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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Plaintiff, -vs-
CARLOS IVAN LLERA-PLAZA, a/k/a JOSE RODRIGUEZ, a/k/a MARTINEZ ACOSTA, WILFREDO MARTINEZ ACOSTA, a/k/a ITALIANO, and VICTOR RODRIGUEZ,
Defendants.
98-CR-00362-10 98-CR-00362-11 98-CR-00362-12
Philadelphia, PA February 26, 2002
TRANSCRIPT OF HEARING BEFORE HONORABLE J. LOUIS H. POLLAK UNITED STATES DISTRICT COURT JUDGE
APPEARANCES:
For the Government:
For the Defendants Carlos Ivan Llera-Plaza:
United States Attorney's Office By: THOMAS R. PERRICONE, ESQ.
DAVID H. RESNICOFF, ESQ. PAUL A. SARAMOUSAKIS, ESQ. ROBERT ZAUZMER, ESQ. Assistant U.S. Attorney
615 Chestnut Street, Suite 1250 Philadelphia, PA 19106-4476
By: JOSEPH MUNIZ, ESQ. 305 Broadway, Suite 200 New York, NY 10007
Sullivan & Sullivan By: TIMOTHY J. SULLIVAN, ESQ. 7305 Baltimore Avenue, Suite 301 College Park, MD 20740
Kairys & Rudovsky BY: JULES EPSTEIN, ESQ. 924 Cherry Street Suite 500 Philadelphia, PA 19107
f
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APPEARANCES (con't):
Wilfredo Martinez Acosta:
For the Defendants Victor Rodriguez:
Audio Operator:
Transcribed by:
Krasner & Restrepo By: L. FELIPE RESTREPO, ESQ.
MICHAEL GIAMPIETRO, EQ. 309 South Camac Street Philadelphia, PA 19107
By: GERALD A. STEIN, ESQ. 2727 Centre Square West 1515 Market Street Philadelphia, PA 19102-2146
By: BERNARD L. SIEGEL, ESQ. 1515 Market Street, Suite 1915 Philadelphia, PA 19102
Peggy Rosser
DIANA DOMAN TRANSCRIBING P. O. Box 129
2
Gibbsboro, Office:
New Jersey 08026-0129 (856) 435-7172
Fax: E-Mail:
(856) 435-7124 [email protected]
Proceedings recorded by electronic sound recording, transcript produced by transcription service
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I N D E X
WITNESSES:
KENNETH O. SMITH:
Direct Examination by Mr. Perricone Cross Examination by Mr. Epstein Redirect Examination by Mr. Perricone
ARGUMENT:
By Mr. Robert Epstein
ALLAN BAYLE:
Direct Examination by Mr. Restrepo Voir Dire by Mr. Saramousakis Direct Examination Continued Cross Examination by Mr. Saramousakis Examination by the Court Cross Examination by Mr. Saramousakis
STEPHEN MEAGHER:
Examination by the Court Cross Examination by Mr. Perricone Cross Examination by Mr. Restrepo
JANINE ARZIZU:
Direct Examination by Mr. Epstein Voir Dire by Mr. Zauzmer Direct Examination Continued
EXHIBITS:
R-14 R-18 R-19 R-1 R-3 R-4 R-5 R-6 R-7 R-8 R-9 R-11A
Photo of Case Print CTS Report CTS Report Charts List of Publications, Fingerprints Bibliography Excerpt from National Academy of Sciences Testimony Testimony Article Appendix Document
J&J COURT TRANSCRIBERS, INC.
7 11 22
. 27
30 33 35 65
104 120
89 99
102
124 127 136
8
3
9 9
10 23 23 23 24 24 25 25 26
Page 4
EXHIBITS:
R-11B R-20 D-1A-G 0-2 R-13 0-3
Document Excerpts from Mitchell Trial Envelopes Comparison Chart Photo of Case Print CV of Janine Arzizu
4
10. EV.
26 26
34 86 56 86
86 123 136
Page 5
1 THE COURT: Please sit down. Might I ask you, Mr.
2 Epstein and Mr. Zauzmer, to come here for a second?
3
4
5
6
7
8
9
MR. PERRICONE: Huh?
THE COURT: Mr. Perricone, if you'd like to -
(Laughter)
(At Sidebar)
MR. EPSTEIN: He was feeling left out.
THE COURT: Are we on the record? But not -
COURT CLERK: No, we can't.
5
10 THE COURT: When you, Jules, inquired whether I would
11 let the other Mr. Epstein open, my answer was no. But that
12 wasn't really a sufficient answer. What I should have said and
13 what I now say is no, unless the Government has changed its
14 view as to Mr. Epstein's participation and if the Government
15 doesn't mind having Robert Epstein conduct that opening
16 statement, that's perfectly agreeable with me. But I don't
17 propose to renew the issue if the Government has any reluctance
18 to have him do so.
19
20
21
22
MR. EPSTEIN: We have Mr. Restrepo stepping up to the
bat, so I'm not going to put them in a bad spot.
the way.
It's okay, by
MR. ZAUZMER: Can I talk to Mr. Perricone for just
23 five seconds and then we'll
24
25
THE COURT: Sure.
MR. ZAUZMER: -- put our answer on the record?
Page 6
1
2
6
THE COURT: Sure.
MR. EPSTEIN: May I discuss a personal matter with
3 you? At the lunch break, I'd like to introduce you to a very
4 important person that's here in the courtroom, my son --
5
6
7
8
9
10
11
12
THE COURT:
MR. EPSTEIN:
THE COURT:
MR. EPSTEIN:
THE COURT:
(Pause)
MR. ZAUZMER:
I heard. I heard
Thank you.
-- I'd love to meet him -
Okay.
-- that would be great.
We have no objection to Mr. Robert
Epstein's participation. It's great, if Mr. Restrepo is ready.
13 We ourselves anticipate -- we've sort of divided our argument.
14 So in fairness, we want the defense to have --
15
16
17
MR. PERRICONE: In terms of argument.
MR. ZAUZMER: Right.
MR. EPSTEIN: Okay. Thank you. I'll relay that and
18 cast us into disarray once again.
19
20
21
22
MR. PERRICONE: All part of the plane, Jules.
(Laughter)
(Conclusion of Sidebar)
THE COURT: Mr. Smith, good morning, sir. You've
23 been patiently waiting for us or impatiently waiting for us for
24 quite a while, together with everybody else in the courtroom.
25 My apologies for the delay in getting started. As you may have
Page 7
Smith - Direct 7
1 gathered, counsel had matters that they wished to discuss with
2 me. So we had a meeting about matters which counsel assured me
3 were important. So that was the reason for the delay. We will
4 be resuming now with the examination of Mr. Smith who was on
5 the witness stand yesterday, and his direct examination
6 continues. Mr. Perricone was conducting that examination and
7 will resume.
8 MR. PERRICONE: Thank you, Your Honor.
9
10
11
12
13
KENNETH O. SMITH, GOVERNMENT'S WITNESS, PREVIOUSLY SWORN
DIRECT EXAMINATION (con't)
BY MR. PERRICONE:
Q Good morning, Mr. Smith.
A Good morning.
14 Q Mr. Smith, just to correct a misimpression I left on the
15 questioning yesterday, what is the -- I think I said something
16 about the price of the test being $300. What's the price of a
17 test -- the CTS fingerprint proficiency test?
18 A This year for 2002, there are going to be two tests
19 issued. They will be $360 each. And then there will be one
20 test, because it does not contain any hard copies, it only
21 contains the computer disk -- it will be $330.
22
23
Q Okay. All right.
think -- the first test
You talked some about the first test, I
we talked about anyway, the '93 test
24 which I think you said had over 30 latent prints to examine.
25 A Yes.
Page 8
1
2
3
4
5
6
7
8
9
10
Smith - Direct
Q All right. And has there been sort of standardized since
then, a general or sort of averageable (phonetic) number of
latents that are in each of the CTS proficiency tests?
A Yes. As a matter of fact, it is controlled by regulation
8
through ASCLAD Lab Proficiency Review Committee. Their
regulations require that there be between eight and 12 latent
prints and between four and eight ink print sets in each test.
And they also have some other regulations about how the latents
have to be produced and so on.
Q All right. And for how long has that been the range of
11 the number of latents that have been submitted or that have
12 been given to the people taking the examination for the CTS
13 test?
14 A That rule went into effect during their change in '96. So
15 it affected tests from '96 on.
16
17
18
19
20
21
22
23
24
25
Q Okay. You've talked some about the quality of latent
prints in terms of the amount of information contained on the
latent prints that are typically in the CTS examinations. I
want to show you what has been previously marked as Government
Exhibit R-14, which has been previously identified as a print
from case work specifically from this case. Where would that
fit in in terms of quality and quantity of information in terms
of what people get on these CTS tests?
A This latent print has a very high clarity and quantity of
detail. And I would have to say that it has more quality and
Page 9
Smith - Direct
1 quantity of detail than the average latent on the proficiency
2
3
4
5
6
7
tests.
Q Okay. Are you saying from that there might be some with
as much or more and some with less?
A Well offhand, I can't think of any that has that much.
Q Okay.
MR. PERRICONE: Your Honor, I don't have any further
9
8 questions. I would just ask, if I have not yesterday, I'd ask
9 to move R-18 and R-19 into evidence. Those are the CTS reports
10 offered for illustrative purposes from the year 2001 tests.
11
12
13
14
15
16
17
18
19
20
21
MR. EPSTEIN: No objection, Your Honor.
THE COURT: That was 18 and 19?
MR. PERRICONE: Yes, Your Honor.
given the Court copies --
I may not have
THE COURT: I'm just not sure that I've got those.
MR. PERRICONE: Your Honor, I will -- if they're not
here, they were previously submitted to the Court with the
memorandum, three attachments, A, Band C. And those reports
are two of those attachments. So I will get copies to the
Court with exhibit stickers on them.
THE COURT: Hold on one moment and I'll ask my
22 colleague if we have them.
23
24
25
(Pause)
THE COURT: We do.
MR. PERRICONE: Thanks, Your Honor. And also I would
Page 10
Smith - Direct 10
1 move R-1 into evidence, which was the chart that was prepared,
2 part of which was· objected to, although I believe in the end
3 the objection was overruled -- the chart prepared from CTS
4 Information and then also Mr. Smith's evaluation of what might
5
6
7
8
9
10
-- mayor may not be clerical errors.
into evidence as well.
I would ask to move that
THE COURT: All right. Now was R-14 I know it was
talked about yesterday, but I'm not clear that it was handed
up.
MR. PERRICONE: It was handed up. And if it was not
11 -- it was handed up to Mr. Meagher first. If I have not asked
12 that it be introduced into evidence with Mr. Meagher, I'd ask
13 that it be introduced into evidence now. Mr. Meagher said it
14 was a print from this particular case.
15 THE COURT: I recall --
16 MR. PERRICONE: Oh, handed up in terms of handed up,
17 yes. Your Honor, I think I have copies with me -- photographic
18 copies.
19 THE COURT: But I don't need the original if you have
20 a copy of it.
21 MR. PERRICONE: I'll dig one up, Your Honor. We have
22 one. And I'll have that for you momentarily.
23
24
25 that?
THE COURT: All right.
MR. EPSTEIN: Torn, can I proceed while you look for
Page 11
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7
8
Smith - Cross
MR. PERRICONE: Sure. Here's a copy, Your Honor.
THE COURT: Thanks.
MR. EPSTEIN: May I proceed?
THE COURT: Mr. Epstein?
MR. EPSTEIN: Thank you.
THE COURT: Mr. Jules Epstein.
(Laughter)
MR. EPSTEIN: Thank you.
9 CROSS EXAMINATION
10 BY MR. EPSTEIN:
Sir, good morning.
Good morning.
11
11
12
13
Q
A
Q I'm going to stand because I can't see you, and maybe you
14 don't care, but you can't see me. Sir, if I understood
15 correctly, you are a certified fingerprint examiner, that
16
17
18
certification coming through IAI. Did I get that right?
A
Q
It's certified latent print examiner from the IAI, yes.
Okay. And you were granfathered in, which means that you
19 got your certification through your experience and training and
20 not through a particular test, is that correct?
21 A There was an evaluation of that done. And that is true, I
22 did not take a test at that time.
23 Q Okay. Currently, IAI does offer some form of a
24 certification or what's actually called are-certification
25 test, is that correct?
Page 12
Smith - Cross
1 A We have two tests that are currently issued. One is the
2 certification test, which is one that is used for new people
3 applying to be certified examiners. And then we also have a
4
5
6
7
8
9
proficiency test, which is given for re-certification.
Q Okay. And let's turn to that for a moment. The IAI for
its proficiency re-certification test waits for somebody to
mail in a fee of $150, correct?
For the re-certification -
Yes.
-- is $100.
12
10
11
A
Q
A
Q Okay, whatever the amount. And that person gets mailed a
12 test, correct?
13
14
A
Q
That's correct.
It get mailed to him or her to be done with no
15 supervision, correct?
16
17
A
Q
That's correct.
All there is is like an honor statement to sign that says
18 I promise that I didn't cheat, correct?
19
20
A
Q
That's correct.
And the nature of the test is three latent prints, three
21 sets of inked prints, meaning those ten-print cards, and the
22 three latents all correspond to the three inked cards,
23 correct?
24
25
A
Q
That is correct.
And to get that, they have 30 days to complete the test
Page 13
Smith - Cross
and mail it back in, correct?
A Yes.
Q Now the CTS test that we heard so much about yesterday,
13
1
2
3
4
5
6
7
8
9
when they use the ten-print cards, in other words there are
some latents and some ten-prints, those are indeed the standard
ten-print cards -- and by standard I mean the same kinds used
by the police and FBI and everybody in law enforcement,
correct?
A They are the same size. Obviously, the card itself is a
10 slightly different format.
11 Q But at the top you have the -- I'll do this backwards --
12 the five right fingers, correct?
13
14
15
16
A
Q
A
Q
That's correct.
Underneath it, you have the five left fingers, correct?
That's correct.
And as we saw yesterday when Mr. Meagher showed us on the
17 screen there, the right thumb is always above the left pinky.
18
19
A
Q
No.
Yours are flipped.
20 A Theirs are flipped, too. You misunderstood. The left
21 thumb and the right thumb are one on top of the other. They're
22 like you're holding your hands right now.
23
24
25
Q Now, fine. Whatever format they are, the ones that are
used in the CTS tests are in the same order --
A That's correct.
Page 14
Smith - Cross 14
1
2
3
4
5
Q -- right thumb above left thumb, as the standards used in
police work everyday, is that correct?
A Yes--
Q
A
Okay.
by format, I was talking about the layout of the card
6 to
7
8
9
10
Q Okay. But it's not in an unfamiliar order. It didn't get
switched back the way I mistakenly have it.
A No.
Q Fine. If I understand correctly, it is you who selects
11 the latents and you who selects the corresponding print cards
12 to be used in each annual CTS test.
13
14
A
Q
That's correct.
Okay. And those tests are mailed to a lab where the lab
15 has two weeks to complete it.
16 A Normally they would have just maybe a little bit more time
17 than that.
18
19
20
Q
A
Q
Fine, X period of time.
Yes.
And there is no requirement in a CTS test that within that
21 lab only one person do the test, correct or incorrect?
22
23
A
Q
That's correct.
So that if it's mailed to the South Dakota Lab or wherever
24 and they have five fingerprint examiners and it's their
25 practice to work together, you can get one piece of paper or a
Page 15
Smith - Cross 15
1 packet of paper back, one answer sheet that is actually the
2
3
4
5
answer sheet of not one examiner but of five.
correct statement?
That's what I explained yesterday.
Is that a
A
Q Okay. So that when we look at R-l and the tabulation of
6 these results, and for example we see that there was an error
7 one year -- if we had only one error, which would mean one
8 stapled together test packet came back with one error, that
9 could actually be five people's error, couldn't it?
10 A I would say that that's highly unlikely due to the number.
11 You wouldn't likely have a clerical error from somebody having
12 multiple examiners make the same clerical error.
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Well, I'm going to get to clerical error next. You leaped
ahead of me --
(Laughter)
Q -- but I go a little slower so bear with me.
A Yeah.
Q When you get a packet back, and if Question 7 has the
wrong answer, you have no way of knowing, because you aren't in
South Dakota or wherever, whether it's one person that made
that error, two, three, four or five or whatever number it is
who may have collaborated on that test.
statement?
That is correct.
Is that a correct
A
Q Okay. Now we'll go to your next point because you
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Smith - Cross 16
anticipated me. When you are assessing something where it
might be clerical error, that's based in part on an assumption
that it's one fellow or woman who did the test, and correct me
if I'm wrong when I say this, because you're working assumption
would be that if two or us or three of us or five of us and
we're all checking each other's work, one of us is going to say
oops,
A
Q
that's a clerical error. Do I get the gist of that?
Yes, that is the general rule.
Okay. And when you say general rule, we're really saying
10 that's the general working assumption, fair statement?
11
12
13
14
A
Q
A
Q
Yes.
Okay.
No.
Okay.
But we don't know that, do we?
So that in a case where you made an assumption that
15 a clerical error occurred, in fact it could have been five
16
17
18
19
20
21
people. There was no clerical error. But the five made a
misidentification or a non-identification where they should
have made an identification, correct or not?
A I don't believe that's what would have happened.
Q I didn't ask you if you believed that's what would have
happened, most respectfully. Because you aren't there, that
22 could have happened, correct or not?
23
24
25
A
Q
A
It is on the extreme outside of possibilities.
Is that a yes?
Yes.
Page 17
Smith - Cross 17
1 Q Thank you. Okay. Would you take a look at -- do you have
2 before you or may I ask, please, that Mr. Smith be presented
3 with the R-1, which he was testifying from yesterday, which is
4 that three-page document? Thank you so much. Would you be
5 kind enough to turn to Page 3, which was the chart where you
6 did some of the additional calculations? The last two columns
7 are total number of erroneous identifications and then your
8 approach that maybe some of those are clerical. Okay? Did you
9 happen to total up or would you accept for the moment that if
10 you went to Column 10, total number of erroneous
11 identifications, it's in the range of 162?
12 A I did not add it up, so -- and I don't have --
13 Q Okay. I'm not going to ask you to sit there and do that.
14 Would you agree that Column 11 is lower a number than Column
15 10?
16 A Yes.
17 Q So that even if you were correct that every single one
18 that you put into Column 10 -- 11, forgive me -- is indeed
19 nothing more than a clerical error, there is still a
20 significant proportion of the total errors that are
21
22
23
practitioner error. Is that a fair statement?
Uhm A
Q How about if I do it this way. Let me withdraw that for
24 the moment. Except for --
25 THE COURT: Mr. Epstein
Page 18
Smith - Cross
MR. EPSTEIN: Yes, sir?
18
1
2 THE COURT: Before you recast your question, help me
3 out, if you will, on what I think is a minor statistical
4
5
6
7
8
9
matter. You're asking questions on Page 3 --
MR. EPSTEIN: Yes, sir.
THE COURT: -- of R-l.
MR. EPSTEIN: Yes, sir.
THE COURT: You've referred to Columns
MR. EPSTEIN: Whoops!
THE COURT: -- and I --
MR. EPSTEIN: Nine and ten.
THE COURT: -- my counting is a total
10 and 11 --
of ten columns.
10
11
12
13
14
15
MR. EPSTEIN: Right. I had recalled someone saying
11 yesterday, so I went with the flow. You're right. I'm
wrong. My apologies. It's nine and ten. Do you see where I
16 am? And my apologies to the Court and to Mr. Smith.
17 THE COURT: I think maybe your son Jonah could help
18 you out with --
19 (Laughter)
20 MR. EPSTEIN: Thank you so much.
21 the rest of the examination.
22 BY MR. EPSTEIN:
I'll ask him to do
23
24
Q Accept for the moment that I just did a quick count and
indeed Column 9 is 162 and that Column 10 is 69. If we
25 subtract 69 from 162, we have ninety something. Okay? That's
Page 19
Smith - Cross
1 still a significant number of errors that are practitioner
2 error, even assuming your hypothesis of clerical error is
3 correct, agreed or not agreed?
