Read past 2012 issue (Issue 1 of 3)
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Read past 2012 issue (Issue 1 of 3)
Volume 1 of 3, 2012 PRESIDENT’S 3 MESSAGE LETTER FROM THE EDITOR 5 EXPERTS RECOMMEND MEASURES TO REDUCE HUMAN ERROR IN FINGERPRINT ANALYSIS 6 ELECTROSTATIC DUST LIFTING ON METALLIC SURFACES USING AUTOMOTIVE WINDOW TINTING FILM AS A NONCONDUCTIVE BARRIER 9 STATE OF NH V. RICHARD MOULTON ORDER TO PRECLUDE A WITNESS 13 TRAINING 20,21 OPPORTUNITIES THE UN-COMFORT ZONE WITH ROB WILSON 23 November 14th through November 16th, 2012 Crowne Plaza Hotel A HISTORY OF FORENSICS Nashua, NH “Forensics” is derived from the Latin word “forensis” which had to do with public forums where people gathered to discuss, argue, or debate topics of interest or concern. Check the website (www.nediai.org) for details and updates! The NEDIAI Journal is the official publication of the New England Division of the International Association for Identification. Statements, opinions or views expressed in articles contained in the Journal do not necessarily represent those of the NEDIAI nor the agency employing the article’s author(s). NEDIAI neither guarantees, warrants, nor endorses the statements, opinions, views, or techniques presented unless otherwise noted, but offers information to the readership. Articles published may contain processes utilizing chemicals or combinations of chemicals which may be hazardous or potentially hazardous to the user’s health. It is strongly recommended that appropriate caution and procedures be exercised when using hazardous or potentially hazardous chemicals or combinations of chemicals where the hazards are not fully known. 2 01 2 EXECUTIVE BOARD: P RESIDENT P HILLIP N ICHOLS T EL. (6 0 3) 59 4- 35 00 EMAIL: NICHOLSP@ N ASHUAP D . COM N ASHUA P OLICE D EPT. P O B OX 7 8 5 N ASHUA, N H 03 0 61 1 ST V P J OHN G RASSEL T EL. (4 0 1) 44 4- 10 98 EMAIL: JGRASSEL@ RISP. RI. GOV R I S TATE P OLICE 3 11 D ANIELSON P IKE N ORTH S CITUATE, RI 02 85 7 2 ND V P S COTT B RYANT T EL. (2 0 7) 62 4- 71 43 EMAIL: S COTT. A . B RYANT@ M AINE. GOV M AINE S TATE P OLICE 36 H OSPITAL S TREET A UGUSTA, M E 0 43 33 3 RD V P J ASON C OVEY T EL. (8 0 2) 38 8- 31 91 EMAIL: JCOVEY@ POLICE. MIDDLEBURY. VT. US M IDDLEBURY P OLICE D EPT. 1 L UCIUS S HAW L ANE M IDDLEBURY, V T 0 5 7 5 3 4 TH V P R ACHEL L EMERY T EL. (6 1 7) 34 3- 59 47 EMAIL: L EMERYR . BPD@ CITYOFBOSTON. GOV B OSTON P OLICE D EPARTMENT 1 S CHROEDER P LAZA B OSTON, M A 02 12 0 S ECRETARY L ISA C ORSON T EL. (6 0 3) 27 1- 35 73 EMAIL: LISA. CORSON@ DOS. NH. GOV N H S TATE P OLICE F ORENSICL AB 33 H AZEN D RIVE C ONCORD, NH 03 30 5 T REASURER E MILY RICE T EL. (6 0 3) 27 1- 35 73 EMAIL: EMILY. RICE@ DOS. NH. GOV N H S TATE P OLICE F ORENSIC L AB 3 3 H AZEN D RIVE C ONCORD, N H 0 33 05 S GT. P AUL S OUZA T EL. (5 0 8) 74 6- 51 55 EMAIL: BCISOUZA@ AOL. COM 8 R C HARLOTTE D RIVE P LYMOUTH, MA 0 23 6 0 W EBMASTER J ASON C OVEY T EL. (8 0 2) 38 8- 31 91 EMAIL: JCOVEY@ POLICE. MIDDLEBURY. VT. US M IDDLEBURY P OLICE D EPT. 1 L UCIUS S HAW L ANE M IDDLEBURY, V T 0 5 7 5 3 E DITOR A MANDA A RMSTRONG T EL. (6 1 7) 34 3- 55 76 EMAIL: ARMSTRONGA. BPD@ CITYOFBOSTON. GOV B OSTON P OLICE D EPARTMENT 1 S CHROEDER P LAZA B OSTON, M A 02 12 0 H ISTORIAN K ENNETH M ARTIN T EL. (9 7 8) 31 8- 18 51 EMAIL: K ENNETH. M ARTIN@ THEIAI. ORG M ASSACHUSETTS S TATE P OLICE 14 2 A N ORTH R D, R TE 1 1 7 S UDBURY, M A 0 17 7 6 R EGION. R EP. M ARK Z ABINSKI T EL. (4 0 1) 87 4- 28 93 E MAIL:MJ Z @U RI. E DU R I S TATE C RIME L AB 4 1 L OWER C OLLEGE R OAD KINGSTON, R I 02 8 81 P . R. L IAISON B RAIN B ATTAGLIA T EL. (6 0 3) 32 1- 44 57 E MAIL: BATTAGLIAB1 2 4 @ COMCAST. NET N ASHUA P OLICE D EPT ( R ETIRED) AT A RMS B OARD OF D IRECTORS: C HAIRMAN D EBORAH R EBEIRO T EL. (5 0 8) 35 8- 32 12 EMAIL: DEBORAH. REBEIRO@ STATE. MA. US M ASSACHUSETTS S TATE P OLICE 59 H ORSE P OND R OAD S UDBURY, M A 0 1 77 6 ME A LICIA W ILCOX T EL. (2 0 7) 31 4- 81 5 1 EMAIL: W ILCOXA @ HUSSON. EDU H USSON U NIVERSITY 1 C OLLEGE