-December 2020 issue of Evidence Technology Magazine.
You can view that full issue here.

This article is an excerpt from the forthcoming 2nd Edition
of Fingerprints: Processing, Analysis, and Understanding

During an investigation/comparison the fingerprint examiner should always bear in mind that a case may end up in court. Having that in mind, examiners should constantly attend trainings, conferences, and conduct research to prepare themselves for that eventuality. There are three distinct phases of the court process one should consider: preparation, presentation, and review.

Preparation Of The Exhibit
In preparing for court, an examiner will need to gather all evidence in the case to present to the prosecutor, the jury (if needed), and to the court in a professional and non-biased manner. However, the preparation begins through the education and training phase prior to comparing fingerprints for testimony.

As a fingerprint examiner, one must receive basic, modern, and advanced fingerprint training to become a credible witness. For example, having basic knowledge on fingerprint patterns, knowing the unique characteristics that may be found within a fingerprint, and the ACE-V methodology will be of great advantage during testimony (Figure 1). In the long run, having such credentials will also assist the examiner in qualifying as an expert witness.

Figure 1. Identifying the characteristics within the fingerprint.

Another aspect of the preparation phase includes preparing the evidence for court. A fingerprint examiner should bring the physical evidence, or comparison cards, and results to court. In cases where an examiner needs to explain the process of comparison to the jury, visual aids may be useful in explaining to the lay witnesses.

Keep in mind that the chain of custody and integrity of the evidence must be maintained. Visual aids may include fingerprint lift cards, comparison enlargements, ten print cards, and photographs. Be sure that the enlargements and photographs are clear and free from distortion in the ridge details of the fingerprints. Additionally, one may need to generate a brief report that includes the procedures taken to process, analyze, and compare fingerprint evidence. If a report is generated, it must entail important dates, times, and case numbers. Check the report, proofread, and ensure that it is free from any errors prior to presenting in court.

Courtroom Etiquette
Appearance is another key aspect in preparing for court. It is imperative to understand that the role of a fingerprint examiner may determine the conviction or innocence of an individual. Therefore, one must dress in a professional yet unbiassed manner. Consider the following attire when preparing for courtroom testimony:

• Business suit
• Dark-colored clothing
• Appropriate fit
• Light jewelry
• No sunglasses
• Properly groomed hair

Another facet to the preparation phase is for the examiner to prepare to testify as an expert witness in the lifting, comparison, and identification of latent and known fingerprints. Although the inexperienced examiner may testify as a lay witness, it will be only a matter of time before the witness is called upon to give expert testimony. Let us first define an expert. By law, an expert is someone who possesses knowledge or skills above or beyond that of a layperson. A more usable or definitive definition would be:

One who, by a combination of knowledge, training, and experience, has reached a high level of proficiency in a specific field or endeavor, and who has been so recognized by the court as an expert.

Fewer restrictions are placed on the expert witness. An expert witness may render an opinion while a lay witness may not. The expert witness is also perceived to be of a higher caliber or carrying more weight than lay witnesses.

In order for a fingerprint examiner to qualify as an expert witness, he or she must undergo the process called voir dire, or the questioning of the individual’s qualifications. The voir dire is a series of questions that are asked of the witness to establish his or her credentials as an expert. This process can also be referred to as the direct examination of the expert witness. At the end of the examination, the judge will determine if the witness may testify as an expert in the field of fingerprints.

Courtroom Testimony
After the preparation phase—which includes the pre-trial conference or deposition—is completed, the respective parties (defense, prosecutor, and witnesses) should be ready to testify in the courtroom.

The examiner may be called on to testify in a preliminary hearing, before a grand jury, or at trial. One might ask, what is the difference between a preliminary hearing, a grand jury hearing, and a trial? Why should one be concerned about the different types of proceedings?

Figure 2. Presenting exhibit before the court.