4 A No, I don't agree. I think you have to look at more
5 things, such as Column 2, the number of tests given, and
6 actually the number of latents and ink prints included in all
7 those tests and add them up. And I think when you take that
8 against the smaller figure that you just mentioned, I don't
9 think it's a significant number.
19
10 Q Okay. You do agree with me that under IAI certification,
11 when you only do three comparisons, that if a person fails even
12 one, she or he is not certified, correct or not?
13 A That person is revoked --
14
15
16
17
18
Q
A
Q
A
Q
Is revoked.
that's the correct terminology.
Is revoked and their certification is suspended.
It's revoked for one year.
Okay. I'm sorry. That's right. After which they can
19 reapply.
20 A That's correct.
21 Q All right. In terms of Column 10, if I understand what
22 you did to generate Column 10 is that each year when people
23 mail in their tests, there are written comments, explanations
24 of different things or comments and the like, is that correct?
25 A Yes -- well, there are for most years. They changed the
Page 20
Smith - Cross 20
1 policy a little bit so consequently there's less detail in the
2 current reports than what there used to be in the older ones.
3
4
5
Q
A
Q
But in earlier years, there were these comments.
Correct.
And then you apparently went back through those comments
6 and said that gee, looking at this comments as applied to this
7 latent, this is probably a clerical error. But looking at this
8 comment as applied to this latent or this missed 10, whatever,
9 this doesn't look like a clerical error to me. Was that
10 essentially the process?
A No. There was more to it. 11
12
13
14
Q But you also -- so you went back and looked at the test
itself, correct?
A Yes, I looked at the test. I evaluated the latents that
15 were involved in the ones that were marked erroneous ident.
16 Evaluated what the real print was. And from looking at the
17 print itself you could tell it was erroneous -- I mean it was a
18 clerical error because the print weren't even the same type of
19 print.
20 Q Okay. Or somebody is a really bad examiner, correct?
21 A Again, that's in the area of being very hard to believe.
22 It is possible.
23 Q Okay. Would you please show Judge Pollak the document of
24 your notes from when you did that examination to make this
25 numerical chart?
Page 21
Smith - Cross 21
1 A I did not keep a working copy. What I did was a
2 tabulation sheet, which is basically the numbers that appear in
3 Column 10.
4 Q So in other words, we have no way to test your hypothesis
5 by saying that, for example, on this test you looked at this
6 comment. Here's what that comment was. Here's the test
7 itself. Here's the print. Here are the other prints. This
8 one has a loop. The others don't have a loop. And that's how
9 you concluded it. We have no way of going back and evaluating
10 that. Is that a correct statement?
11 A Not at this time, without doing it yourself.
Q Right. Okay. 12
13
14
15
16
17
18
MR. EPSTEIN: May I have the Court's indulgence
one minute?
THE COURT: Yes.
(Pause)
MR. EPSTEIN: Thank you, Judge Pollak. Thank
Mr. Smith. I have no other questions.
THE COURT: Thank you, Mr. Epstein. 19
20 MR. PERRICONE: Brief redirect, if I may, Your
21 Honor?
22 THE COURT: Absolutely.
23 REDIRECT EXAMINATION
24 BY MR. PERRICONE:
for
you,
25 Q Mr. Smith, you talked about how you came to the conclusion
Page 22
Smith - Redirect 22
of clerical errors. Do those tests still exist?
A Yes.
1
2
3
4
5
6
7
8
9
Q Are you aware that the tests have been provided in fact to
10
11
12
13
14
the defense to look at?
A I understand that.
Q Okay. So that the defense could hire an expert to look at
those and determine on their own, and maybe they have. But
they certainly have the possibility of hiring an expert, look
at it on their own. And if they disagreed, if they have a
person who disagrees with your hypothesis, that person could
come up here and testify, isn't that right?
A Yes.
Q Okay.
MR. PERRICONE: No further questions, Your Honor.
15 MR. EPSTEIN: May I have your indulgence for one
16 minute? I believe I may have to clarify something that Mr.
17 Perricone said.
18 (Pause)
19 MR. EPSTEIN: At this point, we may have a point of
20 clarification later, but we need to do a document search. So
21 at this point, we have no recross.
22
23
24
25
Smith.
THE COURT: All right. Thank you very much, Mr.
THE WITNESS: Thank you.
THE COURT: You may step down.
Page 23
23
1 MR. PERRICONE: If I may, Your Honor, the Government
2 has no further witnesses. The Government would like to submit
3 at this time, documents in connection with this hearing that
4 have been previously submitted to the defense and referenced in
5 previous Government pleadings. The first document would be a
6 document marked R-3, which is a reference list of -- it was
7 Government Exhibit 7-1 from the Mitchell hearing and was
8 referenced -- and has been referenced by both parties in the
9 pleadings. And that is a reference list of publications
10 regarding fingerprints.
11
12
13
MR. RESTREPO: No objection, Your Honor.
THE COURT: All right.
MR. PERRICONE: R-4, which is a bibliography of a
14 book by David Asbaugh who was one of the witnesses at the
15 Mitchell hearing, again with publications relating to
16 fingerprints. And that was Government Exhibit 7-2 at the
17 Mitchell hearing.
18 MR. RESTREPO: Again, no objection, Your Honor.
19
20
THE COURT: All right.
MR. PERRICONE: Also Government Exhibit R-5, which is
21 an excerpt from a publication by the National Academy of
22 Sciences, again previously provided to the Court and counsel,
23 that talks about the limitations of using laboratory error
24 rates in determining broader statistics.
25 MR. RESTREPO: No objection, Your Honor.
Page 24
24
1 MR. PERRICONE: R-6 and R-7, Your Honor, again
2 previously supplied to everyone, are just notes of testimony
3 from United States v. Gary Ramsey, which was the -- in addition
4 to the Mitchell case, the other case in this District in which
5 the judge reviewed the admissibility under Rule 702 of
6 fingerprint identification testimony. And R-6 includes Judge
7 Yan's oral findings regarding the admissibility of fingerprint
8 identification testimony and R-7 is the actual testimony that
9 was admitted at that trial, the testimony of a fingerprint
10 examiner.
11 MR. RESTREPO: No objection, Your Honor.
12 THE COURT: All right.
13 MR. PERRICONE: R-8, Your Honor is an article in the
14 Journal of Forensic Sciences which we submit to the Court
15 discusses an empirical test of various types of evidentiary
16 techniques and forensic sciences, including fingerprint
17 identification. It was cited to by Justice Stephens in -- I'm
18 sorry--
19 (Counsel confer)
MR. PERRICONE: in a case that's been cited to the 20
21 Court. I'll give the Court the case cite. It was the
22 relatively recent United States Supreme Court case of United
23 States v. Schaefer that discussed the military rule barring
24 polygraph evidence in all circumstances. Justice Stephens in
25 descent discussed this study. And this study does discuss
Page 25
25
1 fingerprint evidence. So we retrieved that and submitted that
2 to the Court.
3 MR. RESTREPO: No objection, Your Honor.
4
5
6
handy?
THE COURT: Do you have the citation of Schaefer
MR. PERRICONE: I do, Your Honor. It's 523 U.S. 303.
7 It's in Justice Stephen's descent. And I believe it's
8 Footnote 24.
9
10
THE COURT: All right.
MR. PERRICONE: R-9, Your Honor, is an appendix that
11 was submitted in connection with the post-trial hearings in the
12 Byron Mitchell case regarding the National Institute of Justice
13 Solicitation. And it contains a series of affidavits of
14 various individuals present at meetings in which this
15 solicitation was discussed.
16 MR. RESTREPO: No objection, Your Honor.
17 MR. PERRICONE: And 11A and lIB, Your Honor, are two
18 documents that are summaries of the survey results of the
19 Mitchell prints that were sent out in connection with the
20
21
22
23
24
25
Mitchell case. In Mr. Meagher's testimony and in some other
individuals testimony in the Mitchell-Daubert hearing, there
was reference to these results and references to these surveyed
results and these particular documents. It's hard to
understand the references without referring to those documents
so I'm providing them to the Court in case the Court has not
Page 26
26
1 had the opportunity to review those.
2 MR. RESTREPO: No objection, Your Honor.
3 THE COURT: All right.
4 MR. PERRICONE: And finally, Your Honor, there's
5 Government Exhibit R-20, which has not been previously
6 submitted to the Court. I'll hand a copy to the Court now.
7 It's an excerpt from the Mitchell trial, not the actual
8 hearings. The Mitchell trial transcripts were not entirely
9 provided to the Court by either party. And it is a transcript
10 of those days of the trial in which various individuals who had
11 not made -- some of whom had not made identifications of the
12 Mitchell prints during the survey were called to testify
13 regarding their initial failure to make an identification and
14 their resultant in all but one case, the resultant
15 identifications with follow up. Your Honor, what there is not
16 in that, and I'll submit that, a short excerpt that is not in
17 those two days. And I apologize for not having that here now.
18 There also was a stipulation relating to the results of the
19 Mitchell survey that was entered into evidence at the time of
20 the Mitchell trial. And I will provide that to the court
21 before the end of the day
22 THE COURT: All right.
23 MR. PERRICONE: -- I'll mark that as a separate
24 exhibit.
25 MR. RESTREPO: No objection, Your Honor.
Page 27
1
2
3
4
5
6
Epstein - Argument 27
THE COURT: All right.
MR. PERRICONE: And with that, Your Honor, we would
rest.
THE COURT: All right.
forward or does the defense --
Is the defense ready to go
MR. RESTREPO: Judge, we're ready.
7 THE COURT: does somebody want a recess?
8 MR. RESTREPO: Judge, we're ready.
9 THE COURT: All right.
10 MR. EPSTEIN: Your Honor, if I may, the fundamental
11 issue here continues to be the reliability of fingerprint
12 identifications that are made from the type of distorted latent
13 fingerprint fragments that are typically found in crime scenes.
14 Examiners in making these identifications claim absolute
15 certainty for their opinions and that they can make the
16 identification to the exclusion of all other fingers in the
17 world. Examiners have a reliable basis to provide such
18 opinions. I think it's pretty much beyond dispute at this
19 point that there has been no testing, no studies, no
20 experiments that have ever been published to address this
21 issue. There have been no validation studies every done in
22 this field to assess the accuracy of examiners depending upon
23 the quality of the prints that are under examination and
24 depending upon the quantity of ridge detail that are in the
25 distorted latent fingerprint fragments that they are
Page 28
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2
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Epstein - Argument 28
considering.
Now it is beyond dispute that examiners do err. We
see that on the proficiency tests. We see that in real cases.
4 There are document cases where examiners doing the same type of
5 comparison that Mr. Meagher illustrated for us yesterday have
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
made false identifications. False identifications where
they've seen upwards of 16 points of similarity. The problem
is that there has never been testing to assess what the error
rates of this methodology actually is.
Now into this vacuum of testing, the Government now
steps forward with these FBI internal proficiency tests and
with the 2001 CTS external proficiency tests. Mr. Perricone
yesterday acknowledged that these tests are not scientific
studies. These were not designed as validation studies. They
were not designed to provide us with error rates for the
methodology or for the practitioners. In his words, these are
limited, imperfect studies -- limited, imperfect testing.
Nevertheless, the Government submits that Your Honor can
consider these tests, can rely upon these tests in deciding
whether sufficient reliability for the FBI fingerprint
examiners has been demonstrated.
Well in the few weeks that we've had since they've
produced these tests, we've tried to do what the Government has
not, and that is to have some people from outside of the FBI
evaluate these tests. And today, we will present several
Page 29
Epstein - Argument
1 witness. First we will present a fingerprint examiner from
2 England with 25 years of experience. His name is Mr. Allan
3 Bayle. And he will testify as to his evaluation of these
4 tests. And he will explain to the Court how these tests are
5 extremely easy. And that the prints utilized on these tests
6 are not, in fact, representative of what is found in real
life.
29
7
8 We will next represent Ms. Janine Arzizu. Ms. Arzizu
9 is an expert in the assessment of laboratory quality assurance
10 programs, specifically proficiency testing. And we will
11 provide the Court with her criticisms of these proficiency
12 tests as well. And finally, we will present the Court with the
13 testimony of at least one psychometrician, that is an expert in
14 the design and evaluation of testing. And we will present Dr.
15 Ralph Haber. And he will testify to his criticisms of the
16 testing that the Government has now put forward as well.
17 Thank you.
18 MR. RESTREPO: Your Honor, we call Mr. Allan Bayle to
19 the stand, Your Honor.
20 THE COURT: All right.
21 ALLAN BAYLE, DEFENDANT'S WITNESS, SWORN
22 COURT OFFICER: Please state your name for the record
23 and spell your last name.
24
25
THE WITNESS:
COURT OFFICER:
My name is Allan Bayle, B-a-y-l-e.
Thank you, sir. Please be seated and
Page 30
Bayle - Direct
1 speak into the microphone.
2 THE WITNESS: Okay.
3 COURT CLERK: Mr. Bayle, your first name Allan is
4 spelled?
5 THE WITNESS: A-l-l-a-n.
6 COURT CLERK: A-l-l-a-n. Thank you, sir.
7
8
9
10
11
12
13
14
15
DIRECT EXAMINATION
BY MR. RESTREPO:
Q
A
Q
A
Q
A
Q
Good morning, Mr. Bayle.
Good morning.
Mr. Bayle, how are you currently employed?
I'm a private consultant and I'm working for myself.
And what do you consult in?
I consult in all ID's of fingerprints.
Sir, who is your client base -- your typical client base
16 right now?
17
18
19
20
21
22
A
Q
A
Q
A
Q
All defense.
Could you please speak up just a little?
All defense.
When you say defense, do you mean defense attorneys?
Defense lawyers, attorneys, yes.
Okay. So where do you work? Do you work in the United
23 States?
24
25
A
Q
No, I work in London.
All right. Sir, since when have you been so employed?
30
In
Page 31
Bayle - Direct 31
other words, how long have you been self-employed?
A Since June the 1st last year.
Q So that would be June the 1st of 2001.
A That's right.
Q And so prior to June the 1st, 2001, where were you
employed?
I was employed at New Scotland Yard.
1
2
3
4
5
6
7
8
A
Q And while you were at Scotland Yard or New Scotland Yard,
9 were you a fingerprint examiner there?
10 A Yes, I'm a fingerprint examiner and a forensic scene
11 examiner.
12
13
14
15
16
17
18
19
20
21
22
Q
A
How long did you work for Scotland Yard?
Twenty-five years.
Q And have you testified in court as a fingerprint expert
before today?
A Yes. I've covered all types of courts from the High Court
of the -- to the juvenile courts.
Q And how many times --
THE COURT: Could I ask -- excuse me -
MR. RESTREPO: Oh, I'm sorry.
THE COURT: Mr. Bayle. The acoustics in this
courtroom are not very good. So I'm going to ask you to speak
23 up more, if you will --
24 THE WITNESS: Okay.
25 THE COURT: -- perhaps get closer to the microphone.
Page 32
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Bayle - Direct 32
Q And, sir, how many times have you testified in court and
qualified as a fingerprint expert?
Hundreds of times. A
Q Sir, during the course of your career in Scotland Yard and
5 in private practice, how many crime scene latent prints have
6 you examined?
7
8
A
Q
Many thousands.
During the course of your career, how many ten-print cards
9 have you examined?
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Many thousands. A
Q Sir, sometimes during your testimony you may use the term
"mark." Is that the term we know as print?
A Yes. I've had problems with your terminology.
try and keep up.
Q
A
It's a latent print, correct?
That's correct.
But I'll
Q Now, sir, have you been certified in England as a
fingerprint expert?
A Yes, I have.
Q What professional associations are you a member of?
A I'm a fellow of the Fingerprint Society in England and I'm
also a member of the IAI.
Q The IAI would be the International Association for
24 Identification, is that correct?
25 A Yes, sir.
Page 33
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22
23
24
25
Bayle - Voir Dire 33
Q Sir, have you ever lectured or taught courses in
fingerprint examination?
A Yes. In the five years before I resigned, I lectured all
over the country in England and Whales and Scotland. I've
lectured at Durham University. I've lectured to heads of
bureaus allover the U.K. on training and where training is
going on in the future. I've taught a bureau from the United
States, US Army. I've also taught Swedes, Dutch, French,
Germans, various courses that I've done.
Q Sir, have you ever shared the same platform or lectured
with Mr. Meagher?
A
Q
A
I certainly have
And where --
in England.
MR. RESTREPO: Your Honor, we would offer Mr. Bayle
as an expert in fingerprint examination.
MR. SARAMOUSAKIS: Just a couple of questions, Your
Honor.
VOIR DIRE
BY MR. SARAMOUSAKIS:
Q Sir, I take it then that you have made, as part of your
expertise, positive identifications of latents to known
exemplars, correct?
A
Q
Oh, yes, yes.
And you have, have you not, also made eliminations, that
Page 34
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2
3
Bayle - Voir Dire
is exclusions?
A Oh, yes, yes, yes.
Q Okay. And I take it you also, sir, have, from time to
34
4 time, come upon latent prints or marks, as you call them, that
5 are of no value, don't have sufficient information to make a
6 comparison.
7
8
A Many times.
MR. SARAMOUSAKIS: That's all. I accept him as an
9 expert, Your Honor.
10 THE COURT: All right.
11 MR. RESTREPO: May I approach
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE COURT: Thank you --
MR. RESTREPO: -- the witness briefly?
THE COURT: you may proceed. Go ahead, MR.
Restrepo.
MR. RESTREPO: I'd ask that these seven envelopes be
marked collectively defense Exhibit 1 and then A through, I
believe, G. And 1995, Your Honor, would be 0-lA; 1996 would be
0-lB; 1997 would be 0-lC; 1998 would be 0-10; 1999 would be D
IE; 2000 would be F, Your Honor; and 2001 would be G.
DIRECT EXAMINATION (con't)
BY MR. RESTREPO:
Q Sir, I place before you several years of the FBI
proficiency examinations. Did you have an opportunity before
today to review the materials in each of those packages?
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Bayle - Direct 35
Yes, I did. A
Q Now, sir, I'd ask you to start with what's been marked as
defense Exhibit D-1A, which would be 1995. If you could just
take the fingerprints, cards and the latent fingerprint
photographs out of the envelope, please?
A Okay.
Q Now, sir, are the latent prints that you find in Exhibit
8 D-1A -- are the latent prints representative of what one would
9 expect to find at a crime scene?
10
11
A
Q
The marks themselves?
Yeah, the latent marks themselves, sir.
12 THE COURT: Mr. Restrepo, these are not materials
13 that you've supplied.
14 MR. RESTREPO: I've gotten them from the Government,
15 Your Honor.
16
17
THE COURT: Yes. I see.
MR. RESTREPO: I'm sorry.
They're not --
This is the only copy we
18 have, Judge, of these prints.
19
20
21
22
23
24
25
THE COURT: I see.
MR. RESTREPO: We'll make arrangements to copy the
photographs, Judge.
A
Q
A
THE COURT: All right.
To your answer, no.
So these are not representative?
No.
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Bayle - Direct
Q Sir, how does the clarity of those particular latent
prints compare to the latent prints that one would expect to
find at a crime scene?
A They're much easier.
Q
A
When you say easier, what do you mean?
The clarity is very good and the rich detail is has a
7 rich detail there. The quantity of rich detail is very good.
S There's no background noise
36
9 Q Sir, could you explain background noise and distortion to
10 the Court?
11 A Background noise is what we call the substrate. And it's
12 like if you leave your mark on a grain surface, the grain
13 surface will show in the background, and that's interference.
14 And that's what you'll get at most scenes of crime when you
15 obtain them and you actually lift the marks from that
16 particular substrate.
17 Q Let me put it to you this way, if I put my marks or my
18 fingerprints on this table, correct?
19
20
21
22
A
Q
A
Q
Right.
The background noise would be the table, correct?