C IRCLE B ANGOR, M E 0 4 4 0 1 NH T IMOTHY B URT T EL. (6 0 3) 74 2- 46 4 6 EMAIL: T. BURT@ CI. DOVER. NH. US D OVER N H P OLICE D EPARTMENT 46 L OCUST S TREET D OVER, N H 0 38 20 VT M ICHELLE M AGEE T EL. ( 80 2) 38 8- 31 9 1 EMAIL: MMAGEE@ MIDDLEBURYPOLICE. ORG M IDDLEBURY P OLICE D EPT. 1 L UCIUS S HAW L ANE M IDDLEBURY, VT 0 5 75 3 MA K ENNETH H EFFERNAN T EL. (9 7 8)- 39 2- 40 0 2 EMAIL: KENNETH. HEFFERNAN@ POL. STATE. MA. US M ASSACHUSETTS S TATE P OLICE 3 1 M ACA RTHUR D RIVE D EVENS, M A 0 14 34 RI A MY D UHAIME T EL. (4 0 1) 87 4- 28 93 EMAIL: ASC@ URI. EDU R I S TATE C RIME L AB 4 1 L OWER C OLLEGE R OAD K INGSTON, R I 0 2 8 8 1 For membership applications, training opportunities, and more information on the NEDIAI, please visit our website: www.NEDIAI.org Page 3 VOLUME 1 OF 3, 2012 P.O. Box 1043 Concord NH 03302-1043 Massachusetts New Hampshire Rhode Island Vermont Maine Greetings NEDIAI Members, ―Excellence through Knowledge‖ As I begin my duties as President, I want to take a moment to congratulate Captain Deborah Rebeiro of the Massachusetts State Police. Her efforts as President resulted in a very successful conference held on Cape Cod. Even in the aftermath of Hurricane Irene she provided the perfect learning environment for me as we plan this year’s conference. Captain Rebeiro was able to secure some of the most knowledgeable people in the business which provided tremendous insight into the future. As we continue to advance from A.F.I.S. to Biometrics, let’s not forget how we got here. This will be the 20th Annual Conference for the NEDIAI and I am pleased, no honored, to have this opportunity to be the president. 2012 is going to be a monumental year. With current budgetary matters being as they are, we will have to be more innovative in our training. I therefore invite your ideas, as we plan and execute our training year. Shortly there will be a survey asking your input for training ideas. Please respond with not only ideas but who you feel is qualified to speak on the subject. Based upon your input, a training agenda will be formulated. I am excited about this year and look forward to spending time with you all in November 2012 and throughout the year. This year’s conference will be held at the Crowne Plaza Hotel, in Nashua, New Hampshire from November 14th through November 16th, 2012. Plan to attend now, you will not be disappointed! Sergeant Phillip Nichols President NEDIAI (603) 620-0263 Excellence through Knowledge Page 5 VOLUME 1 OF 3, 2012 Letter from the Editor Hello everyone, 2012 is already off to a great start. Planning is underway for the 20th Annual NEDIAI Educational conference to be held this year in Nashua, NH. You will find a letter from member Steve Ostrowski on page 21. He is the technical coordinator and I encourage all of you to contact him with ideas for presenters, workshops, or if you would like to become a presenter yourself. We can all work together to make this a great educational opportunity! I hope you enjoy the articles in this edition of the Journal. There is a new NIST report out regarding human error in fingerprint analysis. You can find the beginning of the article on page 6 and a link to read the full document online at the bottom of the page. You will also find in this Journal a NH judges ruling regarding fracture matches in a case where the defendant moved to preclude the states witness. As always, I welcome any feedback! If there is something you do or don’t like about the Journal, please let me know. I’m also looking for any interesting articles you have read or maybe written. We are a community and the more we work together the better we will be so I encourage you to get involved! Happy reading, Amanda “ I don’t believe you have to be better than everybody else. I believe you have to be better than you ever thought you could be.” -Ken Venturi Can you guess the source of this ―ridge detail‖? Image 1 Image 2 Answers on page 11 Page 6 VOLUME 1 OF 3, 2012 Experts Recommend Measures to