The preliminary hearing and a grand jury hearing are proceedings to establish probable cause to warrant a trial. The extent of the testimony that will be required in a preliminary hearing and before a grand jury may not be as extensive as trial testimony. The examiner who is called on to testify in any of the proceedings must be prepared to testify as an expert and a professional. Personal feelings have no place in the proceeding. The examiner must remain vigilant, neutral, and testify on the strength of the evidence. The judge or trier of fact (jury) will make the decision or verdict based on the evidence.

Presentation Of The Exhibit
Upon presenting fingerprint evidence in court, whether it be comparison results or actual fingerprint cards, the examiner must always remain neutral. The exhibit should first be admitted into evidence and presented to the judge for approval. The expert witness is then provided the opportunity to introduce the exhibit to the jury for testimonial purposes. When presenting any fingerprint evidence to the jury, it is imperative that the examiner explain in a way for the jury to comprehend. For instance, it is not typical for individuals on the jury stand to understand the daily duties or processes of a fingerprint examiner. Therefore, fingerprint terms should be explained at a basic level of understanding (Figure 3).

Figure 3. Introducing the exhibit to the jury.

Historic Case That Allowed Fingerprint Evidence In The Courtroom
This case would be the first court case that allowed fingerprint evidence into the courtroom. The fingerprints that were presented in People v. Jennings positively identified Thomas Jennings as the killer of Clarence Hiller.

On September 10, 1910, Thomas Jennings burglarized Mr. Hiller’s residence and made contact. They were involved in a physical altercation causing them to fall down the stairs. Mr. Hiller was shot twice by Thomas Jennings, who fled the scene when Mrs. Hiller screamed out. Mr. Hiller succumbed to his injuries. The residence was later processed, and fingerprints were found in an area that was freshly painted. Later that night, when Thomas Jennings was stopped and questioned, he was also found to be carrying a loaded firearm. A routine records check revealed that he was recently released from serving a sentence for burglary and was on parole. Fingerprint examiners compared the fingerprints from the scene of the murder to fingerprints that were on file for Thomas Jennings, and they made a positive identification. Jennings was later convicted for the murder of Mr. Hiller on February 1, 1911.

Review
As stated earlier, every time you testify, it should be viewed as an opportunity to improve your skills as a witness. The review facet allows for just such an opportunity.

When one completes their testimony, one should confer with other, more-experienced members of the discipline and discuss strategies. Compare notes between what you did and what the more-experienced examiner/witness has done. If possible, request a copy of the transcript for review and to share with other members of the discipline. Where possible, a member of your unit—a peer or supervisor—should also be present in court during the proceeding to conduct an evaluation of the examiner/witness testimony and court presentation. Questions you should ask:

• What can I do to better present testimony in the future?
• Were the court exhibits properly presented and understandable?
• Was my appearance appropriate and professional?
• Did I use appropriate and understandable language?
• What is it that I do not want to do in the future?

The review phase of the court process is very valuable as an educational tool. But remember, we are our own worst critics. Do not be unreasonably hard on yourself. Do not be unreasonably critical. Do not analyze the “what ifs.” You can “what if” yourself to death, figuratively speaking. Do not assume a defeatist attitude. After all, we are all human and we make mistakes. We want to minimize any mistakes to lessen the negative impact to a case.

Ultimately, if one assumes a professional posture and practices accordingly, one will not experience the shortcomings of an unprofessional, unprepared examiner/witness. Practice is the key to success. If examiners keep that thought in mind, their future will be positive. To accelerate the learning curve of testifying in court, there are many courtroom testimony courses available. The examiner/witness should, as early as possible, enroll in a courtroom testimony course. How better to become proficient than by practice and training? To borrow an adage from a colleague who appropriately describes the feeling of testifying, “There’s nothing wrong with having butterflies in your stomach, as long as they are flying in formation.”

Challenges To The Science Of Fingerprints
Legal issues challenging fingerprints as evidence have long been present within the criminal justice system. Most of the previous challenges have centered on two main issues: How were prints obtained? Have the prints been properly maintained? The age-old issues have been discussed earlier in the book as legal and scientific issues. These issues have been effectively dealt with by demonstrating that the evidence was obtained in accordance with accepted standards that are common practice within the forensic science community, and that the chain of evidence has been maintained.