The grain of the table, yes.
And the distortion would be the pressure that I've applied
23 to my fingers -- the tips of my fingers, correct?
24
25
A
Q
That's right.
And that's the distortion, is that right?
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6
7
8
9
Bayle - Direct
A That's part of the distortion, yes.
Q Okay.
represented
So is the background noise or distortion that's
in those latent prints that you're taking a look
at, is that representative of what you would find at a crime
scene?
A No.
Q All right. Now, sir, at a crime scene, would you expect
to see background noise and distortions?
A Yes, I do.
10 Q Now, sir, are the latent prints in the materials that
11 you're looking at, are they difficult to match?
No.
37
12
13
A
Q Now, sir, is there any significance in having a low number
14 how many ten-print cards do you have there? I'm sorry.
15 A I have three.
16 Q And how many latent prints do you have there?
17
18
19
20
21
22
23
24
25
A
Q
A
Q
A
Q
A
Q
I'm sorry.
I'm sorry.
I have three latent prints and I have
How many latent prints do you have there?
I have eight latent prints or eight marks
Okay.
-- or eight sets of marks.
And how many ten-print cards do you have?
And I have three ten-print cards.
Okay. Now is there any significance to having just three
ten-print cards in this examination?
Page 38
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Bayle - Direct
Well, it's not enough for a test.
Q And why do you say that?
38
1
2
3
4
5
6
7
8
9
A I say that because it really narrows down the searching if
10
11
you want to test somebody like this. And really there's too
many marks that are very good. And some of these -- most of
these are identical. And you're defeating the object.
Q Sir, if you could take a look at the envelope marked 1996,
which would be Exhibit D-IB?
A
Q
A
Right.
Do you have the ten-print cards and the latent prints?
I have two ten-print cards.
12 Q Two ten-print cards. And how many latent prints do you
13 have in 1996?
14
15
16
A
Q
A
I have seven marks.
Seven marks, seven latent prints.
Seven latent prints, yes.
17 Q Now, sir, again, are the latent prints that you see in the
18 1996 materials, are they representative of what one would
19 expect to find at a crime scene?
20
21
22
23
24
25
A
Q
No, they're nothing like it.
Sir, again, how does the clarity of the 1996 latent prints
compare to what one would expect to find at a crime scene?
A These are very good. I'd be very pleased if I found
something like this at a scene.
Q So in other words, when I'm saying latent prints from a
Page 39
Bayle - Direct 39
1 crime scene, that's latent prints recovered from a crime scene,
2
3
4
5
6
7
8
9
10
11
correct?
A That's right.
Q And I'm sorry. Again, you say there's too much clarity in
the materials you're looking at?
A Yeah, they're very good. It's very easy to look at.
Q Sir, what about the ridge detail with respect to what one
would expect to find from latent prints recovered from a crime
scene?
A There's lots of detail. I would have no problems with
this. I wouldn't have any problem identifying these. It is so
12 good. There's no interference at all, no background noise
13 again.
14
15
16
Q
A
Q
Are there any distortions?
No distortions.
Sir, is the Delta area -- is there a lot of detail from
17 the Delta area in those prints?
18 A Yes. If there's a Delta there then there are plenty of
19 detail there. And if you're showing a Delta area, that's a
20 very easy place to start to make an identification.
21 Q And could you show the Judge, when you say Delta area,
22 what part of your finger you're talking about?
23 A I'm talking about the bottom of the majority of -- like
24 the wells, twin loops and loops. It's like a little star. And
25 it's a very good starting point to identify somebody with --
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6
7
8
Q
A
Q
Bayle - Direct
Would that be the top digit, the
The bottom part of the digit.
The bottom part of the top part.
A In fact, bottom part of the pattern.
Q Okay. Sir, are the 1996 latent prints
there -- are they all easily identifiable?
Yes, they are.
in the package
A
Q Sir, again if I could ask you to take a look at the 1997
9 materials, also known as defense Exhibit C?
10
11
12
13
14
15
16
17
18
19
20
A
Q
A
Q
Okay. I have two sets of fingerprints or -
How many ten-print cards do you have in 1997?
I have two.
Two. And how many latent prints do you have in 1997?
A I have eight latent prints.
Q All right. Sir, again, are the latent prints that you
find in the 1997 materials representative of what one would
expect to find at a crime scene?
A
Q
A
No.
Why?
Same as previously. They're too easy. They're much
21 easier than you'd find at a scene of crime.
22 Q More specifically, how does the clarity of those prints
23
24
25
A
Q
The clarity --
-- of the latent prints --
40
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6
A
Q
A
Q
A
Q
Bayle - Direct
is very good. There's no background noise again.
Are there any distortions?
There's no distortions.
What about the ridge detail on those prints?
Ridge detail is very clear.
Now, sir, in 1997 -- you're looking at the 1997 cards.
7 I'd ask you to take a look at the ten-print cards of Thomas
8 Wright and Roger Ham.
Yes.
Have you seen those before?
Yes, I have, in 1996.
41
9
10
11
12
A
Q
A
Q So there's the same ten-print cards or are they taken from
13 the same individual, I should say --
14
15
16
17
18
19
20
21
22
23
24
25
A
Q
A
Yes, they are
as 1996?
they are the same cards.
Q Now, sir, is there a problem using names on these ten-
print cards?
A Yes, there certainly are --
Q
A
Okay.
-- I've done lots of tests like these.
leave the names on there.
Q Why not?
Because the examiners remember them.
I would never
A
Q And is there a problem using the same ten-print cards in
Page 42
Bayle - Direct
1 consecutive examinations?
42
2 A There certainly is because once they've got a name to the
3 cards they can also remember the patterns.
4 Q Sir, if you could please take a look at the 1998
5 materials, also known as defense Exhibit D-ID?
6 THE COURT: Can I interrupt there for a moment? Are
7 you saying that an examiner would be likely to remember from
8 1996 to 1997 the name attached to a --
9
10
11
12
13
THE
THE
THE
THE
THE
WITNESS:
COURT:
WITNESS:
COURT:
WITNESS:
Yes,
-- card
Yes,
-- and
They
sir.
--
sir.
the pattern related to that name?
can, yes, sir. It's quite
14 because when you are a fingerprint expert, you remember certain
15
16
things and patterns especially. It's my trade. It's all of
fingerprint experts. It's what they're taught. They're taught
17 to identify. And when you are teaching or when you are
18 practicing fingerprint expertise, I can look at, say, three or
19 four ridge characteristics in agreement and I'll remember that
20 or even a pattern and I'll remember that. And I can go to
21 court say five, six years later and I actually remember the
22 mark--
23
24 of--
25
THE COURT: Notwithstanding that you've seen hundreds
THE WITNESS: That's right.
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10
Bayle - Direct
THE COURT: -- intervening marks?
THE WITNESS: That's right. That's right.
THE COURT: All right.
BY MR. RESTREPO:
Q Sir, if you'd take a look at the 1998 materials? Now,
sir, are the latent prints -- excuse me -- how many latent
prints do you have in that material?
A Twelve.
Q And how many ten-print cards do you have in that
material?
11 A I have three ten-print cards --
12 Q Okay.
13 A and I have six palm cards but of three people.
43
14 Q So you have the palm cards of three different individuals,
15 six total.
16 A That's right.
17
18
19
20
21
22
23
24
25
Q Now, sir, again, how do these latent prints -- are they
representative of what one would expect to find at a crime
scene?
A No.
Q And how does the clarity of these latent prints compare
with what one would expect to find at a crime scene?
A
Q
A
The clarity is very good.
Better than one would expect to find at a crime scene?
No, no.
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Bayle - Direct 44
Q Are they better than one would expect to find at a crime
scene?
A These are a lot better.
Q And how does the ridge detail of the latent prints compare
with what one would expect to find at a crime scene?
A Very good, very clear.
Q And could you please tell us with respect to the
background noise and/or distortions, how do they compare with
what one would expect at a crime scene?
A
Q
Well, there's no background noise and no distortions.
Now, sir, with respect to the twin loop, does one of those
12 latent prints represent what's known as a twin loop?
13
14
15
16
17
A Yes. It's Number 4.
Q And what's the significance of a twin loop appearing in
these materials?
A A twin loop is like the shape of an S and it's quite easy
to recognize, especially to a fingerprint expert. I mean if he
18 sees a twin loop, that narrows down the search considerably.
19 Q Would that allow a fingerprint expert to make a Level 1
20 match?
21
22
23
24
25
A
Q
Easily, easily.
And what's the significance of that with respect to a
proficiency examination?
A Well, if you're going to have a twin loop, then you must
have twin loops in every single form that's in that test.
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Bayle - Direct
Q Why?
A Well, because you're not testing them. And in this
particular case, you have two ten-print cards. There's only
one card there with twin loops. That narrows down the search
immediately. You don't even have to look at the other ten
print cards.
45
Q Sir, if I can ask you to look at the 1999 materials, also
known as D-IE?
A Can I just go back to the -- I'm sorry to the Court --
there's actually 13 because I've just found this thirteenth one
in the envelope. So that's
Q
A
Q
A
Q
And that would be for 1998.
-- actually 13. Again, there are three ten-print cards.
And how many latent prints did you find in there?
There's ten.
Sir, the latent prints in the 1999 materials, are they
17 representative of what one would expect to find at a crime
18 scene?
19 A No, not really.
20 Q When you say no, not really, can you tell us with respect
21 to more specifically the clarity of these latent prints? How
22 do they compare with latent prints one would expect to recover
23 from a crime scene?
24
25
A These are very good. The clarity is very good.
there's no background noise.
Again,
Page 46
1
2
3
4
5
Q
A
Q
A
Q
Bayle - Direct
Is there any distortions
No distortions.
are there any distortions?
No.
And how does the ridge detail of these latent prints
6 compare with what one would expect to find at a crime scene?
7
8
A
Q
This is very good, much easier.
Sir, if you could take a look at the Delta palmprint
9 latent print?
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Q
A
Q
Yes.
Have you seen that before?
Yes, I have.
In what year?
A In 1998.
Q All right. And
THE COURT: I'm sorry. Did you say the Delta
palmprint?
Q
A
Q
A
MR. RESTREPO: The latent he has, Judge.
THE WITNESS: That's this area here, Your Honor.
THE COURT: All right.
THE WITNESS: It's the Delta
And, sir, had that been used in a previous examination?
Yes. It was used again in 1998.
Previously in 1998.
Yes.
46
Page 47
1
2
3
4
5
6
7
8
9
10
Q
Bayle - Direct
Just the year before, is that correct?
A That's right.
47
Q Now, sir, if you could take a look at latent print Number
4 from 1998?
A Yes.
Q
A
Q
A
And compare it to Number 6 from 1999 -
Yes.
Did you compare those two?
Yes. They're the same.
MR. RESTREPO: I'm sorry. This is Number 4 from
11 1998.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. PERRICONE: Okay. They're not individually
marked in the exhibits but --
MR. RESTREPO: I'm using the FBI -- and for the
record, Judge, Mr. Perricone is right. I'm referring to the
numbers that the FBI has assigned latents in each individual
package. In other words, Number 4 would be latent print Number
4 from the 1998 examination and Number 6 would be latent print
Number 6 from the 1999 examination.
Q And, sir, when you compare these two, can you tell the
Court what you find?
A
Q
It's the same left forefinger.
And is this also the one you talked about earlier about
being a twin loop?
A That's right.
Page 48
Bayle - Direct
1 Q And what's the significance of reusing this latent print
2 in 1998 and in 1999?
3 A There's only one ten-print card for that particular
4 pattern.
5
6
7
Q
A
Q
Does it make the test easier?
Yes, it does. It narrows it.
And again with reusing the Delta palm latent print, does
8 that make the test easier?
It certainly does for that, yes.
48
9
10
A
Q Sir, could you please take a look at the materials in the
11 envelope noted as F? That would be the year 2000, D-1F.
12 THE COURT: Before you do that, let me make sure that
13 I understand the responses you just gave to Mr. Restrepo. So I
14 understand you, you said that the latent print Number 4 in 1998
15 is the same left forefinger as latent print Number 6 in
THE WITNESS: 1999.
THE COURT: -- 1999.
THE WITNESS: Yes.
16
17
18
19
20
21
THE COURT: And then did I also understand
THE WITNESS: There's another mark.
THE COURT: -- because of the identity of
22 loop that that relates to one ten-print card?
THE WITNESS: Yes, sir.
that --
the twin
23
24 THE COURT: And that ten-print card would be common
25 to both the '98 and '99 packages?
Page 49
1
2
Bayle - Direct
THE WITNESS: It's the same card, yes.
THE COURT: Excuse me. Go ahead.
3 BY MR. RESTREPO:
Q Look at the year 2000 materials, please. Again, the
49
4
5 latents and the -- before we start with examination, sir, could
6 you explain to the Court what the hypothenar area of the hand
7
8
9
10
is?
A
Q
A
If you can just show His Honor?
(Witness pointing) -- it's this part here, Judge.
Being the outside part of the palm?
The outside part of the palm. This is called the
11 hypothenar area.
12
13
14
THE COURT: Hypo?
THE WITNESS: Thena.
THE COURT: Hypothenar?
15 Q Sir, if you would please take a look at the latent prints
16 in the year 2000 -- the materials from the year 2000? Now,
17 sir, are these latent prints representative of what one would
18 expect to find at a crime scene?
19
20
21
22
23
24
25
A
Q
No.
Why?
A The clarity is very good. There is no background noise
again. The rich details are a lot better. There's one or two
that are smudged, which I hadn't come across before.
Q
A
And that would be a distortion, correct?
Smudging, yes, it's a certain sort of distortion. Yes, it
Page 50
1
2
3
4
5
Bayle - Direct
is.
Q And it would be because the person applying the pressure
had moved his or her hand?
A That's right. That's because the sweat is pouring from
the pores and the ridges. And you will find that some people
6 when they start committing offenses they do sweat even more.
7
8
9
10
11
12
13
14
So when they put their fingers down, their hands will slide
across the substrate. And that's why you get the smudging.
Q And how does the ridge detail of these latent prints
compare with what one would expect to find at a crime scene?
A Most of them are very good. There's a couple here that
because of the smudging would make it a little bit more -- a
little harder.
Q Now in this particular group, are any of these prints
15 particularly difficult to match?
16 A No.
17 Q Sir, if you could please take a look at the palm Delta
18 the latent print of the palm Delta you have in the 2000
19 materials?
20
21
22
23
24
25
A
Q
A
Q
Okay. Number 7?
Is that the palm Delta?
MR. PERRICONE: Which one?
MR. RESTREPO: In 2000.
There is more than one palm -
All right.
50
Page 51
Bayle - Direct 51
1 A -- you're referring to Number 7 .
2 Q Number 7 .
3 A Number 7 .
4 Q Have you seen Number 7 previous to the year 2000?
5 A Yes. It was used in 1998 and 1999 tests.
6 Q So this same palm Delta --
7 A Yes.
8 Q -- was used in three consecutive tests, is that correct?
9 A Yes.
10 Q And if you could look at the latent of the hypothenar
11 area?
12 THE COURT: I'm sorry. 1998 and
13 MR. RESTREPO: 1999, Your Honor.
14 THE WITNESS: 1999.
15 THE COURT: '98 and '99.
16 MR. RESTREPO: And 2000, obviously.
17 THE COURT: Yeah.
18 MR. PERRICONE: '98 and 2000, right?
19 MR. RESTREPO: 1998, 1999 --
20 THE WITNESS: '99
21 MR. RESTREPO: and 2000.
22 THE WITNESS: -- and 2000
23 Q Sir, if you could take a look at the hypothenar latent?
24 Have you seen that before?
25 A Yes, I have.
Page 52
1
2
3
Q
A
Q
4 2000?
Bayle - Direct
In what year had you seen that?
I've seen that in the 1998
And what number is affixed to that print in the year
5 A Number 9.
Q Now, sir, if you take a look at those ten-print cards in
52
6
7
8
9
the year 2000 with the name D. Coffee? Have you come across D.
Coffee's ten-print card before?
10
11
12
A Yes, I have.
Q And have
THE COURT: I didn't -- I'm sorry.
MR. RESTREPO: I think it's D. E. Coffee is the name
13 that they've given.
14 THE WITNESS: D is the initial and then it's coffee
15 as in drink.
16 Q And have you seen this ten-print card from D. Coffee
17 before?
18
19
20
21
22
23
A
Q
A
Q
A
Q
Yes, it's been used again in 1998, 1999.
And it appears, obviously, in the year 2000 materials?
It does.
And did the name always appear with the ten-print card?
Yes.
Sir, if you could take a look at the year 2001, also known
24 at D-IG? Sir, could you tell the Court how many latent prints
25 are in the materials in the year 2001?
Page 53
1
2
3
4
A
Q
A
Q
Bayle - Direct
Ten.
And how many ten-print cards?
Three.
Now, sir, again, how did the latent prints in the
5 materials in the year 2001 -- are they representative of what
6
7
8
9
10
11
12
13
14
15
one would expect to find at a crime scene -- of the latent
prints recovered at crime scene?
A No.
Q How does the clarity of these particular latent prints
compare with what one would expect to have found at a crime
scene?
A Much better.
Q And how does the ridge detail of these latent prints
compare with what one would expect to find at a crime scene?
A Very good.
16 Q When you say very good, what do you mean?
53
17 A I mean there's lots of rich detail there. The clarity is
18 good
19
20
21
22
23
24
25
Q
A
Q
A
Q
And
no background interference.
I'm sorry. I didn't hear you.
No background interference.
And with respect to the distortions, are there any
distortions in that material?
A No.
Page 54
Bayle - Direct 54
1
2
3
4
5
6
7
8
9
Q Sir, we've talked a lot about distortions and background
noise. Would it be typical -- would you expect to find those
sorts of characteristics on latent prints recovered from crime
scenes, background noise and distortion?
A Oh, yes, in a majority of the cases.
Q Now, sir, the 2001 prints, were any of those prints
particularly difficult to match?
A No.
Q NOW, sir, if you could please take a look at the following
10 prints: Number 6 from the year 1998, Number 1 from the year
11 1999, Number 7 from the year 2000, and Number 8 from the year
12 2001?
13 A It's all the palm Delta -- it's the same palm Delta.
14 Q So that would be the same palm Delta for '98, '99, 2000
15 and 2001?
16
17
A
Q
That's right.
If you would please take a look at Number 8 from 1998,
18 Number 9 from 2000, Number 3 from 2001?
19
20
21
22
A
Q
A
Q
Yes, that's the same hypothenar that was used before.
Before, so --
It would be 1998, 2000 and 2001.
NOW, sir, were you surprised by the lack of non-
23 identifiable latent prints in the various examinations?
24
25
A
Q
I'm very surprised.
Why?
Page 55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Bayle - Direct 55
A Because it makes the test too easy. It's not testing
their ability. It doesn't test their expertise. I mean I've
set these tests to trainees and advanced technicians. And if I
gave my experts these tests, they'd fall about laughing.
Q Now, sir, of the latent prints recovered at crime scenes
and returned to the lab, what percent of those latent
are typically matched?
A About ten percent.
Q To test examiners for the possibility of a false
prints
identification
this courtroom
I think we've used the term false alarm in
do you think it's important to use many
non-identifiable latent prints?
A It's very important.
Q Now, sir, were you surprised by the number of palm prints
included in these materials?
A Yes, and not enough of them.
Q
A
Q
Of palm prints.
Not enough palm prints in the test.
Now are you saying there was not enough palm prints in the
20 test?
21
22
23
24
25
A There's not enough palm prints in the test. That's
right.
Q Now were you surprised by the number of latent palm prints
included in the materials?
A No. But I am surprised at how much detail they show.
Page 56
Bayle - Direct 56
1 Q Now are palm prints more difficult or easier to identify?
2 A They're easier to identify because there's more surface
3 area.
4 Q Now when you go to a crime scene, do you expect to recover
5 more latent fingerprints or more latent palm prints?