Reduce Human Error in Fingerprint Analysis From NIST Tech Beat: February 21, 2012 Contact: Michael E. Newman, 301-975-3025 A new report by the National Institute of Standards and Technology (NIST) and the Department of Justice’s National Institute of Justice (NIJ) has documented 149 potential sources of human error in the analysis of crime scene fingerprints. The study by a working group of 34 experts recommends a series of improvements to significantly reduce or eliminate the errors, based on the findings from its three-year scientific assessment of the effects of human factors on forensic latent print analysis. The working group consisted of experts from various forensic disciplines, statisticians, psychologists, engineers and other scientific experts, as well as legal scholars and representatives of professional organizations. For more than a century, the most reliable and legally accepted method for identifying the perpetrator of a crime has been to compare latent fingerprints—those left by chance or accident at a crime scene—to known (or exemplar) prints on file. However, several high-profile cases in the United States and abroad during the past 20 years have shown that forensic examiners can sometimes make mistakes when analyzing or comparing prints, or even in communicating findings to law enforcement officials or juries. Such errors can be devastating, resulting in missed opportunities to identify the guilty or wrongful convictions of the innocent. As with any laboratory procedure, there are a multitude of human factors that can influence the results of latent print analysis—examples include inadequate training, poor judgment, vision limitations, lack of sleep and stress. The chances of error increase if the examiner also must deal with Law enforcement officers locating latent fingerprints on the organizational factors such as a lack of standards or quality control, poor side of a van. Credit: FBI management, insufficient resources or substandard working conditions (such as bad lighting). The Expert Working Group on Human Factors in Latent Print Analysis was convened in December 2008 to study these factors for the first time using an evidence-based, scientific review of literature, case studies and previous analyses; and then draw on the knowledge gained to estimate the incidence, severity and costs of errors; evaluate approaches to reducing errors and identify the most effective; and promote best practices through a national agenda for error reduction. Much of the report provides a comprehensive discussion of these factors and how they relate to all aspects of latent print examinations, from acquisition of evidence through communicating results in documents and testimony. Based on what it learned, the working group outlined 34 recommendations addressing the problems resulting from human error. Among the proposed improvements: Urging management at forensic service provider facilities to foster a culture in which it is understood that some human error is inevitable and that openness about errors leads to improvements in practice; Documenting latent print examinations at a detail level that would permit another examiner to assess the accuracy and validity of the work; Requiring agencies that employ latent print examiners to establish requirements and guidelines for reporting, documentation and testimony that are reviewed for each examiner at least annually; and Intensely preparing print examiners and other forensic experts to give credible and accurate testimony in trials, stressing skills such as using lay language, creating visuals that can easily be understood, and thinking clearly under crossexamination. The working group also identified a number of future steps that should be taken to advance the error reduction effort, including: prerequisite educational and skill standards for examiner training; continuing education, mentoring and accreditation/certification programs; research to integrate automated systems into the early