After more than three-quarters of a century of using fingerprints as a form of evidence, the issue of fingerprints and the methodology associated with fingerprint identification began to be challenged. In recent years, specifically, challenges have been made to the methodology through which an identification/individualization is made. The challenges to this process have become known as Daubert challenges. Of all the Daubert challenges that have been filed (in excess of 30), none to date has been successful. That is not to say that the field of fingerprint identification is perfect. Challenges only serve to demonstrate that the integrity of the science of fingerprints remains intact and the necessity for the fingerprint practitioner to be trained, proficient, and remain vigilant is critical.

To do a complete analysis of the issues and court cases surrounding the Daubert issues in this publication is impractical. However, a quick overview to expose the beginning practitioner to the legal issues associated with Daubert is certainly in order—and this will provide the practitioner with a foundation and exposure to some of the legal issues associated with the science of fingerprints.

From a historical perspective, the first case to challenge the issues of methodology and testimony allowable by an “expert” was Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This initial case required the court to decide the admissibility of scientific expert testimony. What was established in Daubert was the standard of acceptability of testimony regarding Federal Rule of Evidence 702, specifically five issues:

1. Whether the theory or technique can be and has been tested
2. Whether the theory or technique has been subjected to peer review and publication
3. The known or potential rate of error of a particular scientific technique
4. The degree of which the technique or theory has been generally accepted in the scientific community
5. The existence and maintenance of standards controlling its operation

In a companion case, Kumho Tire Company, Ltd., et al. v. Patrick Carmichael, etc., et al. (March 23, 1999), the court held, “setting forth the trial judge’s general ‘gatekeeping’ obligation … applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Hence, the court upheld its posture of allowing expert testimony by other than scientific experts as mandated in rule 702.

Federal Rules of Evidence Rule 702
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

So, in a post-Daubert and Kumho era, the application of testimony of experts has been slightly modified. In part, the new application is as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, provided that:

1. the testimony is based on sufficient facts or data,
2. the testimony is the product of reliable principles and methods, and
3. the witness has applied the principles and methods reliably to the facts of the case.

The applicability of the Daubert standard specifically with regard to fingerprints was established in 1999 in U.S. v. Byron Mitchell.

About The Authors
Mark R. Hawthorne, now retired, was previously a professor and faculty member at the City College of San Francisco, where he started teaching in 1985 in the Administration of Justice programs and had also served as the coordinator of the forensic science program in criminal justice. In addition, was an instructor at Skyline College in San Bruno, California among other universities. Hawthorne is a retired member of the San Francisco Police Department after serving with distinction for 29 years, the last 23 as a crime scene investigator. During his career, Hawthorne processed more than 3,000 crime scenes, thousands of pieces of evidence, and has testified as an expert witness numerous times in California state courts as well as U.S. district courts. He has been an International Association for Identification Certified Latent Print Examiner as well as a Certified Senior Crime Scene Analyst.

Sharon L. Plotkin holds a Master of Science degree in Criminal Justice with a minor in Psychology from Florida International University. She received her certification through the International Association for Identification in 2006 and has been doing crime scene work for almost 20 years. She has handled thousands of cases ranging from burglaries to homicides and suspicious death cases. Plotkin has also been teaching at the college level for almost 13 years.

Bracey-Ann Douglas holds a Master of Science in Management with a Concentration in Criminal Justice Administration from St. Thomas University. She has been in the criminal justice field for the past ten years, where she obtained numerous trainings in the field of fingerprints and crime scene. She was trained at the FBI Headquarters in Clarksburg, West Virginia at the Criminal Justice Information System Section on fingerprint identification, comparison, and courtroom testimony. Douglas is currently a police officer in the Miami-Dade County Police Department, Northside District, where she handles numerous homicide cases.