6 A More latent fingerprints.
7 Q And what percent would you expect to find with respect to
8
9
10
latent palm prints?
A Only about one or two percent.
Q Sir, you've prepared an overhead or an exhibit that
11 compares the latent prints recovered from crime scenes to the
12 latent prints the FBI used in these proficiency examinations,
13 is that correct?
14 A I certainly did, yes.
15 MR. RESTREPO: Your Honor, this would be marked as
16 0-2, Judge. And unfortunately, this doesn't face the Court.
17 If I can turn the -- do you have a monitor up there, Your
18
19
20
21
22
23
24
25
Honor?
Q
A
Q
THE COURT: Yes.
MR. RESTREPO: Great. Okay.
Sir, the top row, can you see this, Mr. Bayle?
Yes, I can.
MR. PERRICONE: What exhibit number is that?
MR. RESTREPO: We'll call this 0-2.
Sir, the top row, underneath where it says "scenes of
Page 57
Bayle - Direct
1 crime latents," starting with the far left, the darker one,
2 could you explain to the Court what that represents?
3 A Okay. The first one there is actually what I was trying
57
4 to say to you. It's a typical scene of crime mark taken from a
5 grained surface.
6 Q So the grained surface would be what, in your terminology,
7 the background noise?
8 A The background noise
9 Q Background noise.
10 A -- and as you can see from that, it does interfere with
11 the ridge formation. But this particular mark is identifiable.
12 There are plenty of ridge characteristics to make an
13 identification. It just makes the test a little bit harder
14 when you've got background noise from a scene of crime.
15 Q Now, sir, the second print, the one that's purplish in
16 color, could you tell the Court about that?
17
18
19
over --
MR. PERRICONE: Top right? I mean the second one
MR. RESTREPO: Yes, this one. The second one moving
20 from left to right on the top row.
21
22
23
24
25
Q Could you please explain that latent to the Court?
A This is a developed mark using a chemical called Ninhydrin
(phonetic). And it develops the mark. It's mainly on porous
surfaces like paper, clear wood, cardboard, things like this.
But that's an actual mark that's been identified as well.
Page 58
1
2
Q
A
Bayle - Direct 58
Do you know what the background noise is on that?
The background noise is really the purplish -- sometimes
3 when you press a piece of card or whatever, you're sweating and
4 therefore there's a spread of -- and this reacts to aminoacids
5 in the sweat, by the way. And if you've got a lot of sweat in
6 one particular area, that will keep out some of the ridge
7 detail or remove it. And in this case, that's what this is.
8 And that will make even the test a little bit harder, scene of
9 crime mark.
10
11
12
13
14
15
16
17
18
19
20
21
Q Sir, with respect to the third one on the top row, what
does that represent?
A That's a photograph of a mark in putty or something like
that. And you can see there you've got a lot of pressure on
the right-hand side. So in fact, when a person has actually
touched that particular substrate, all the pressure has gone
onto the right-hand side. That does cause problems. But that
has also been identified.
Q Sir, when you say pressure, we used the term distortion
earlier, is that the same concept?
A Yes yes, it is.
Q And could you please tell the Court about the last one on
22 the top row, far right?
23
24
A The last one is taken from a mark that was found on a
plastic bag. It's been subjected to what we call vacuum metal
25 deposition.
Page 59
Bayle - Direct 59
Q So the background noise would be what? 1
2
3
4
5
A The background noise in this case is all the creases made
when the bag is all scrunched up. And the examiner will
actually flatten the plastic bag and you'll see all those
creases. And that interferes with the ridge detail. This
6 particular mark was also identified. There is enough there to
7
8
make identification.
Q Now if we go to the bottom three, these are the FBI
9 latents. Were these actual FBI latents taken from the
10 materials you just testified about?
11
12
A
Q
Yes, they are.
And if we can start with the one on the far left, could
13 you tell us where that material came from?
14
15
16
17
18
19
20
A
Q
A
Q
A
Q
A
Could you move it on --
I'm sorry.
Okay.
I'm referring to this one --
-- you wrote something there --
Yes.
-- could you tell the Court what you wrote?
It's Number 1 taken from the year 2000. And that was
21 identified from the ten-print cards.
22
23
24
25
Q
A
Q
A
Now do you see any background noise there?
There's no background noise there whatsoever.
Any distortions there?
No.
Page 60
Bayle - Direct
Is there a lot of ridge detail?
60
1
2
3
4
5
6
7
8
9
Q
A There's lots of ridge detail. There's just so much, it's
10
11
12
13
14
15
16
and you've also got a little scar there, which is a good
indication as well.
Q And the little scar, could you explain or identify where
you see the scar there?
A The scar there is just on the right-hand side there at an
angle.
Q
Q
A
Q
A
Q
A
Okay. And if you take a look at the --
THE COURT: Could you point that out?
Could you point that out to the Court?
Yes, it's not a very good --
Come down here.
Yeah. Sure.
Please identify the scar that you've testified to.
That's a scar there.
17 Q Okay. Stay here, Mr. Bayle, please. And if you take a
18 look at the 1998
19 MR. PERRICONE: I'm sorry. What is it
20
21
22
23
24
25
A
Q
MR. RESTREPO: This will be the second one.
MR. PERRICONE: That's okay. Go ahead.
This is Number 4 in the 1998 --
Examination. Sir, is there any background noise in this
one or on this one?
A No. No--
Page 61
1
2
3
4
5
6
7
8
9
Q
A
Q
A
Q
A
Bayle - Direct
THE COURT: You'll have to speak up.
Please speak up.
It's nice and clear.
Are there any distortions?
There's no distortions at all.
How is the clarity?
Clarity is very good.
MR. PERRICONE: Your Honor, could we have a minute?
(Pause)
MR. PERRICONE: It's the wrong year and the wrong
number --
THE WITNESS: I'm sorry.
61
10
11
12
13
14
15
16
17
MR. RESTREPO: So we stand corrected. That would be
19 --
Q
MR. PERRICONE: That's 1999, Number 6.
MR. RESTREPO: Number 6?
Sir, with respect to this one, which is 1999, Number 6,
18 the middle one, again, I've asked you about distortion or lack
19 thereof and clarity and ridge detail. Is there any background
20 noise?
21
22
A
Q
No.
Is there anything else that you want to tell the Court
23 about that particular print?
24 A Well, it's very clear. And it's a twin loop, which is a
25 little bit obvious. An expert wouldn't have any problem with
,-
Page 62
Bayle - Direct
1 that whatsoever to identify.
Q Moving to the third one
62
2
3 THE COURT: Before we leave the one you just referred
4 to, which has now been reclassified as 1999, Number 6?
5 MR. RESTREPO: Correct, Your Honor.
6 THE COURT: And does the name Coffee still connect
7 with it?
8 MR. RESTREPO: Yes, it does.
9 THE COURT: So there was testimony, as I had it, that
10 a ten-print card of Coffee was used both in 1998 and 1999 --
11 THE WITNESS: And 2000.
12
13
THE COURT: -- and this was --
THE WITNESS: And 2000. It's also been used in 2001
14 but under a different name.
15 THE COURT: But the renumbering we've just done so
16 that we're now referring to 1999, Number 6, still refers to a
17 Coffee card used in 1998 and '99 --
18 THE WITNESS: Yes.
19 THE COURT: -- and 2000? And your current statement
20 is that in 2001 it appears under a different name.
21
22
23
24
25
THE WITNESS: It certainly does.
THE COURT: All right. Thank you.
THE WITNESS: Can I just refer to my notes?
MR. RESTREPO: Well, we'll finish this -
THE WITNESS: Okay.
~-
Page 63
Bayle - Direct
1 Q And this third print here, the 1996 -- you've identified
2 this as 1996 Number 2. Sir, is there any background noise in
3 that particular print?
4
5
6
7
8
9
A
Q
A
Q
A
Q
No.
And how is the ridge detail?
Very clear, lots of clarity.
Is there any distortion?
There's no distortion at all.
Is there anything unique about -- of particular merit or
10 importance with respect to this particular fingerprint?
63
11 A The reason I put a whirl there is because it was the only
12 whirl in the test. Unlike the twin loop, if you're going to do
13 a test like this, then all the cards should show whirls and
14 you'll make the test more difficult. At the moment, if there's
15 only just one whirl there, it just makes the test easier.
16 Q Can you identify what you mean by whirl?
17 A Just round and round and round. You see the circular
18 motion there of the ridges. That's what we classify as a
19 whirl.
20 Q Thank you, sir. You can go back up there.
21 THE COURT: Mr. Restrepo, I wonder whether people
22 need a recess. The witness or counsel --
23 MR. RESTREPO: That's fine, Judge. Whatever is the
24 Court's pleasure.
25 THE COURT: I'm perfectly happy to go on. But we've
Page 64
Bayle - Direct
1 been at it quite a while and I take it we're still quite a
2 while short of lunch. Why don't we take a five-minute recess
3 at this time?
4
5
(Recess)
THE COURT: Do you wish to continue, Mr. Restrepo?
6 MR. RESTREPO: Thank you, Judge. During the break,
64
7 for purposes of making the record complete, Mr. Bayle corrected
8 his clerical error. And the middle photograph -- the middle
9 latent print on defense Exhibit 2 is now labeled 1999 Coffee
10 Number 6.
11 BY MR. RESTREPO:
12 Q Mr. Bayle, during your direct examination, I asked you
13 quite a few times about repetitive the appearance of latent
14 prints repeating on various exams and palm prints repeating on
15 various exams. I just want to clarify that. Does that -- is
16 it your understanding that this is the exact same photograph
17 shown year after year or is this the same area of the same
18 finger?
19
20
21
22
A
Q
A
Q
No, it's the same area of the same finger.
That has been reprinted, so to speak, or printed again.
That's right.
And would that be the same for the repeat appearance of
23 the palm areas?
24 A That's right.
25 Q And that would also, I take it, apply to the hypothenar
Page 65
1 area.
2 A
3
Bayle - Direct/Restrepo/Cross/Saramousakis
Is that correct?
That's correct.
MR. RESTREPO: Your Honor, we have no further
4 questions for Mr. Bayle.
5 THE COURT: All right.
6 MR. SARAMOUSAKIS: Your Honor, if I may, Paul
7 Saramousakis.
8 THE COURT: Mr. Saramousakis.
9 CROSS EXAMINATION
10 BY MR. SARAMOUSAKIS:
11 Q Sir, let's stay with that last point, because I was
65
12 somewhat confused. You were saying, so we all understand, that
13 to the extent that any particular latent -- that is duplicated
14 from the same donor -- exists, it is a different either rolled
15 or developed latent. Correct? Developed mark.
16 A Developed mark.
17
18
19
Q Okay, so -- and you would also agree, I take it, like the
defense has said, that every time a finger is deposited or
rolled, there are differences in the impressions that are
20 genera ted. Correct?
21 A
22 Q
That's correct.
All right. Now, sir, I noted from your web site that you
23 list yourself as Britain's leading authority of forensic
24 ridgeology. Is that correct?
25 A That's what I've been told.
Page 66
Bayle - Cross/Saramousakis 66
1 Q I understand.
2 A Let's go a little bit further than that. The last --
3 Q Well, I just asked you yes or no questions. We can follow
4 up.
5 THE COURT: Well--
6 MR. SARAMOUSAKIS: All right. I'm sorry. I'm sorry
7 to interrupt, Your Honor. Go ahead, sir.
8 THE COURT: Let's let the witness finish his
9 statement.
10 A I was the first one in the U.K. to go on a ridgeology
11 course in America. When I returned back to the U.K., I had to
12 do a report to the Director of Identification for England and
13 Wales. While in my training, I was asked to design a
14 ridgeology course and begin teaching it, which I have designed
15 the course for all experts in the U.K. I also was responsible
16 for reporting to the Association of Chief Police Officers
17 advising them on future training of fingerprints in the United
18 Kingdom. Nobody else has done that, and I think at the present
19 time I'm also the only one that's practicing ridgeology in
20 scientific reports in the United Kingdom. Might answer your
21 question.
22 Q Thank you, sir. If you took my question to mean some kind
23 of -- I was going to agree with you that you were so --
24 A
25 Q
Sorry. I thought you were being --
If you took it otherwise, I apologize.
Page 67
Bayle - Cross/Saramousakis 67
1 A No problem.
2 Q Now, the -- now, obviously, and perhaps not obviously, but
3 you learned this ridgeology from Dave Asbaugh. Correct?
4 A Yes, and I've worked on him on the Lockerbie case.
5 Q Okay. Dave Asbaugh, as you know, was one of the
6 government's experts at the Mitchell case.
7 A I certainly do.
8 Q Okay. Now -- and it is also correct, sir, that in your
9 field and what you teach is the methodology that has been
10 spoken about in this Court and in Mitchell, as you know,
11 A.C.E.V.
12 A
13 Q
That's correct.
Okay, and that is a methodology that you believe in.
14 Correct?
15 A
16 Q
17 A
18 Q
It is.
You believe it's reliable. Correct?
It is.
And you use it day in and day out in your work
19 assignments. Correct?
20 A
21 Q
That's correct.
Now -- well, indeed you used that -- let me back up.
22 you actually take the FBI proficiency test?
23 A No.
Did
24 Q So you have all the materials, including the answers, when
25 you reviewed those materials?
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I A
2 Q
3 A
No answers.
No answers.
No answers.
Bayle - Cross/Saramousakis
4 Q Fine, so then in order to come to the opinions that a
68
5 certain donor on one card was the same as a donor on the other
6 card, you actually had to use the A.C.E.V. method to determine
7 that. Didn't you?
8 A
9 Q
10 A
11 Q
12 A
13 Q
14 you
15 A
16 Q
Could've come to that. That's without the A.C.E.V.
I'm sorry?
I could do that without then using A.C.E.V.
You could?
Yea.
All right. Well what portion of A-C -- well, obviously,
didn't have somebody verify it. Correct?
Correct.
Okay. Did you perform the -- an analysis of the one
17 latent and then an analysis of the second latent?
18 A
19 Q
Yes.
Okay, and did you do a comparison of the first latent that
20 was in one test with the second latent that was in another test
21 that was the same donor?
22 A
23 Q
Yes, but I recognized -- recognized -- but yes, I did.
Okay, and at some point your -- some point in time your
24 brain said they're the same donor.
25 A Yes, because when you're looking, the brain takes all that
Page 69
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1 information in.
2 Q Right. Exactly so. Now -- and you did that in each one
3 of those multiple donor situations that you described after
4
5
counsel questioned you.
A That's correct.
Correct?
69
6 Q Okay. Now -- and let's get to this. You heard Mr. Smith
7 testify -- Ken Smith -- about clerical errors. Correct?
8 A Certainly.
9 Q
10 A
Are they common?
Well, let's put it this way. If I make a clerical error
lion a fingerprint ident, I am brought before my senior officer,
12 and it goes against me. If I keep making mistakes, I would be
13 fired.
14 Q My question was -- well let me ask it the other way. Are
15 clerical errors uncommon?
16 A I suppose no, yes.
17
18
19
Q Okay, and yet dealing with three latent prints today or
whenever you prepared that, you made one clerical error.
Correct?
20 A On the yes.
21 Q Okay, and isn't it also true, sir, that clerical errors,
22 to the extent that they do happen, would be normally caught in
23 the verification process?
24 A
25 Q
That's correct.
Now I want to talk a little bit about your testimony about
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1 the difficulty of the latents. I take it your testimony with
2 respect to the latents would be similar with respect to the
3 known exemplars. That they're pretty clear, not too much
4 distortion, not too much background noise.
5 A That's correct.
6 Q Okay, and with respect to the known latents, that's
70
7 usually the case. Isn't it? That they are pretty clear, don't
8 have back -- much background -- not much distortion?
9 A Are you talking about the prints now?
10 Q I'm talking about the known's -- the exemplars -- the
11 tempering cards.
12 A The tempering cards.
13 Q
14 A
In the normal course they are.
15
16
17
18
19
Providing the police officer takes your property, yes.
Q And you see plenty of tempering cards that have been taken
improperly that could be worse than the latents that you're
trying to compare them to. Isn't that correct?
A Yes, I've taken marks that could've been better than the
prints.
20 Q All right. Now let's stay with the latents for a second.
21 You made various statements -- and I just want to understand
22 what you actually intended. Is it your testimony that after
23 reviewing all the tests that the test does not challenge the
24 examiner?
25 A Yes, that's correct.
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1 Q It doesn't come close, does it, to what a certification
test would be?
A If these are the certification tests, then they're not
very good.
2
3
4
5 Q Okay, but we know that they're proficiency tests.
6 A That's right.
71
7
8
9
Q Okay. You wouldn't give anything like that in England to
somebody you're trying to get certified or to see if they're
certified?
10 A No, there's nothing like it.
11 Q Fine, and, sir, you've talked about proficiency tests and
12 talked about whether they're hard or not. What experience do
13 you have with proficiency testing?
14 A Okay. I had to do something similar to this for the
15 basics for recruits when they first come in, and I don't even
16 give this to recruits. They have actual scene of crime marks,
17 and I test them on that.
18 For experts I will use four or five tempering cards
19 of the same patterns. Four or even five of the marks will be
20 not identical, and it's the degree of -- they have to look at
21 that, and you don't need too many cards. It's -- you're going
22 to put ten. You don't need that many, but there's one big
23 thing I found with these. They are not telling me how they
24 explain they came to their conclusions, and when you're doing
25 something like this, there must be another column there that
Page 72
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1 tells me that they're competent enough and explain to me why
2 they think those marks are identified.
3 Q So you're talking you'd like to see something more like
4 actual case work where it's documents in the case file on the
5 worksheets.
72
6 A You can come to reality. This is the real life situation.
7 This is not real life situation. These are manufactured.
8 not good enough.
9 Q I understand, and I started this by asking you what
It's
10 experience you have with proficiency testing. I understand,
11 isn't it correct, that U.K. does not proficiency test. They
12 retest every four years.
13 A No, we looked at particular sets from America. They're
14 too easy, and we dropped it, and what we do now, we test the
15 persons throughout their career. We have to do reports on
16 them. We keep an eye on them. If they make a mistake, it goes
17 against them.
18 their job.
If they make the same mistake again, they lose
19 Q And that's very similar to what the FBI does. Isn't that
20 correct?
21 A
22 Q
I don't know what the procedures are for the FBI.
Oh, all right. Well, when you talked about keeping an eye
23 on them, is it the practice in the U.K. to do technical case
24 reviews? That is after an examiner has been finished at some
25 point in time during the year, you would go back and examine
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2
3
4
5
6
Bayle - Cross/Saramousakis
some sampling of that examiner's work.
A Yes, that's being done now by the home office by -- a
government body's been set up.
Q Okay, and would it -- and you heard the testimony from
73
Meagher that the FBI does that everyday -- every year for each
examiner. Correct?
7 A
8 Q
Yes.
Okay, and I'll ask you a question and see if you know it.
9 Is that kind of review, in your mind, more informative than
10 taking any proficiency test? And I want to differentiate here.
11
12
13
14
15
16
17
18
19
20
21
22
23
I'm not talking about certification tests. I'm talking
proficiency. Case review gives you more information and is
more of a validation study of that particular examiner than a
proficiency test. Wouldn't that be correct?
A Yes, I agree with that.
Q Okay. Now I -- I'm not sure if you can answer this,
because I don't understand you to have much experience in
proficiency testing or in taking proficiency tests, but let me
try. If the FBI's goal in proficiency testing -- and, by the
way, you'll agree with me that the agency or the organization
sets its own goal for what they want to test. Proficiency
tests are made up by them, and they determine what they want.
Isn't that correct?
24 A
25 Q
It depends what they're looking for, yes.
All right, and if the FBI is looking for reaffirmation
Page 74
Bayle - Cross/Saramousakis 74
1 that an examiner can take a test, locate the proper area on the
2 known's, take a mark -- as you say, take a mark, look at that
3 mark, and find the proper area somewhere in the known exemplars
4 and make 1.0. 's, doesn't that test do that?
