EVIDENCE EXAMINATION OF FOOTWEAR APPLIED TO THEtreadforensics.com › images › admissibility ›...
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DAUBERT FACTORS APPLIED TO THE EXAMINATION OF FOOTWEAR EVIDENCE Presented by Sandy Wiersema IAI Meeting, St. Louis, MO, August 2004
Transcript of EVIDENCE EXAMINATION OF FOOTWEAR APPLIED TO THEtreadforensics.com › images › admissibility ›...
DAUBERT FACTORS
APPLIED TO THE EXAMINATION OF FOOTWEAR
EVIDENCEPresented by Sandy Wiersema
IAI Meeting, St. Louis, MO, August 2004
DAUBERT
●A Supreme Court decision that created a gate keeping role for trial judges as to the admissibility of scientific expert testimony
●Kumho is a subsequent decision that ordered trial judges to also apply Daubert to experience-based expert testimony
●Therefore, Daubert applies whether your discipline is scientific or technical
DAUBERT FACTORS
●What is the basic theory & has it been tested?
●Are there standards controlling the technique?
●Has the theory or technique been subjected to peer review & publication?
●What is the known or potential error rate?
●Is there general acceptance of the theory?
BASIC THEORY
●Shoe is capable of leaving an impression
●This impression can be compared to the original source
●As shoes wear, features change and these changes may be reflected in the impression
●Given sufficient clarity and accidental characteristics, a shoe may be identified to an impression
BASIC THEORY
●Shoe is capable of leaving an impression
IMPRESSIONS
BASIC THEORY
●This impression can be compared to the original source
DIFFERENT DESIGNS
SAME DESIGN
BASIC THEORY
●As shoes wear, features change and these changes may be reflected in the impression
WEAR
BASIC THEORY
●Given sufficient clarity and individual identifying characteristics, a shoe may be positively identified to an impression
IDENTIFICATION
BASIC THEORY
●Given sufficient clarity and individual identifying characteristics, a shoe may be positively identified to an impression
DEFINITION
●Clarity is the ability to record characteristics accurately in a specific medium○How do you define sufficient clarity?
DEFECTS ON A SHOE
DEFECTS ON AN INKED IMPRESSION
DEFECTS ON AN ELECTROSTATIC LIFT
DEFECTS IN A BLOODY IMPRESSION
BASIC THEORY
●Given sufficient clarity and individual identifying characteristics, a shoe may be positively identified to an impression
DEFINITION
●Identifying or accidental characteristics are those that randomly occur on the shoe outsole, i.e. wear, cuts, imbedded stones, etc.○How many identifying characteristics do
you need to make a positive identification?
IDENTIFICATION
MULTIPLECHARACTERISTICS
IDENTIFICATION WITH SINGLE CHARACTERISTIC
HAS THE THEORY BEEN TESTED?
●On an individual case by case basis●Several studies have been reported in
the literature●Expert critics want to see proof of
“statistically significant” results●FBI lab is currently conducting two
studies to address this concern
STANDARDS
●A test impression is made from the shoe●Test impression is used to aid in comparing
the following four areas○ General design (class characteristic)○ Physical size & shape (class characteristics)○ General condition/wear (class/identifying
characteristics)○ Random cuts, defects, etc. (identifying
characteristics)
QUESTIONED IMPRESSION
SHOE
TEST IMPRESSION
COMPARISON
WHY NOT LET THE JURY DO THE COMPARISON?
●Why is this a problem?●They don’t know where to look to
determine if an impression was made by another shoe.○Mold differences, stippling differences,
wear differences
COMPARISON
DIFFERENT STIPPLING
SAME SIZE & DESIGN
THREE DIFFERENT MOLDS
STANDARDS
●These exams are conducted the same way in the US and in 35-40 foreign countries
●The methods have been published in text books and in numerous technical articles
●ENFSI is the European organization setting standards for forensic examinations
●ASCLD accredited laboratories must maintain specific protocols and meet specific criteria for method validation
PEER REVIEW/PUBLICATION
●Presentations at Forensic Meetings○American Academy of Forensic Sciences○ International Association for Identification○Regional Forensic Meetings (CAC, MAAFS,
MAFS, NEAFS, SAFS, SWAFS, Regional IAI)
○European Shoeprint/Toolmark Association○ENFSI
PEER REVIEW/PUBLICATION
●Footwear Certification program is operated under the auspices of the International Association for Identification
●ASCLD accredited labs - many/all footwear cases are peer reviewed
PEER REVIEW/PUBLICATION
●JOURNALS○Journal of Forensic Sciences○Science and Justice○Journal of Forensic Identification○ Information Bulletin for Shoeprint/Toolmark
Examiners○ International Journal of Forensic Sciences○Canadian Journal of Forensic Sciences
ERROR RATE
●There are no known or potential error rates in the methodology
●Any error that occurs is due to the lack of experience of a particular examiner
●Error rate requires a test repeatedly performed using the same controlled conditions - not applicable to most of the Forensic Sciences
ERROR RATE
●There is no legal requirement that opinion testimony of experts is admissible only if they are able to state their opinions with a quantifiable degree of certainty
ERROR RATE
●Let the court know if your cases are peer reviewed
●Let the court know if you participate in proficiency testing
●Let the court know that the evidence is available for another expert to examine
GENERAL ACCEPTANCE
●1786 - footwear identification was first accepted in the Richardson case in Scotland
●1930’s - footwear evidence was accepted in the US courts
●Footwear evidence is routinely accepted in courts in the US, Canada and Europe
DAUBERT DECISIONS
●US v Shawn S. Gilreath, No. 1:96-CR-472, Clayton County Courthouse, Eleventh Circuit, Jonesboro, GA - Daubert hearing 1998 - footwear & questioned documents accepted
DAUBERT DECISIONS
●US v Clinton Earl John Ross, II, Crim. No. 99-70, US Court of Appeals for the Eighth Circuit No 00-1318/3598 filed: August 29, 2001 - footwear & tire evidence accepted
DAUBERT DECISIONS
●US v Anthony DeWayne Allen, Cause No. 1:01-CR-80, US District Court, Seventh Circuit, Northern District of Indiana, Fort Wayne Division, June 10, 2002 - Daubert hearing - footwear evidence accepted. Supplemental Daubert held June 19, 2002 - ruled original examiner was qualified to testify to footwear results.
DAUBERT DECISIONS
●Philadelphia, PA, Third Circuit, February 2003, Daubert hearing - footwear evidence accepted - opinion has not been published
DAUBERT DECISIONS
●State of Indiana v Nelson Marks, Superior Court of Marion County, Cause No. 49G060209MR235795, August 2003, 702 Hearing – footwear evidence accepted – opinion not published
DAUBERT DECISIONS
●US v Michael A. Mahone, US District Court, District of Maine, CR-03-93-B-W, order regarding motions in limine, August 6, 2004 – footwear impression testimony is admissible under the standards set forth both in Rule 702 and Daubert