5 A Look, this stuff here is
6 Q Or exclusions for that matter.
7 A This stuff here is basic stuff.
8 Q I understand, but can you --
9 A And to me, to give this to an expert, it's a joke. It's a
10 joke, and I'm not going to bat about this.
11 this to my experts. It does not test them.
I would not give
It's too easy, and
12 that's what I'm telling you.
13 Q Okay. Now can I -- do you think I could take that test
14 and make any of those identifications? And I'll admit I have
15 no training whatsoever.
16 A No. No, you've got to be -- you've got to know your
17 stuff.
18 Q All right. You have to know your stuff.
19 A I'll give you a six-week course, and by that time I can
20 guarantee that you'll be able to do them.
21 Q Each and every one?
22 A Each and every one.
23 Q Oh, good. Let me show you
24 MR. SARAMOUSAKIS: If I can approach the witness,
25 Your Honor.
Page 75
Bayle - Cross/Saramousakis 75
1 Q latent number ten from the year 2000 test. Well, you
2 have it in front of you.
3 easier.
Do you want me -- here, I'll just go
4 (Pause)
5 Q Would you take a moment or two -- whatever time you need -
6 - to analyze that latent?
7 A
8 Q
Yea, it's part of thenar.
Okay, and what is the level is that an easy one as
9 well?
10 A Well, you've got so many creases in it.
11 good clue.
12 Q
13 A
A good clue if you could find the area.
Yea, it's -- this is by thenar.
It's a not so
14 Q Right. Okay. My question to you is, is that easy?
15 A It's easy in the sense that you've got all the clues of
16 the creases. All right? If you're an expert -- and I don't
17 think Mr. Meagher may know about ridgeology and whatever, and
18 he must have taught them, because he's done all this sort of
19 thing -- and you look at that, I mean that tells me right away
20 it's the thenar area. The amount of creasing there is a very
21 good indication, and even if you identify that on the creases
22 alone, never mind the detail that's in it.
23 Q
24 A
25 Q
Okay.
All right?
All right. Can I have that back?
Page 76
Bayle - Cross/Saramousakis
(Pause)
Q You agree with me, sir, that -- is this more difficult
than the average easy ones that you've looked at in those
exams?
76
1
2
3
4
5 A Let's put it this way. If the palm print's that good, you
6 can identify it on the creases alone.
7
8
9
Q Well, the -- well, okay. Let me go on a second, but
you're suggesting to me that after six weeks of training I
would be able to find this area and make the identification?
10 A
11 Q
12 A
No.
What you are saying?
No, because six weeks I'm talking about basic
13 fingerprint training -- ridge characteristics. Now then, if
14
15
16
you're coming to your expertise, like Mr. Meagher's been doing
these tests, they should be able to identify those creases.
Q Okay.
17 A
18 Q
They're experts.
So what you're saying is that somebody trained a
19
20
21
22
competency?
A Yes.
Q Should be able to make all these identifications that you
talked about?
23 A Yes.
24
25
Q Okay, and I want to be clear. You said long the way that
you didn't think that any -- and if I'm wrong, let me know --
Page 77
Bayle - Cross/Saramousakis 77
1 that any of the latents that were developed -- that were
2
3
4
5
6
7
8
9
10
11
developed for the purpose of those tests compare in any
favorable way with what you might find at a crime scene.
A No, the majority -- I mean I'm a forensic scene examiner.
The majority of the times I've been to do an examination, and
most of the times you'll get the sub-straight -- and if there
is a sub-straight there, you do your damnedest to get that
background in there, so that when you go to Court, it actually
proves that you've got that lift from that particular surface.
Does that answer your question?
Q Yes, I'm not sure you -- I think my -- what was my -- I
12 was mesmerized by the answer. I think what I was asking was
13 that you -- I wanted to know whether you meant by your
14 testimony that each and everyone of the latents that was
15 generated for the purposes of those tests would not be found at
16 a crime scene -- that type, that clarity, that -- no sub-
17 straight, no background, no distortion, no pressure.
18 A Unless you get a lift off a very smooth surface like a
19
20
21
22
23
glass surface, then it'll be very similar to that. I mean you
-- some scenes you will go to, you'll get what I call a copper
plate mark. I mean it happens. An fact witness -- you go to a
scene and you actually see that, and you think, "Oh, great.
I've got him."
24 Q Well when you say you've got him, it's clear. It's got no
25 distortion. All right, so --
Page 78
1 A
2 the
3 Q
4 A
5 Q
6 A
7 Q
8 A
Bayle - Cross/Saramousakis
But it does happen. It does happen. I mean not all
That's all I'm asking you.
It happens.
It happens.
And you've developed them at crime scenes.
I have.
Okay.
Not very often, but I have.
9 Q Okay. The -- and with respect to the ones that you
78
10 develop at crime scenes, you go -- you -- if they are -- do you
11 -- in England do you use the term latent of value? How do you
12 identify a latent that has sufficient information to perform a
13 comparison? Is there a word for that?
14 A
15 Q
16 A
17 Q
Well --
Or do you know what latent of value means when I say it?
If there's sufficient data to lift, yes, I'll lift it.
Okay, and then the lifting, you may destroy some of the
18 detail, and then you'll have to further make a determination as
19 to whether or not you can use that latent for comparison
20 purposes.
21 A I've never had that problem.
22 Q You've never had that problem?
23 A No.
24 Q So you've never put too much dust on a lift?
25 A Well, you -- listen. When you're all the examinations
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2
3
4
5
6
7
8
9
10
11
Bayle - Cross/Saramousakis
I have to take to become a forensic scene examiner, you are
taught how much powder to put on, look at the surface,
79
experiment to see is the sweat still glistening. If it's still
glistening, you wait til it dries out, or you dry it out. All
right? You've got to look at each case individually, if that
answers your question.
Q Did you okay. That does, and indeed when you're
conducting what you do day in and day out, you have to deal
with one latent at a time. Isn't that correct? I mean you
what you have before you is what you have to deal with. You
have a latent, and you have perhaps some known's -- exemplars.
12 A
13 Q
At the scene you mean?
Well, when -- no, when you're doing your A.C.E.V.
14 analysis.
15 A Yes. Yes. You'll have lots. I mean I can go to a murder
16 scene, have between two and 300 marks. One of those marks will
17 probably be ident. The rest of the marks will not be either
18 due to legal access or people that we don't know who's been
19 into the scene.
20 Q Fine, and in order to get that one that's an 1.0., you
21 have -- or to limit it and say there's only one 1.0., you have
22 to literally examine those 300 latents -- those 300 marks. You
23 have to analyze them and go through the A.C.E.V. process to see
24 if there's a -- well, the A.C.E.V. part, A-C-V, not the
25 verification, because you don't -- you don't verify exclusions.
Page 80
Bayle - Cross/Saramousakis 80
1 Do you?
2 A
3 Q
Well I wouldn't do it if I'm the first person or whatever.
Now -- and when you go through this process and you get
4 your 1.0. you say it's a positive 1.0. -- that's the
5 exclusion of the world. Correct?
6 A That's right.
7 Q Correct. Okay. I did -- I wanted to show you something
8 else here. Let me show you what's been marked -- and it may be
9 admitted already.
10
I'm not sure -- R-13. R-13.
(Pause)
Have you seen that before? 11 Q
12 A Only what was showed to me previously. I think it's the
13 same one. It looks like a shorter or smaller version. Yea,
14 it's a smaller version of one I've seen already I think.
15 THE COURT: I think I'll have to ask you to speak up,
16 because
17 THE WITNESS: Sorry.
It's a smaller version of the one I've seen. 18 A
19 Q And the one you've seen is the one -- did you see it in
20 Court yesterday? Is that what you were referring to?
21 A Yes.
22 Q Okay. Is that -- that was R-14, the blowup of it.
23 A That's right.
24 Q Okay. Fine. Thanks. Now did you have a chance to look
25 at the blowup yesterday or examine it or not?
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Bayle - Cross/Saramousakis
1 A I looked at the blowup, yes.
2 Q Okay. Would you take a moment, a few moments, whatever
3 time you need there, to analyze that one?
4 A Which area did you want me to analyze? The whole lot?
5 Q Well, as you did the FBI latents.
6 A Yea, but you can't
7 Q The general --
8 A Hold on a minute. Hold on a minute. You can't compare
9 this with the test, because you've got so much surface area.
10 Now then, if you take a little piece out like this, okay, now
11 you're talking. If you want me to do the whole lot all at
12 once, well, that's fine. There's plenty of detail there.
81
13 Q Well you're answering my question. The -- you understand
14 that, that was an actual lift from the cases that's going to be
15 tried before the Court. Do you understand that?
Right. 16 A
17 Q Okay, and that has more information, does it not, than any
18 of the latents that were in the test?
Oh, yes, because you have a bigger surface area. 19 A
20 Q Fine, and well, I guess -- how does that compare to your
21 statement that you don't get that kind of quality and volume
22 a crime scene? That's a crime latent.
23 REST: Object. All right. Withdraw.
24 A Well, I'm not saying that every crime scene you get a
25 perfect mark or whatever. There will be some scenes that --
at
I
,-
Page 82
Bayle - Cross/Saramousakis 82
1 mean I've seen terrible marks which I've had to identify --
2 anti-terrorist marks or whatever -- which even the fingerprint
3 bunch could not do which I've had to do. Okay?
4 Q And then you've taken them -- those very difficult latents
5 and I take it they were small fractional portions of
6 friction ridge -- and made identifications. Correct?
7 A That's right. I mean this is -- you can't compare this
8 with the test. Okay?
9 Q What? Let me -- isn't it correct that what you're looking
10 at right there is much easier than the latents that are in the
11 test?
12 A
13 Q
Yes.
Fine, and did you at that -- did you look at the labels
14 there? Can you tell me what that line going through the --
IS through that print is? Describe that print for us, so we have
16 a record of it. It's what? It's four fingers, most of a palm
17 but no thumb.
18 A Correct. I don't know what surface it's come from.
19 Q Well, look at the photograph. I think it tells you.
20 A Front top of door.
21 Q Top of the door of a car.
22 A Roof of vehicle. From a vehicle.
23 Q A Taurus -- Ford Taurus. Correct?
24 A Yea, it's also been taking, by the looks of that -- now
25 you see, you've got background noise on that. That tells me
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3
4
5
6
7
8
Bayle - Cross/Saramousakis 83
there that all the brand parts of that is where it's been wet,
and the powder's actually adhered to the dampness of the
vehicle.
Q If I suggested to you that, that line through that is
actually the portion of the roof right above the door where the
rain gutter is, would that be consistent with what you're
looking at now?
A If it's shaped like that, yes. I don't even know what
9 American cars are --
10
11
12
MR. SARAMOUSAKIS: Thank you, sir.
THE WITNESS: Okay.
MR. SARAMOUSAKIS: Your Honor, if I could have just a
13 minute to gather my organizational
14
15
16
17 Q
THE COURT: Certainly.
MR. SARAMOUSAKIS: -- skills or lack thereof.
(Pause)
Oh, I did want to -- there's something else. If I were to
18 tell you that the known exemplars in those tests were
19 fictitious names, and that these
Well I know that anyway.
You know that?
20 A
21 Q
22 A Well yea, for the names I mean, "Oh, I robbed a bank." I
23
24
25
mean it's a bit obvious.
Q Right, and I think it's Maxwell T. Smart, one of them.
That's on re-runs over there in England. Isn't it?
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Bayle - Cross/Saramousakis
Maxwell Coffee and all the rest of them, yes.
2 Q Right. Okay. The -- and obviously the examiners that
3 take those exams know that. Don't they?
4 A
5 Q
6 A
Yes.
Yea.
Yea. Yea.
7 Q I just question whether or not from one year, going from
8 1999, and then a year later, after perhaps making thousands and
9 thousands of comparisons, that an examiner, even the best of
10 them, would be able to remember a pattern from Maxwell T. Smart
11 from one year to the next.
12 A Well it's -- and that's the reason why, because it's so
13
14
15
16
17
18
19
20
21
22
23
24
25
comical, and to me it -- you're not taking the test seriously.
Now then, I looked at the C.T.S. test as well. There's no
names on those, and it's very good, and we found out, after
putting names on there, that recruits remembered. I know you
said hundreds, but look, a mark to me is a face. All right?
And I'll remember that face. Now if you're face -- the nose
and the eyes are missing, it's going to make it harder.
These tests here -- let's give you a similar thing.
Say you're going to tell me that you've got a zebra, and here
we've got a zebra, a giraffe, an elephant, and a buffalo, and
I'll say to you, "Which animal is that?" You're going to tell
me it's a zebra. Okay. If I say to you, "Right. I've got
four zebras," which one is it, and that's the difference, and
--
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Bayle - Cross/Saramousakis
1 some of these -- to use anyone pattern or one first of a
2 detail and some of the other forms are different patterns, I
3 mean that really does make a -- the situation of the test --
4 it's bad. It's bad. I mean I've set tests like these, and
5 even for experts, you've got to -- they've got to prove to me
6 that they -- what they're telling me is what they understand,
7 and this to me, they're not -- this is not testing an expert
8 I'm afraid. It does not test him at all.
9 Q And when you say with respect to the C.T.S. exam, do you
10 find them -- you find them much more compelling -- a better
11 exam?
Yes, they're much harder.
Much harder?
85
12 A
13 Q
14 A Yes. Yea, and they're real scene of crimes marks as well,
15 by the way.
16 Q
17 A
18 Q
19 A
Pardon me?
They're real scene of crime marks.
Well, do you know that to be so?
Well you can tell by the -- you've got Ninhydrin marks
20 there. They've got other marks there. They look like scene of
21 crime marks.
22 there.
I was quite impressed with one of the tests
23 Q So you would be surprised to learn that they were
24 generated latents just like the FBI.
25 A I would be very surprised, but I can't see the name -- not
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86
1 they cover up the name, so I know that it's an actual scene
2 of crime mark.
3 Q Okay. Were you here when Mr. Smith testified?
4 A In parts of it, yes.
5 Q Then you missed part where he said they developed -- they
6 make up these latents, and he actually picks them out?
7 A I didn't hear that.
8 MR. SARAMOUSAKIS: Okay. All right. If I could have
9 one second, Your Honor. I think we can finish up here.
10
11
12
13
14
15
16
17
18
THE COURT: Surely.
(Pause)
MR. SARAMOUSAKIS: Nothing further. Move R-13.
MR. RESTREPO: No objection.
THE COURT: All right.
MR. RESTREPO: Could we have just one minute, Judge?
THE COURT: Yes.
(Pause)
MR. RESTREPO: We would just -- we would move our
19 defense exhibits. I forgot to do them when we finished -- 0-IA
20 through G and 0-2 which is the overhead prepared by Mr. Bayle.
21 We move that in evidence, and we have nothing further of Mr.
22 Bayle, Your Honor.
23
24
25
THE COURT: Any objection.
MR. SARAMOUSAKIS: No, Your Honor.
THE COURT: All right. Those are admitted.
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1 MR. RESTREPO: Judge, I just spoke to Mr. Perricone.
2 Mr. Perricone suggested, and we agree, this might be a good
3 time to break, and we can also work out the stipulation that we
4 discussed in the back this morning.
5 THE COURT: All right. That seems good. You have at
6 this point I take it no redirect of this
7 MR. RESTREPO: That's correct, Judge.
8 THE COURT: Mr. Bayle, will you be with us this
9 afternoon?
10 THE WITNESS: I certainly will, sir.
11 THE COURT: All right. I may have a question or two
12 for you after lunch.
13 MR. SARAMOUSAKIS: Your Honor, if I may, I'm not --
14 if the Court wishes to go forward now, I'm not precluding it.
15 I thought that everyone was finished with the witness, but if
16 the Court wishes to ask the questions now, obviously, I can
17 wait. Thank you.
18 THE COURT: No, I want to take that condensed six-
19 week course before daring to put a question. No, this would be
20 a fine time to recess. Shall we resume at two? Does that give
21 counsel enough time? Do you want to make it 2:15?
22
23
24
MR. RESTREPO: Can we get 2:15, Judge?
THE COURT: Two 15.
MR. PERRICONE: We'll have to work on this matter as
25 well. Thank you.
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2
3
THE COURT: Sure. All right. We'll resume at 2:15.
(Recess)
4 friends.
5
6
THE COURT: Please sit down. Please sit down,
Well I hope the interval was useful for you.
MR. EPSTEIN: Yes.
THE COURT: Were you able to -- counsel able to
7 arrive at any arrangements?
8 MR. EPSTEIN: Yes, we have established a protocol
9 proposing certain questions that will facilitate the
10 presentation from a particular witness.
11 THE COURT: All right.
12 MR. EPSTEIN: Whatever that meant.
13 THE COURT: That was so elegantly stated, counsellor.
14 It might have come straight out of Westminster. I anoint you a
15 barrister right now. All right, and I take it that's not a
16 protocol that needs to be explored any further.
17
18
MR. EPSTEIN: That's correct, sir.
THE COURT: Good. Well, with counsel's permission,
19 I'd like it if we could ask Mr. Meagher to come back for a
20 couple of minutes to the witness stand. Mr. Meagher. Welcome
21 back, sir.
22
23
MR. MEAGHER: Thank you, Your Honor.
THE COURT: Just a couple of matters I wanted to
24 clarify, Mr. Meagher.
25 MR. MEAGHER: Sure, Your Honor.
Page 89
Meagher - Court 89
1 THE COURT: Mr. Meagher, you'll note I said with
2 counsel's permission, but I think I can tell you confidentially
3
4
5
6
7
8
9
10
11
12
13
that I don't really care whether counsel permit it or not.
STEPHEN MEAGHER, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
EXAMINATION
BY THE COURT:
Q Mr. Meagher, in the course of your testimony you said, as
I may -- if I recall correctly, in response to questioning from
Mr. Perricone that in substance you were unaware of any
mistaken identifications testified to in Court by FBI
personnel. You're unaware in terms of your own knowledge and
to the extent that you had consulted with colleagues no such
incidents had come to your attention.
14 A
15 Q
That is correct.
That is correct, and you may remember that, that was a
16 question which defense counsel, Mr. Epstein -- Mr. Jules
17 Epstein who I just anointed a barrister -- complained about,
18 and we had a little discussion as to whether your testimony on
19 that subject was of any evidentiary significance, and I don't
20 mean to revisit that, but I did want to ask you this.
21 In the trials in which you testified, sir, as a -- as
22 a fingerprint examiner, fingerprint specialist, giving
23 testimony identifying a latent print to a known print, these I
24 presume were all or at least almost all criminal prosecutions.
25 Would that be not the case, or --
Page 90
Meagher - Court 90
1 A Yes, if not all, just about all of them. I'm trying to
2
3
4
5
think if I've testified in a civil matter,
at this time.
been criminal.
I believe not, Your Honor.
and I can't recall
I think they've all
Q Now there would've been what, scores of such cases in
6 which you gave testimony?
7 A Well I've testified approximately 70 times. The last five
8 or six are in hearings like this that don't directly involve an
9 identification, but all the prior ones to that have been, and
10 that there have been cases in which there have been numerous
11 identifications effected in those cases, sometimes against just
12 one defendant, sometimes against several defendants as well as
13 identifications of victims and identifications with other
14 individuals who were like residing in a residence or something.
15 Q And I suppose sometimes it may be that you're testimony
16 included exclusions as well as identifications. Isn't that
17 right?
18 A
19 Q
Yes, sir, absolutely.
In the instances in which you were a witness in a criminal
20 case offering testimony identifying a latent print as a print
21 made in your opinion by the accused, in those instances I
22 wonder if you recall whether there were some of those cases in
23 which the defendant wound up being acquitted?
24 A I can't say for certain, Your Honor. I don't know, but I
25 wouldn't be surprised if there was a case where a defendant was
Page 91
Meagher - Court
1 acquitted, but I can't speak for certain. Many times I leave
91
2 the Court before the trial is completed, and many times, to be
3 honest with you, I don't know if I've heard the outcome of
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
every trial I've testified in.
Q Well, that doesn't surprise me. I suppose somewhere if
one was -- were in a position to collate all of the information
that's available to various of the agencies of the Department
of Justice, one could be able to aggregate all the information
and get something like an answer to my question. I'm -- but
I'm not at all surprised that you don't have any personal
awareness.
A I certainly wish I'd be able to give you a more conclusive
answer than this.
Q Now, let me ask you with respect to criminal prosecutions
in the United States not involving FBI fingerprint
identification testimony -- and here in general I guess I'm
putting the question probably in terms of State prosecutions
do you have any awareness -- and here I take it, it would
likely to be second or third hand. Do you have any awareness
of instances there in which testimony -- identification
testimony turned out to be mistaken?
A Yes. Here in the United States or anywhere regarding
fingerprint identification?
24 Q
25 A
Well first let's try here in the United States.
I -- the answer to that is I believe so, yes, and to cite
Page 92
Meagher - Court 92
1 an exact case, I can't do that for you, but when those kinds of
2 issues occur, they certainly do make the rounds within the
3 community, and the practitioners are very aware of it, and the
4
5
answer to that is yes. Yes, there have been erroneous
identifications testified to in court here in the United States
6 by those other than the FBI. I certainly don't want to imply
7 that there's many, but I am aware of a few.
8 Q
9 A
Right. Any in recent years to your --
The first one that comes to recollection is I believe
10 there's one right here in Philadelphia in which ultimately the
11 prints did come to the FBI for confirmation verification or for
12 us to render our own independent decision. There's others that
13 apparently have occurred that over the course of the many years
14 the use of fingerprints by the -- at least since the FBI's
15 become involved since 1933 and the FBI laboratory and over the
16 course of years I've heard of, you know, cases where there have
17 been erroneous identifications testified to in court.
18 Q I see. All right. Let me shift to another subject, Mr.
19 Meagher. At one point in your testimony, as I recall it, you
20
21
22
23
24
25
said that there was no scientific basis for insisting upon a
minimum number of points to be found in common between a latent
print and a known exemplar.
A Galton points, yes, sir.
Q Galton points. Now I was just trying to make sure that I
understood what that meant. Would one not have to have at
Page 93
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1 least one Galton Point common to both?
93
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4
5
6
7
8
9
10
A In theory, and then I'll answer the question in reality.
In theory, if one is to believe the basis that each friction
ridge is unique and permanent, which is what we do, a
continuous ridge that does not have an ending ridge or a
bifurcation to it, in theory can be identified just based on
the actual ridge attributes -- its ridge width, its shapes, its
pore structure and so forth.
In reality we don't practice that in the discipline
simply because of all the thousand of ridges located across the
11 hand and fingers. It's a practical it's impractical to try
12 and even locate the area from which to do that, and usually the
13 qualitative side of the equation more times than not would
14 prevent from that occurring.
15 Now, what is really essential is, is that one must
16 take all three levels in an aggregate in order to begin to
17 formulate an identification decision, so to try to and break it
18
19
20
21
22
23
24
25
down between which level or which amount of information is
relied upon more heavily or more importantly is really totally
dependent upon the impressions and question that you're dealing
with. Because fingerprints are unique, the ridge level as well
as the pattern arrangement level, every time you're looking at
a different impression, whether it be of the same finger two
different impressions from the same finger, or different
impressions from different fingers, you're always confronted
--
Page 94
Meagher - Court 94
1 with a different set of information that you must be able to
2 analyze properly, and the question then remains is what is the
3 ultimate criteria that you have to use. Well, it's going to
4 vary from print to print to print, but ultimately you're
5 looking for is the agreement and the absence of any
6 dissimilarity.
7 Q So most of the time in the real world you would be finding
8 you would be looking for and relying on one, two, three
9 Gal ton points.
10 A Most definitely. Counting of points is part of the
11 process. I just don't want to leave the impression that it's
12 the only process. So, yes, when you are looking at the
13 aggregate of information, the counting of point is part of it,
14 yes.
15 Q But you tell me in theory there could be instances in
16 which identifications could be made without such commonalities.
17 A In theory, based on the biological sciences and what we
18 know about the physiology of friction ridge skin, that's
19 possible, and I would certainly hope that some day, as
20 technology improves and our ability to capture images in three
21 0 impressions, we can certainly strive to go there, but right
22 now I do not want to leave this Court with the impression that
23 we can do that today. No, sir.
24 THE COURT: Sir Francis Galton would be a little
25 unhappy to find that even in theory anybody could do without
Page 95
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1 his points. Is that right? Yes.
2 Q Now, Mr. Meagher, you probably remember a good deal of the
3 testimony you gave way back -- I guess it's three years ago now
4 in the Mitchell case, and some of that you gave, and perhaps
5 in more summary form, yesterday. I wanted to ask you about
6 this, because I would find it helpful to get some explication
7 of it. In answer to -- this goes back to testimony you gave in
8 July of 1999 -- July 8th -- and in answer to a question put I
9 suspect by Mr. Saramousakis -- I may be wrong on that, but I
10 meaning no disrespect to counsel, I don't have the question
11 with me, but I have a rather lengthy answer, which I'll break
12 into. You said this. "Comparative process must into account a
13 minimum level one and level two, and to just look at level two
14
15
16
17
18
19
20
21
22
23
24
25
information and exclude level is not even proper.
So in discussing number of points needed, the simple
counting of point is just not appropriate, and you must, first
of all, even account for level one information. But the FBI
has certainly been practicing the quantitative qualitative
comparative process I became trained. I was trained that way,
and then looking back on some of the historical aspects of the
Bureau it was never a specific number was required," which I
think is very consistent with what you've said.
Then you went on to say, "They did truly practice a
quantitative qualitative --" and then counsel intervened to
say, "Required for what?" And your answer was this, "Required
Page 96
Meagher - Court 96
1 to individualize. There have certainly been a number of points
2 requirement in terms of a quality assurance effort. We have
3 today what's referred to as a 12-point quality assurance issue,
4 and that is generally speaking at the level two information.
5 That is saying when you start to go below that, that requires a
6 close scrutiny by a supervisory examiner or more senior
7 examiner simply as a quality assurance mechanism.
8 nothing to do --"
It has
9 Question, "Would that be an addition to the normal
10 verification that you talked about or that has been talked
11 about?"
12 "Yes, it is as I implied, a quantity. A quality
13 assurance measure that we have implemented. It does not -- it
14 did not -- it did by no means imply that you cannot
15 individualize unless "
16
17
18
19
20
21
22
23
24
25
Well, I read you all that at length, Mr. Meagher.
Can you give me a little more of an idea of how that 12-point
quality assurance process plays in?
A Sure. Most certainly. The FBI we have a quality
assurance manual, and what we're saying here is that we want to
insure that whatever identifications are affected that we are
certain that they are, in fact, made by the finger of the
individual or the palm of the individual that we're claiming
that it is, and just as a guideline from a quality assurance
perspective, which is separate then the criteria for which to
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Meagher - Court 97
make an individualization decision, we want to insure that our
examiners are -- when an identification is effected on a
minimal amount of information and the question is how you
define what minimal amount is and we arbitrarily picked a
figure of 12 that's saying that is that if you have less than
12 Galton detail, then it should be reviewed by a supervisor,
and, therefore, it's going to provide another level of
verification to that identification.
Identifications are made daily on less information
than that in terms of less number of information of Galton
11 detail. They might have tremendous amount of additional
12
13
14
15
16
17
18
19
20
21
information in terms of level one or level three detail, but
it's a guideline. It's a guideline that says when you're
looking to count points is just one criteria -- one of the many
criteria that we can utilize. This is the one that we've
selected to implement for a quality assurance process. So I
know over the years I've made many, many identifications on
less than 12 points, had it verified, reviewed by a supervisor
before it went out on official report, and it's just an extra
level of quality assurance to make sure that there are no
mistakes.
22 Q You say you've had it verified and then reviewed by a
23 supervisor.
24 A
25 Q
That is correct.
So the initial verification step is by another examiner
Page 98
Meagher - Court 98
1 who mayor may not be a supervisor. Is that right?
2 A
3 Q
Initially, yes.
Yes, and
4 A But that examiner -- once again, we try to implement
5 policy that says that examiner who's doing the verification is
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13
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15
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17
18
19
20
equal to or more experienced in the examiner performing that
task. Now, regardless of whether that examiner wants to take
that identification decision to the supervisor first, that can
go either way. The issue is, is that it's going to have two
verifications attached to that identification.
Q It will have two verifications if we're talking about
fewer than 12 Galton points. Is that right?
A Correct, and that rule is primarily designed for examiners
who just initially come out of training, who have recently been
certified, and haven't built that level of experience and so
forth. Once an examiner generally gets up to a much higher
level of experience and, you know, 15/20 years of experience,
you know, there's -- you know, they are at the same level of
experience as generally a supervisor is, and it's, you know,
considered to be a comparable process at that point.
21 Q I see, so if an experienced -- reasonably experienced
22 examiner made an identification on the basis of let's say 15
23 Galton points and whatever other similarities he or she
24 perceived, then under the A.C.E.V. process, there would be
25 another examiner who would provide verification.
--
Page 99
Meagher - Cross/Perricone 99
1 A A hundred percent of identifications are verified by
another examiner. 2
3 Q And in that scenario, that one further verification would
4 suffice I take it.
5 A
6 Q
That's correct.
I take it if you had -- if the verifier disagreed or was
7 simply doubtful -- uncertain, then there would be a reference
8 on to yet --
9 A
10 Q
11 A
12
A supervisor.
-- to a supervisor.
Yes, sir.
THE COURT: Right. All right. That's very helpful.
13 Since I've maybe regarded by counsel as having muddied the
14 waters, let me inquire whether counsel for any of the parties
15 wishes to examine Mr. Meagher further.
16 MR. PERRICONE: Your Honor, may I cross examine the
17 Court's witness? I just have one or two, if I may, Your Honor.
18 THE COURT: Treat him nicely though, Mr. Perricone.
19 CROSS EXAMINATION
20 BY MR. PERRICONE:
21 Q Mr. Meagher, I'm just unclear on a couple of things.
22 First, if you, who I would expect you would qualify as an
23 experienced examiner -- if you make an identification on fewer
24 than 12 Galton points if you were doing case work, and you
25 did an identification on fewer than 12 Galton points, it would,
Page 100
Meagher - Cross/Perricone
1 of course, be verified by another examiner.
2 Like any other identification?
3 A Yes, sir.
Is that right?
Q Okay. If you, at your level of experience, made an
100
4
5
6
7
8
9
identification on fewer than 12 Galton points, would it also be
reviewed by a supervisor?
10
A I would certainly consult that with another unit chief.
There's three unit chiefs, and when those kinds of issues come
before us and there's a question for that, certainly, we would
exchange that information between us and make -- yes, make that
11 decision of another verification. It's -- I don't want to say
12 that, that's absolutely essential, because by our job
13 description we are considered to be the final technical
14 authority on matters such as this, so yes, it ultimately does
15 reside with my decision, but all of my identifications would be
16 verified.
17 Q Okay. If there were an experienced examiner at the FBI
18 who was not a supervisor and made an identification on fewer
19 than 12 Galton points, of course, it would be verified as any
20 other identification, but would that person have to bring it to
21 a supervisor?
22 A As I tried to imply, we adhere to that policy very
23 strictly with regarding to individuals who are certainly just
24 been recently certified or who have probably less than five to
25 ten years of experience. As an examiner becomes extremely
Page 101
Meagher - Cross/Perricone 101
1 experienced, of course, we know their performance record over
many, many years. That policy becomes -- I don't want to say 2
3
4
5
6
7
8
ignored, but it certainly becomes somewhat lax when we know the
fact is, is that somebody with 20 or 25 years of experience
makes the identification on less than 12 points and a verifier
of equal quality or of equal experience will certainly be
verifying that identification.
Q On one other area, you talked about -- when Judge Pollak
9 was asking you questions about situations in which you know
10 that incorrect identifications are erroneous identifications
11 that have been presented in Court by other than the FBI, you
12 mentioned a case in Philadelphia. Are you speaking of the case
13 just outside of Philadelphia, the Ricardo Jackson case in
14 Delaware County? Does that ring a bell?
15 A I don't want to say for a fact, but I think that's the
16 correct case.
17 Q Okay. Whatever case it is that you're referring to, that
18 is a case in which the F -- in which a local fingerprint
19 examination and a local fingerprint examination expert have
20 made an erroneous 1.0., and there may have even been two
21 locals. Is that right?
22 A
23 Q
I believe that's correct.
Okay, and the FBI was called in to determine if those
24 identifications were correct or not.
25 A That's correct.
,-
Page 102
Meagher - Cross/Restrepo 102
1 Q And the FBI is -- the FBI fingerprint examiners were the
2 ones who determined that, that was incorrect, and that person
3 was wrongly identified.
4 A That is correct.
5 Q Okay, so the FBI came in and did it correctly.
6 A That is correct.
7 MR. PERRICONE: Okay. Thank you, Your Honor. Those
8 are the only two areas I have a question about.
9
10
MR. EPSTEIN: May we just have one second, please?
THE COURT: Surely.
11
12
13
14
15 Meagher.
16
17
(Pause)
MR. RESTREPO: Briefly, Your Honor.
THE COURT: Yes, indeed, Mr. Restrepo.
MR. RESTREPO: Thank you, Judge. Good afternoon, Mr.
MR. MEAGHER: Good afternoon.
CROSS EXAMINATION
18 BY MR. RESTREPO:
19 Q Now, Mr. Meagher, you were aware, weren't you not, that in
20 the Jackson case that you just testified about that at trial
21 two defense experts -- two defense fingerprint experts said
22 that this was not the individual at issue. You were aware of
23 that. Correct?
24 A I actually believe that they were both or at least one of
25 them was a former FBI fingerprint specialist.
Page 103
1 Q
2 A
3 Q
Meagher - Cross/Restrepo
Right, and nevertheless, he was convicted.
I don't know that.
Correct?
Well, do you know that it was not until the post-
103
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5
6
7
8
conviction that one of the government fingerprint examiners
changed his mind so to speak or decided that he had erred that
the -- it was only at that point that the FBI became involved.
Is that correct?
A Boy, I'm really reluctant to talk about a case where I
9 don't have detail in front of me.
10 Q
11 A
That's fine.
I've learned a long time ago. I get confronted with so
12 many cases, if I don't have facts in front of me, I'm really
13 reluctant to talk about details.
I understand. 14 Q
15 A I can certainly retrieve those from the files of the FBI,
16 but I'm reluctant, because without the details here, I'm afraid
17 I get facts confused.
18 MR. RESTREPO: I understand. No other questions,
19 Your Honor.
20
21
THE COURT: Anything further?
MR. PERRICONE: I'm sorry, Your Honor. Thank you.
22 No, nothing further.
23 THE COURT: All right. Thank you very much, Mr.
24 Meagher, again.
25 MR. MEAGHER: You're welcome, Your Honor.
Page 104
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Bayle - Court
THE COURT: Is Mr. Bayle still with us?
UNIDENTIFIED ATTORNEY: He's here, Your Honor.
THE COURT: Mr. Bayle, can we retrieve you for a
5 ALLAN BAYLE, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
6 EXAMINATION
7 BY THE COURT:
104
8 Q Mr. Bayle, I think you said that you spent 25 years with
9 New Scotland Yard. Is that right?
10 A I did, sir.
11 Q Has it been New Scotland Yard all this time, or when
12 that happen? When did it become New? In the 18th century
13 or
14 A I think at the very beginning when Scotland Yard was
did
15 actually a yard in Victorian times, and it was called Scotland
16 Yard, and that's where they were based, and then they moved to
17 a new headquarters, and then they called it New Scotland Yard,
18 and that's why it's New. It's always been called New Scotland
19 Yard ever since. That's been going for 100 years.
20 Q Right. Well, New York has been around for quite a while,
21 too. Mr. Bayle, in that quarter century you I gather, among
22 the many other things you did, you actually yourself were in
23 Court giving testimony on behalf of the Crown, fingerprint
24 identification testimony, many, many times.
25 A That's right, sir.
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1 Q Would it have been scores of times or hundreds of times?
2 A Hundreds of times.
3 Q Hundreds of times.
4 A Hundreds of times, yes.
5 Q And in the course of such testimony would it be your role
6 to sort of describe the fingerprint identification process to
7 acquaint the jury with it?
8 A I tried, sir, yes. In fact, up to recently we had to use
9 charts, and but because we were inundated with so much work,
10 that they couldn't cope with it in the end, and, in fact, in
11 the early '70's we had to bring each -- all the property we
12 actually found and marked. We had to take the property to
13 Court. There were a few accidents like marked on a pane of
14 glass, and the glass flipped from the witness box and hit the
15 floor, so they lost their marks, and they then decided to go
16 into lifting, and that's why it changed, and then they brought
17 in -- we had to actually explain where the points were and
18 but that still can go on. I mean I did a case about three
19 years ago where they actually said, you know
20 Q Speak up, would you? I think -- I know you're -- you're
21 responding to my questions, but I think there are others who
22 are equally interested.
23 A Yes, if you -- if you had a serious case, then I had to do
24 a chart and actually explain to the Court and using the chart
25 and pointing out the similarities.
Page 106
Bayle - Court 106
1 Q And at the conclusion of your testimony then it would
2 frequently be your role to say to the jury that in your
3 judgment the latent fingerprint was made by the accused, who
was the person who made the known exemplar. Is that right? 4
5
6
7
8
9
A That's right, because until June last year you had to have
10
11
12
13
14
15
16 points in agreement before you could take it to Court.
That's now gone, and there's no standard anymore.
Q The I asked Mr. Meagher whether he knew of situations
in which he had given such identification testimony in which
the jury had wound up acquitting the accused, and you heard Mr.
Meagher say that he didn't -- he couldn't say for certain that
he didn't -- that hadn't happened, but quite frequently he
would not even know the result of a prosecution in a case in
which he gave testimony. Do you happen to know in terms of
your own experience whether there had been such instances?
16 A
17 Q
18 A
Yea, several times.
Several times.
Several times, and usually, it's because of legal access.
19 Like with a -- like there's been a broken window, and the guy
20 actually says I was playing football outside, and I went
21 through the window to collect my ball, even though they
22 couldn't find a ball inside the premises, but he still got off.
23 The other situation, I went to a rape, and a
24 fingermark was found by a scene examiner, and he was acquitted,
25 because he said he'd been with that girl for two years, and
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Bayle - Court 107
then he packed her in, and that was it, and he was acquitted on
-- he was acquitted on that, because he actually knew the girl,
and yet he went out with her -- had a relationship.
Q I see. Now, there have been some instances, have there
not, in the U.K. experience, even in recent years, of mistaken
identifications presented in Court?
7 A Yes, there's one which is a very famous one which it's
8 called the Shirley McKee case and --
9 Q
10 A
That was in Scotland.
That was in Scotland, and that's still going through the
11 court system at the moment, and I gave evidence --
12 Q
13 A
You gave evidence in that case?
I gave evidence not in the case itself but to the inquiry,
14
15
16
17
18
19
20
21
22
23
24
25
because you had two American people giving evidence on her
behalf, Pat Wertheim and David Grieve, and she was acquitted.
Now then she was a police officer. Her mark was found on a
door frame in the kitchen that was overlooking the body, and
Shirley McKee never actually went inside the premises. The
mark was identified for her left thumb by four experts. Now
then they say it was a left thumb. That was quite impossible,
because the mark was on the right-hand side of the door frame,
which means she had to be a contortionist to actually leave her
thumb mark there. I've done experiments since then. It's
actually the right hand or the right forefinger or the right
mid-finger, and I gave evidence in Edinburgh, Her Majesty's
-
Page 108
Bayle - Court 108
1 inspected it, her constabulary, and the inquiry team on the
2 reasons why the mistakes were made and the big problems there
3 were, so I gave evidence of that.
4 Q
5 A
That inquiry is still not concluded. Is that right?
It's not concluded, because there's another mark in the
6
7
8
case that was also misidentified, and a gentleman who was found
guilty on that evidence, I looked to that Mark with Pat
Wertheim, and we said that it wasn't the victim's mark. It was
9 just found on a biscuit tin inside his premises, and so no --
10 because of our evidence he's been now released. We are now
11 waiting for the appeal for him. So to have two marks and
12 identified wrongly in one case is very, very rare, and there's
13 obviously a big problem with procedures.
14 Q Now, as I understand it, Officer McKee is it pronounced
15
16
17
18
19
20
21
22
23
McKee or McKie (sic)?
A McKee.
Q McKee. Shirley McKee was -- she was acquitted on perjury
charges which arose out of her testimony that the print in
question was not hers, and the I mean contrary to the
testimony, as you say, of I guess four fingerprint
identification witnesses. I think you said that on her behalf
in the perjury prosecution she was helped out by the assistance
of two fingerprint experts from the United States?
24 A That's right, and because nobody would listen to her in
25 the United Kingdom.
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Bayle - Court 109
I think you named them. One was David Grieve. 1 Q
2 A Dave Grieve and Pat Wertheim, and they're both very good
experts. 3
4
5
Q Are they attached to any law enforcement entities here in
the U.S.? Do you know?
6 A I think they are. I think Mr. -- they're nodding their
heads, so he must be, yes. 7
8 Q Well, that's that's a way of giving testimony that may
9 be imported from the U.K., but we have it's a sort of relay
10 system. When -- now, in the instances in which -- on behalf of
11 the Crown you've given fingerprint identification testimony,
12 have there been at least in some circumstances witnesses
13 adduced by the defense experts in fingerprint identification
14 matters to dispute your testimony?
15 A They did employ them, and that's what I do now as well,
16 but I've never had any problems accepting my evidence, thank
17 goodness. In fact
18 Q Because you taught them all. Is that right?
19 A Some of them. We had a case in New Scotland Yard where a
20 misidentification happened. It never got to court. It was
21 against an actress -- Ms. Stophardt, and it was -- they call it
22 the defense team, because the suspect said I never actually
23 went into those premises, and he was right, because Mr. Cook,
24 who was the defense expert, said no it wasn't his, so it was
25 spotted before he went to court.
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Bayle - Court 110
1
2
3
4
5
There has been another case in the past six months
with the Greater Majesty police who misidentified somebody as
well. That's being investigated at the moment.
Q I see. Now in your new role it's open to you to give
testimony for the defense disputing New Scotland Yard or other
6 law enforcement witness, is that right, in fingerprint
7 identification regimes?
8 A That's right. I'm usually giving evidence against the
9 people who I've taught, so -- but as long as they're honest and
10 they're doing their job properly, then they won't have any
11 problems.
12 Q Now, tell me the conflict in testimony in such a
13 circumstance would usually be of the nature of the defense
14 expert -- we'll say you for this purpose, if you wish -- saying
15 with all respect, "I draw a different set of inferences from
16 the same prints that are being testified to by the Crown's
17 witness?"
18 A If it came to that, but I do scientific reports. I do a
19 holistic approach to fingerprints. I don't just do a straight
20 matching points or anything like that. Very similar to Mr.
21 Meagher. I mean I do an actual scientific report, and usually
22 it covers everything about what's happening in that mark --
23 background noise, pressure distortion, sub-straight matrix. It
24 covers everything -- problematic areas. So I put everything in
25 that report, and then you come to your conclusions, and usually
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8
it is that person, and even then I'll get a request to look at
a mark where the defendant says, "No, I definitely wasn't
there," and it's definitely him. So -- well that's life, you
know, so
Q But there would occasionally be instances in which a
retained expert witness on behalf of the defense, whether you
or another expert, would dispute the conclusion given by the
Crown of identification?
9 A Oh, yes. If it's not right, then I'll certainly give
10 evidence against that.
11 Q Would there be -- if this is a question you can answer.
12 Maybe not, but would there be people whom you would regard as
13 an expert fingerprint specialist in the U.K. who would come
14 into Court and dispute the A.C.E.V. methodology?
15 A No, I've never known that.
16 Q All right. It's just in the last several months that
17 you've -- you've left the government and set up shop. Is that
18 right? The
19 A
20 Q
21 A
Yes.
As an independent expert?
I have. I was forced to in the end because of the Shirley
22 McKee case. They were watching me like hawks and -- but there
23 was another case that came up, and again, it was a fingermark
24 that was found on a jewelry box, and the sister or the lawyer
25 in the case asked me if I would represent the client in the --
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1 going by the Yard -- permission for me to give evidence on his
2 behalf. Well, I said, "Well, the protocol in there. You ask
3 the Yard first, and then come back to me." Well New Scotland
4 Yard, they called me in and said, "Mr. Bayle, we don't want you
5 to do this. We don't give evidence against other forces," and
6 so I said, "Thank you very much," and I handed my notice in,
7 and I represented this particular gentleman. The same examiner
8 said he lifted a mark off a jewelry box. We've now done
9 several tests. It didn't come from the jewelry box, so now we
10 are waiting now for more confirmation. This gentleman's now in
11 prison. He's a very wealthy man, and he's in there for
12 burglary, and we've actually proved now that the mark the scene
13
14
15
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20
21
22
23
24
25
examiner lifted actually came from a rounded surface and not
from a jewelry box.
Being a forensic scene examiner myself, I really
suspect that this gentleman did not make his notes at the
scene, and we've had that instance in London, and they've lost
their jobs, and I suspect this character is doing it as well.
So, hopefully, I'm waiting for the further appeal to come up,
and I'll give evidence again.
Q I see. Well, that sounds like a difficult and honorable
process that you've gone through, Mr. Bayle.
A Thank you.
Q Mr. Bayle, you said a few minutes back, as I recall, that
there is now no minimum number of points required to support
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1 identification testimony
2 A
3 Q
That's right.
-- in the O.K. courts.
4 A That's right.
5 Q And that was a departure from a prior time when at least
6
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at one point the minimum was 16 points. Is that correct?
A That's right. That's correct.
Q Can you tell us a little bit about what that history was?
How it was that there came about to be made a change?
A It started from I think in the 1920's when there was a
fraudulent mark, and it was sent -- in fact, it may have been
earlier than that. It was actually sent to New Scotland Yard
by a gentleman from France, and he wanted to prove -- he had
this system where he used measurements and not fingerprints,
and he wanted to prove that fingerprints did not work, so he
forged this mark, and he went through a journal from New
Zealand, and the Yard saw this, and they panicked, and they
thought well, we'll go to 16, and we'll make sure that nothing
can go wrong, and there's no scientific basis for that. It's
all on a forged mark, and it's been retained ever since. I
mean they've had meetings and whatever, and they just kept it
and kept it.
23 Q
24 A
25 Q
Was that the forgery that was attributed to Bertineau?
Yes, sir, you're right. You're very knowledgeable.
Alphonse Bertineau?
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2 Q
Yes.
Go ahead.
Bayle - Court 114
3 A Yes, so they -- as Mr. Meagher said, there was a meeting
4 in Israel, and Britain signed up to that, that there was no
5 scientific basis for keeping the points standard, and in June
6 last year England and Wales have moved that far. Scotland will
7 follow I suspect in the -- this year some time, but they've got
8 to get the procedure sorted out from the McKee case.
9 THE COURT: Perhaps some of the history which Mr.
10 Bayle has given us is described in a judgment which I'm sure
11 Mr. Bayle is familiar with -- the Buckley case in the Court of
12 Appeal in 1999. I guess we would call it Queen vs. Buckley,
13 but I guess more properly, Regina vs. Buckley.
14 THE WITNESS: You're right.
15 THE COURT: One 43 S.J.L.B. 159, decided on April
16 30th, 1999, and I don't know whether counsel have copies of
17 that judgment. Very likely not, but Ms. Arnett Lee will
18 provide you with copies. The -- my acquaintance with the
19 judgment Mr. Bayle is due to exemplary research skill which I
20 have, which involves talking with a barrister friend of mine in
21 London, I think I'm required to advise counsel of how I would
22 manage to get a hold of anything that was not in the record.
23 You may be acquainted Mr. Bayle with Anthony Lester, Q.C. He-
24 - I was curious as to what the state of the law was in the
25 U.K., and a barrister colleague of Lester's referred me to the
Page 115
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1 judgment in Buckley. That, as I say, was a 1999 case, and at
2 that time the Court of Appeal took the position that after
3 summarizing much of the history to which Mr. Bayle has
4 referred, described the case law up through 18 -- 1999 and
5 projected that, "As of April of 2000 a time would be reached at
6 which a known minimum number of points would be required for an
7 identification process, but that, that was still in the future.
8 It may be in the future when sufficient new protocols
9 have been established to maintain the integrity of fingerprint
10 evidence. It will be properly receivable as a matter of
11 discretion without reference to any particular number of
12 similar rich characteristics, but in the present state of
13 knowledge of and expertise in relation to fingerprints, we
14 venture to proffer the following guidance which we hope will be
15 of assistance to judges and to those involved in criminal
16 prosecutions."
17 The modesty of the judicial statement, "We venture to
18 proffer the following guidance which we hope will be of
19 assistance to judges and to those involved in criminal
20 prosecutions." That's not a form of phrasing that's familiar
21 to appellate judges or even the trial judges in our country.
22 And then the Court of Appeal went on to say, "If
23 there are fewer than eight similar ridge characteristics, it's
24 highly unlikely that a judge will exercise his discretion to
25 admit such evidence and save in wholly exceptional
Page 116
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1 circumstances the prosecution should not seek to adduce such
2 evidence. If there are eight or more similar ridge
3 characteristics, a judge mayor may not exercise his or her
4 discretion in favor of admitting the evidence. How the
5 discretion is exercised will depend on all the circumstances of
6 the case including in particular --" and then the Court went on
7 to talk about the witness's expertise, the number of similar
8 ridge characteristics, whether they're dissimilar
9 characteristics, size of the print relied on, quality and
10 clarity of the print, and so forth.
11 But as Mr. Bayle has pointed out, though the new
12 regime was not arrived at in 2000, it was anticipated. It was
13 arrived at as of June 11, 2001, a date which I guess by
14
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19
20
21
22
23
coincidence must correspond very closely with your leaving
government service and --
A Well, it was, because they were relying on me to test it,
and I have done a few cases for New Scotland Yard, but they
used it as a back up in case there were any problems with
ordinary witness's experts, and it never came to pass. The
only one I did there was for Lockerbie, but they accepted my
evidence, and it was less than 16, and the Scot's are very
reluctant to do anything because of the Shirley McKee case, but
the Hague accepted my evidence.
24 Q Well, I would complete this by bringing to your attention,
25 Mr. Bayle -- because this at least would be I think more recent
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1 than your corning to the States to help us out -- that the
2 following took place in the House of Lords in a -- in response
3 to a set of questions put to Her Majesty's government. Anthony
4 Lester, who is Lord Lester of Hern Hill, asked Her Majesty's
5 government -- this is as of yes terday, February 25, 2002, "What
6 standards are prescribed for fingerprint identification to be
7 used in evidence in criminal trials?"
8 The response on behalf of the government from Lord
9 Rooker, "The current standard prescribed for fingerprint
10 identification is the non-numerical system which was introduced
11 from 11 June 2001. This was after extensive consultation with
12 the Lord Chancellor, the Attorney General, and other criminal
13 justice stakeholders, although there is no set numerical
14 standard to be satisfied before experts make a decision that a
15 mark or impression left at a crime scene and a fingerprint were
16 made by the same person. There are objective criteria which
17 must be satisfied and must be capable of demonstration, e.g. in
18 a court, before any such decision is made.
19 There are also prescribed verification procedures
20 which must be adhered to at all times before that decision is
21 communicated to an investigating police officer, and eventually
22 to the courts."
23 Lord Lester of Hern Hill asked Her Majesty's
24 government, "What qualifications are prescribed for individuals
25 to become fingerprint examiners for the purpose of giving
Page 118
Bayle - Court 118
1 evidence of identity in criminal trials?"
2 Lord Rooker, "All fingerprint experts commence their
3 training with a foundation course of four weeks. They then
4 need to complete five modules, which should normally be
5 completed within 12 to 18 months that are followed by a short
6 assessment. Twelve months later after a consolidation of
7 skills and work experience on the job, they attend a two-week
8 advanced course in which the emphasis is on court presentation
9 and preparation of evidence. Even after the advanced course
10 has been passed successfully, which is usually not less than
11 three years after entering the training program, the person
12 will be permitted to attend court to give expert testimony only
13 with the approval of their head of Fingerprint Bureau and Chief
14 Constable."
15 Lord Lester of Hern Hill asked Her Majesty's
16 government, "Whether they consider that the determination that
17 a fingerprint examiner makes when comparing a latent
18 fingerprint with a known fingerprint for the purpose of
19 establishing identity in criminal proceedings is a subjective
20 determination and the no objective standard has been
21 scientifically tested and no subjective process has been
22 objectively tested, and if not, what is the objective standard
23 that is applied?"
24 Lord Rooker, "In determining whether or not a latent
25 mark or impression left at a crime scene and a fingerprint had
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Bayle - Court 119
been made by the same person, a fingerprint examiner must apply
set criteria in carrying out their comparison. Criteria are
objective and can be tested and verified by other experts. It
is the method which is of universal application by
practitioners on behalf of either prosecution or defense and
has been in use from the first application of fingerprint mark
identification.
Once the first fingerprint examiner has reached a
conclusion that the mark or impression at the crime scene and a
fingerprint have been made by the same person, that decision is
subject to verification by two other fingerprint experts before
the investigating officer is informed of the result. Any
identification evidence presented in court will have been
subject to these procedures.
Instructing solicitors or barristers representing
defendants can and regularly do ask that fingerprint
identification evidence be subjected to scrutiny by nominated
fingerprint experts from outside the police service. Details
of those experts can be obtained from registers maintained by
the Law Society, the Expert Witness Institute, or through the
services of private companies who undertake independent
22 forensic examinations. This is an external examination of
23 police service practice and procedures which has been ongoing
24 for many years."
25 That completes the questions presented to Her
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Bayle - Cross/Saramousakis 120
1 Majesty's government with respect to fingerprint
2 identification. The next questions relate to seatbelts, and I
3 think that's outside the purview of our hearing.
4 Are there any matters that I've had a conversation
5 with Mr. Bayle about that counsel would like to pursue?
6
7
8
MR. SARAMOUSAKIS: Just one question, Your Honor.
THE COURT: Mr. Saramousakis.
CROSS EXAMINATION
9 BY MR. SARAMOUSAKIS:
10 Q You understand, do you not, that Pat Wertheim testified in
11
12
13
14
the Mitchell case, and that David Grieve was also part of that
team effort, if you will, to gather the facts for the Court in
the Mitchell Daubert hearing?
A I didn't know but --
15 Q Oh.
16 A
17
18
19
20
21
that's a fair enough --
MR. RESTREPO: Just one moment, Judge.
THE COURT: Mr. Restrepo.
MR. RESTREPO: Something with amicus.
(Pause)
CROSS EXAMINATION
22 BY MR. RESTREPO:
23 Q I believe there was some discussion with Judge Pollak
24 about conflicts in testimony in the courts in England with
25 respect to defense experts and experts for the government. Is
--
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1 it typical for the defendants or defendant in England to retain
2 a fingerprint expert to present evidence to the court?
3 A Well I've been contacted several times by defendants even
4 in prison. I will always refer them back to their solicitors
5 to contact me. There can be problems when doing that, but they
6 should always go through their solicitors to me.
7 Q But when you were testifying for the government in England
8 for Scotland Yard -- New Scotland Yard, was it typical to
9 find a defense expert on the other side of the case when you
10 testified in court?
11 A No, it's very common there.
12 Q It is very common or is not very common?
13 A It's very common.
14 Q It's very common?
15 A Yea.
16 Q And, sir, you've testified with respect to the A.C.E.V.
17 method in England, do a lot of the fingerprint examiners
18 practice ridgeology in England?
19 A No, I'm the only one that practicing doing reports for
20 court at the moment. There are some others that are still
21 learning. They've still got to do the research.
22 Q So would it be a fair statement to say that the examiners
23 in England typically rely on level two detail as opposed to
24 level three detail?
25 A You're talking -- I think there's about four people who
Page 122
122
are qualified not even to my level. They only had the course I 1
2 think some time last year. I mean I've been doing it now for
3 three or four years, so there's a lot of people still learning.
4 Even Pat Wertheim has been over to the U.K. to do courses and
5 so has Dave Asbaugh.
6 MR. RESTREPO: I have nothing further, Your Honor.
7 THE COURT: All right. Anything further?
8 MR. PERRICONE: No, Your Honor.
9
10
11
12
13
THE COURT:
MR. EPSTEIN:
THE COURT:
MR. EPSTEIN:
THE COURT:
Mr. Epstein, did you
No, thank you.
Or Mr. Epstein?
No.
Mr. Bayle, thank you very much.
14 MR. BAYLE: Thank you, sir.
15 THE COURT: We certainly appreciate your coming over
16 here and instructing us here in the colonies. Thanks a lot.
17
18
19 time.
MR. BAYLE: Very good.
THE COURT: Well, I think I've take up a lot of your
It's four. I'm prepared to go on until five, but I
20 would have to recess at around that time, which I suspect means
21 that we won't complete our work today, but the store will be
22 open tomorrow.
23 MR. SARAMOUSAKIS: Your Honor, could I have just a
24 moment to confer with Mr. Epstein?
25 THE COURT: Shall we recess for a few minutes?
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MR. RESTREPO: That's fine, Your Honor.
THE COURT: All right. We'll recess for five
123
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(Recess)
THE COURT: Please sit down. Mr. Epstein.
MR. EPSTEIN: If Your Honor, please, our next
witness, who is taking the stand magically as I speak, with
your permission, is Ms. Arzizu. Our suggestion is that we at
least start. We can certainly get through qualifications and
maybe a bit of the foundation for her testimony. It may be at
that point that I'll ask the Court to let us recess, so that
the bulk of the expert opinion I think would be better coming
in, in one block tomorrow, but at least we could get some tasks
done today, if that's acceptable to the Court.
THE COURT: Fine. Sure. Go ahead.
MR. EPSTEIN: Thank you, then we call Janine Arzizu.
JANINE ARZIZU, DEFENDANT'S WITNESS, SWORN
CLERK: Thank you. Please state your name for the
19 record and spell your last name.
20
21
MS. ARZIZU: Janine Arzizu, A-r-z-i-z-u.
CLERK: Thank you. Please be seated, and speak into
22 the microphone.
23 MR. EPSTEIN: With the Court's permission, may I
24 first mark Ms. Arzizu's curriculum vitae as D-3 and present a
25 copy for the record and a copy for the Court? Whichever one
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Arzizu - Direct/Epstein 124
1 you want to make, and would you hand the one that's the record
2 one to Ms. Arzizu
CLERK: Sure. 3
4 MR. EPSTEIN: -- for during her testimony? May I
5 proceed?
6
7
THE COURT: Please go ahead.
MR. EPSTEIN: Thank you.
8 DIRECT EXAMINATION
9 BY MR. EPSTEIN:
10 Q Ms. Arzizu, what do you do?
11 A I'm a laboratory quality auditor.
12 Q In English, please.
13 A In English. What is that?
14 Q The Queen's English. What does that mean?
15 A I provide quality assurance consulting services for
16 clients who use laboratory results -- laboratory reports to
17 make very important decisions, but they don't have the in-house
18 expertise to assess how much confidence they can have in that
19 laboratory's decision.
20 Q Would you give us an example of that and then a list of
21 the types of labs that you have done that work for?
22 A Sure. Over the course of my career the majority of my
23 work in both conducting on-site audits of laboratories and in
24 conducting data quality assessment have been for federal
25 agencies, in particular, the Department of Energy and the U.S.
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Arzizu - Direct/Epstein 125
1 Navy. The types of laboratories that I assess run the gamut of
2 testing laboratories -- laboratories that test unknown samples
3 in support of manufacturing, the environmental industry, food
4 testing industry, pharmaceutical industry. Quite a variety.
5 Q And how long have you been doing this?
6 A I've been doing it in the private sector since 1992, and
7 prior to that I managed a testing laboratory for the Department
8 of Energy and also conducted laboratory assessments within the
9 Department of Energy complex.
10 Q
11 A
12 Q
13 A
14 Q
15 A
16 Q
And what is Consolidated Technical Services, Incorporated?
A quality assurance consulting firm.
And that's the company that you
Yes.
And you're title there or your rank?
Senior Technical Consultant.
Thank you. Okay. Would you please tell His Honor your
17 educational background?
18 A 1 have a B.S. degree in biochemistry from California
19 Polytechnic State University at San Los Obispo, A.B.D. in
20 chemistry from the University of New Mexico. I have been
21 certified as a quality auditor by the American Society for
22 Quality and have been trained according to 1.S.0. standards in
23 the assessment of laboratory quality systems as a lead auditor.
24 Q And because I anticipate that the term 1.S.0. will come up
25 during your testimony, will you please explain now on the
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1 record what I.S.O. is and does?
126
2
3
4
5
6
7
8
9
A I.S.O. is the International Standardization Organization,
10
11
and it's a standard setting body for consensus standards
throughout the world. You may be familiar with the term, for
example, I.S.O. 9000 as a standard that companies that sell
their products internationally adhere to.
quality standards.
It essentially sets
In relation to the issue at hand here, there is an
I.S.O. standard relating to proficiency testing for
laboratories. There is an 1.S.0. standard for operation of
test and calibration laboratories.
12 Q What has your involvement been in terms of lab quality
13 assurance with forensic labs or forensic data quality?
14 A Within the last couple of years I have been asked to
15 conduct data quality assessments of the work product generated
16 by forensic laboratories. I have also been asked to observe
17 testing within a forensic laboratory.
18 Q Have you published or written manuals or documents
19 relating to this subject, and in particular with regard to the
20 Navy?
21 A Yes, I authored the quality standard for laboratories that
22 was used as the basis for approval and essentially sending work
23 to laboratories by the Navy for a number of years.
24 Q Can you tell us in the last ten years what percentage of
25 your work has been for the government? I know that you're a
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Arzizu - Direct/Epstein 127
1 private company, but being asked by the government or an agency
2 of the government to do the type of assessment --
3 A I've actually never done that computation, so I'd be
4 reluctant to give you a number, but I can say with confidence
5 that it's the vast maj ori ty.
6 Q All right, and have you testified as an expert, and when
7 you answer that, if the answer is yes, would you tell us on
8 what types of issues and in what jurisdictions?
9 A Yes, I have testified as an expert in the subject of
10 laboratory quality assurance in -- I'm not sure I'm going to
11 get the terminology right, but in a couple of different Federal
12 Courts, in Superior Court in the District of Columbia, and in
13 District Courts in a number of states. I think about a dozen
14 times total.
15 MR. EPSTEIN: If Your Honor please --
16 Q 0-3, the C.V., before you, is that an accurate copy of
17 your current curriculum vitae?
18 A Yes, it is.
19 MR. EPSTEIN: If Your Honor please, the defense
20 offers Ms. Arzizu as an expert in the subject matter of lab
21 quality assurance.
22
23
MR. ZAUZMER: Your Honor, if I may voir dire?
THE COURT: Yes. Yes, indeed.
24 MR. ZAUZMER: Thank you, Your Honor. Your Honor,
25 Robert Zauzmer for the government.
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Arzizu - Voir Dire/Zauzmer 128
VOIR DIRE
BY MR. ZAUZMER:
1
2
3
4
5
Q Ms. Arzizu, you're the President of Consolidated Technical
Services?
A Yes.
6 Q
7 A
How many employees does that company have?
It's varied over the years from a high of probably 16 to
8 about three at present.
9 Q Now you stated that you have done examinations or quality
10 assurance regarding forensic laboratories?
11 A Yes, I've conducted what I called data quality
12 assessments. That's simply reviewing the written work product
13 produced by the laboratory.
14 Q And have you done that personally or through your
15 employees?
16 A Personally.
17 Q When you do a quality assessment of a forensic laboratory,
18 what exactly do you do?
19 A
20 Q
The data quality assessment?
Well I don't -- okay. You're saying that all you've done
21 is a data quality assessment.
22 A
23 Q
24 A
Correct.
Okay. What is a data quality assessment?
That's essentially where I get the entire work product
25 relating to the subject case and attempt to reconstruct
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everything associated with the final report produced by the
laboratory. So if they have a final report, the report results
for a certain number of samples, then I attempt to reconstruct
the documentary record that describes who touched that sample,
when they touched it, what they did to it, whether or not any
relevant quality control associated with that particular
measurement, whether those criteria were met, and test
essentially every part of the measurement process to insure
that the sample integrity was maintained, to insure that all
quality control criteria were met, and to insure that the
laboratory's own quality assurance program requirements were
met during the course of their testing.
Q And what types of forensic tests have been involved in
these matters where you then looked at it for quality
assurance?
16 A
17 Q
18 A
Disciplinary type like DNA and that type of thing?
Right.
Okay. DNA testing, testing for the presence of controlled
19 substances, using both color and instrumental gas
20 chromatography, mass spectrometry techniques, testing of
21 embalmed tissue samples using a L.C.M.S. quadruple mas --
22 THE COURT: Say that again. That was an acronym
23 that --
24 THE WITNESS: L.C.M.S. is a liquid chromatography
25 mass spectrometry technique that was applied.
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THE COURT: I mean I knew what it was, but there
might be some others who wouldn't.
3 A Let's see. I think I already said DNA. That's an
assortment, and in this case, fingerprints.
Q Besides this case, have you ever been involved in the
130
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5
6 assessment of quality assurance in a fingerprint identification
7 lab?
8 A No, sir.
9 Q All right. Now in those other instances where, for
10 example, regarding controlled substances or the other things
11 that you mentioned, you said you gather all of the data
12 involved in the process that you're evaluating. Is that right?
13 A Yes, to assess whether or not the laboratory's reported
14 conclusion can be substantiated by the written record and to
15 what extent and estimate can be made of the uncertainty based
16 on tha t record.
17 Q So you gather any documents you can relevant to what
18 happened at the laboratory?
19 A
20 Q
21 A
Specific to that particular case, yes.
Do you visit the laboratory?
I have not in cases of where I've looked at forensic data.
22 That was a common practice in -- outside the forensic
23 community.
24 Q Do you talk to the people who work in the forensic lab
25 when you're doing one of these assessments?
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1 A When I have that opportunity, I frequently do, yes.
2 Q Okay. Now is it a fair statement that in this case this
3 is your first encounter with fingerprint identification
4
5
evidence.
A Yes, it sure is.
6 Q And is it also correct that the only materials that you've
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12
looked at are materials provided to you by defense counsel?
A That's correct.
Q And is it correct that you haven't spoken yourself
directly to anybody who works for the FBI forensic
identification unit?
A Only in the hallway outside this courtroom.
13 Q And other than pleasantries, has there been any
14 substantive conversation?
15 A No.
16 Q And is it also true that you haven't visited the FBI
17 laboratory?
18 MR. EPSTEIN: Your Honor, I object at this point,
19 respectfully. I know that requests have been made not in this
20 case but by other individuals -- scientists -- to try and do
21 such visits, and they've been politely repudiated, and I'm not
22 sure that, that goes to qualification.
23 MR. ZAUZMER: Well, that's news to us, Your Honor.
24
25
MR. EPSTEIN:
MR. ZAUZMER:
I'll withdraw.
I'm just asking a question.
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Arzizu - Voir Dire/Zauzmer
1 MR. EPSTEIN: I'll withdraw.
2 THE COURT: All right.
3 BY MR. ZAUZMER:
4
5
Q You have not visited the FBI lab involved
fingerprint identification.
132
in the
6 A No, I have not. I have only taken the public tour of the
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FBI laboratory.
Q And you'll agree with me that they don't really take you
into the actual places where the processes are being done.
A You actually view through large plate glass windows
operations within several sections of the laboratory, and I
found it most enlightening.
13 Q Did -- now has any of your evaluations of other
14 laboratories and other quality assessment involves proficiency
15 testing?
16 A
17 Q
18 A
Yes.
What specifically?
For example, I managed the Navy's quality assurance
19 program for the analytical laboratories that provide services
20 to the U.S. Navy, and that included both government and
21 commercial laboratories, and as part of that program, in
22 addition to conducting on-site audits and conducting data
23 quality assessments, we also administered our proficiency
24 testing program for those laboratories.
25 THE COURT: You say you administered such a program?
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THE WITNESS: Yes, decided what kind -- the numbers
of samples and what kinds of samples and the actual chemical
composition and concentration of those samples to send to the
various laboratories, and that was both routine proficiency
testing as well as customized special proficiency testing on a
project specific basis.
10
BY MR. ZAUZMER:
Q All right. Now with that Navy laboratory, what exactly
are they accomplishing? What kind of work is being done in the
laboratory that you were looking at the proficiency testing?
11 A These were conventional analytical chemistry techniques
12 for the most part -- organic and inorganic analyses as an
13 example.
14 Q Well, to find what, for example?
15 A To find a whole suite of organic compounds that are
16 detectable through chromatographic techniques, to find heavy
17 metals, for example, using inorganic techniques.
18 Q In what type of substances?
19 A You name it. Almost -- the matrix could be very highly
20 variable. Anything from water to waste to sludge -- a variety
21
22
of matrices.
Q All right. Now in this case regarding the fingerprint
23 identification proficiency tests, what documents exactly have
24 you looked at that were provided to you by defense counsel?
25 A I have reviewed the master files for the years 1995
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Arzizu - Voir Dire/Zauzmer 134
through 2001 including everything except the actual photographs
of the prints, so all the descriptive information about the -
about those tests. I have reviewed the -- that also includes
the latent fingerprints protocols as well as the quality manual
provisions applicable at the time. I've reviewed the summary -
- this one -- the summary document that was prepared by the FBI
laboratory representing their total performance over a period
of years. I've reviewed the legal documents that were provided
to me by the defense team, and I've reviewed the C.T.S.
proficiency result report from 1995.
Q All right. Now it's correct to say that you haven't
spoken to any of the people who took the test.
13 A That's correct.
14
15
Q And nor have you spoken to any of the people who
administered the test.
16 A
17 Q
18 A
19 Q
That's correct.
And are you yourself qualified as a fingerprint examiner?
No, sir.
Were you able to look at any of these tests and conclude
20 for yourself what the answers might be to the different items?
21 A
22 Q
23 A
24 Q
25 A
No.
You wouldn't be able to do it at all.
No.
Is that fair to say?
I haven't been to the six-week course either.
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1 MR. ZAUZMER: Right. Neither have I. If I could
2 have one moment?
3 (Pause)
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MR. ZAUZMER: Your Honor, it's the government's view
that Ms. Arzizu is certainly an expert regarding quality
assurance, however, we object to her testimony as an expert in
this case given that her expertise does not appear to be based
on the discipline that's at issue here. I can address that
further with the Court if the Court wishes.
THE COURT: I'm not really sure why the fact that the
11 witness hasn't addressed laboratory techniques involving
12 proficiency testing or related processes with respect to
13 fingerprint testing rules her out of having some advice to
14 offer, some intelligence to provide with respect to how
15 proficiency tests should be managed, structured. I'll be glad
16 to have you tell me more, Mr. Zauzmer, but on the face of it I
17 suggest to you that the presentation is that the witness has,
18 if you will, an eclectic history with respect to laboratories
19 examining a variety of processes in a variety of contexts.
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24
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MR. ZAUZMER: I will not press the issue too hard,
Your Honor. It's just our view that Ms. Arzizu has experience
regarding other disciplines, but in this matter, in an area
which is new to her and in which she cannot herself personally
attest to the nature of this test or its difficulty, which I
hear is what she's going to testify about, in this area she
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1 hasn't conducted a full investigation or has really a great
2 deal of experience at all. She hasn't spoken to the people
3 involved, looked at anything other than basically the test
4 results and a manual that was presented to her, and it does not
5 seem to us to be a substantial basis on which to opine
6 regarding the adequacy of this test in this discipline which is
7 devised by people who work in the discipline for their own
8 purposes. That's our view, Your Honor.
9 THE COURT: All right. Well that does seem to me
10 concerns addressed and appropriately addressed to await the
11 testimony, but for our purposes it seems to me Ms. Arzizu's
12 testimony within the framework of the expertise proposed for by
13 Mr. Epstein is sufficient, so that I can listen to her
14 testimony and see to what extent it may be helpful.
15 MR. ZAUZMER: Thank you, Your Honor.
16 THE COURT: Now is it your thought then to commence
17 the examination now?
18 MR. EPSTEIN: A few minutes at least to get our --
19 get us started --
20
21
THE COURT: Fine. Fine. I just want to --
MR. EPSTEIN: if that's acceptable. At this point
22 I would ask for permission first to have D-3 accepted into the
23 record, which is the curriculum vitae.
24
25
THE COURT: Surely.
CONTINUED DIRECT EXAMINATION
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Arzizu - Direct/Epstein 137
BY MR. EPSTEIN:
Q Now, Ms. Arzizu, you were asked by Mr. Zauzmer about what
documents you reviewed or studied --
A Yes.
Q -- for this purpose. Am I also correct that you attended
proceedings the last two days?
7 A
8 Q
That is correct.
And before and sometimes in the evenings after did you
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10
11
12
13
also have consultations with any individuals?
A Yes, I've spent a goodly portion of that time with Mr.
Bayle.
Q Okay, and while you were here -- I believe it was
yesterday -- in terms of your chart did you speak briefly with
14 Mr. Meagher? Do you recall whether it was yesterday or today,
15 to clear up some numbers on a chart that you'll be discussing?
16 A Yes. Yes, I did. I had the opportunity to talk with him
17 about some of the specifics of the origin of the information on
18 his chart.
19 Q All right, and further, before you took the stand today,
20
21
22
23
were you kind enough to speak with a whole slew of government
lawyers and me out in the hall to discuss at least part of your
testimony?
A It was a great treat.
24 Q
25 A
I take that as a yes.
Yes, sir.
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1 THE COURT: It would've been even a greater treat if
2 the answer were no.
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THE WITNESS: You're right.
Q Having looked at the documentation regarding the
proficiency tests -- the FBI proficiency tests for the several
years that you discussed, having heard the testimony here in
Court, having done your own review and having spoken to Mr.
Bayle in particular and applying the principles of lab quality
assurance, is the test that has been proffered by the FBI here
an effective proficiency test?
11 A No.
12
13
14
15
16
17
18
19
Q Can you just briefly explain why not, and then we'll go
into each of those reasons?
A The test performed by the FBI, as you've described, is an
internal proficiency test, and as such, it's an integral part
of the laboratory's quality assurance program that the FBI
laboratory instituted in recent years, and the purpose of the -
- of a proficiency program in general is really for the
laboratory to do a self-assessment. If you break down quality
20 assurance, there's two parts. There's quality control,
21 practices that you do everyday to make sure that you're doing
22 your job right, and there's quality assessment. That's
23 constant, rigorous, day-after-day monitoring your work, so that
24 you know how you're doing, so that you have systems and
25 controls in place to identify errors when they happen, but more
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1 importantly to prevent them, and that's why it's so important
2 that laboratories participate in internal -- design internal
3 proficiency programs.
4 External -- you didn't ask me about external, but
5 external proficiency programs allow you to identify errors that
6 you'll never catch internally based on my experience. There
7 are some things that are just very rough to catch internally,
8 because you have the same people doing the same work in the
9 same manner, and they're making the same mistakes, so it's very
10 tough to catch them internally.
11 An external program -- an external proficiency
12 testing program is the best way of allowing a laboratory to
13 identify those kinds of errors. An internal proficiency
14 programming contrasts, allows the laboratory to be very
15 flexible and to tailor its program to identifying the things
16 that are important to that laboratory and to monitor the
17 laboratory's performance in that area. That requires, however,
18 a really careful deliberate process of designing the program,
19 very, very clear definition of what your objectives are for the
20 proficiency program, and then designing a sampling and a now
21 testing scheme to accomplish those objectives, and it is in a
22 continuous quality improvement mode, if you will. It's the
23 opportunity for the laboratory over a period of time to design
24 its program to address the issues that are of importance at
25 that time, and you know what? I've even forgotten what the
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1 original question was. I apologize.
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Q Well you were -- I was asking you to list the reasons -
sort of bullet why, in your opinion, this is not an effective
proficiency program, and I believe you gave one. Are there
other, if you will, bullet or categories that we can also flesh
out?
A Okay. Basically, from the very beginning the objectives
of the FBI's internal proficiency program have never been
explicitly objectively defined, and that's different than the
kind of sort of apple pie language you see about -- in this
documentation about what the objectives for their proficiency
program are. That's the kind of an objective that can serve as
the foundation for an experimental design. That's the next
step that's a problem with the FBI's program.
Their experimental design is not documented. That's
not simply a paperwork kind of an error. Their own program
requires that the design basis be documented. They call it a
test design protocol. That it would essentially allow an
independent reviewer like myself or the psycho-metrician of any
independent party to assess the technical rigor and
21 effectiveness of that program. Such a document does not exist,
22 so it was necessary to essentially infer the design basis from
23 the actual execution of the test.
24 Within the actual execution of the test, the
25 information that we do have available to us, there are a number
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1 of very, very important design flaws that limit the
2 applicability of the test and the extent to which the test is
3 representative of real work. My fear in that regard is that it
4 can give a user a false sense of security. There can be a
5 sense that, "Well, you know the FBI's successfully completed
6 their proficiency tests. They must be doing a good job."
7 That's not necessarily the case.
8 You could be doing a very good on this test and a
9 very poor job on day-to-day case work, so I'm concerned that
10 the design basis is so flawed by virtue of using multiple -
II using the same test subjects over and over again, by virtue of
12 not having elimination testing or testing for false positives.
13 That's a concern. That's sort of a quick tour.
14 Q Let me direct you to just one other category or potential
15 category. Are there some tests that increase the probability
16 of a subject passing?
17
18
19
A Oh, absolutely.
THE COURT: Try that question again, would you?
mean I know the witness answered it, but I --
I
20 Q
21 A
How about what did I just ask? Can you translate that?
If my objective was to design a proficiency test that
22 everybody would pass, it would be very easy to do, and, in
23 fact, I've actually had clients suggest that -- in the past
24 that too many people were failing the proficiency test, so that
25 we needed to dumb it down a little -- make it a little easier.
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1 So if your objective is to design a test that people can pass,
2 it's very easy to do. If you're objective is to truly
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understand how well are my folks doing in day-to-day work, then
you have to design a test that incorporates the elements of
day-to-day work that is representative of day-to-day work, and
that's what was not done in this case.
MR. EPSTEIN: If Your Honor please, because the next
area of testimony will be moving to a chart that Ms. Arzizu
developed, which is really just a condensation of one of the
government documents, and because we'll be going through that
at length, may I suggest that this be an appropriate time for
recessing?
THE COURT: Surely. Thank you.
stop for today and resume 9:30 tomorrow.
All right. We'll
Is that convenient?
MR. PERRICONE: That's fine, Your Honor.
THE COURT: All right, then we ask you back tomorrow
17 morning, Ms. Arzizu.
18 MS. ARZIZU: I can wear the same clothes.
19 THE COURT: I assure you that I will.
20
21
* * * * *
Page 143
143
1 CERTIFICATION
2 We, PAMELA ARCE and PATRICIA C. REPKO, certify that
3 the foregoing is a correct transcript to the best of our
4 ability, from the electronic sound recording of the proceedings
5 in the above-entitled matter.
6
7 8 9
10 11 12 13 14
PAMELA ARCE
PATRICIA C. REP ° ~ DIANA DOMAN TRANSCRIBING, INC.
Date: March 1, 2002