stages of print analysis; and a comprehensive testing program for ensuring examiner competency and proficiency. The report, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach (NIST Interagency Report 7842) is available at http://www.nist.gov/manuscript-publication-search.cfm?pub_id=910745. Page 9 VOLUME 1 OF 3, 2012 Electrostatic Dust Lifting on Metallic Surfaces Using Automotive Window Tinting Film as a Nonconductive Barrier From the Journal of Forensic Identification, Vol. 55, No. 5, September/October 2005* Thomas W. Adair Westminster Police Department Westminster, CO Abstract: Electrostatic devices use a high-voltage electrical current to charge a surface and attract dust particles left from shoe outsoles and other objects to a metallic film. Placing this film in direct contact with a conductive substrate, such as a metal vehicle, can cause damage to the film and increases the risk of injury to the analyst and damage to property. The use of a nonconductive film barrier allows for the use of the metallic film and the electrostatic dust lifter in obtaining shoe impressions from metal surfaces such as automobiles and countertops. Introduction Electrostatic dust print lifters are useful devices for lifting dusty shoe impressions from a variety of surfaces including carpeting, fabric, wood, and human skin (personal observation) [1, 2]. These devices use a high-voltage power unit to charge a metallic film, which is placed over the suspected impression. The electrostatic charge causes the impression to adhere to the black-colored metallic film, giving the impression the best possible contrast. Documenting shoe impressions on vehicles, however, can be challenging. Automobiles can present curved surfaces with limited surface area, making tripod setup for photography difficult. Photography can also be difficult in daylight or adverse weather conditions. Moving vehicles to an indoor processing garage can also damage impressions during transport. For these reasons and others, the use of an electrostatic dust print lifter is ideal for recovering shoe impressions from automobile surfaces. Materials Two different electrostatic devices were used to lift impressions in both casework and research. A Kinderprint (model 3C, 120v/60hz) unit with attached cable probes and a Sirchie (model ESP900) unit with enclosed probe connectors both produced excellent and comparable results. Axius window tinting film (#53010 in "Limo Dark" shading) was used as a nonconductive film barrier (Figure 1). The film is rated as 20% VLT (visible light transmission) and is typically sold in auto supply stores. Metallic lifting film can be purchased in sheet or roll form from several forensic supply companies. Legal-size lifting sheets work well for most applications. Both types of film can be further cut to conform to conditions found at the crime scene. Several different electrostatic lifting devices are currently marketed in both hand-held and box configurations. Figure 1 Photograph of dusty shoe impression on automotive tinting film Figure 2 Photograph of window tinting film and metallic lifting sheet on a vehicle hood Continued on page 10 VOLUME 1 OF 3, 2012 Page 10 Continued from page 9 Method Visible footwear impressions should be marked near the toe and heel portions with drafting dots or masking tape so the window tinting film can be centered accurately. The window tinting film should be cut large enough to allow for a 2" to 3" border edge once the metallic film is centered over the impression (Figure 2). Once the window tinting film has been centered over the shoe impression, it can be secured on the corners with drafting dots or masking tape. The metallic sheet is then placed on top of the window tinting film and is also secured with drafting dots or masking tape. The electrostatic dust lifting device is then set up as it would be for use on other types of surfaces with one exception: In many instances, the metal substrate can be used as the grounding plane, negating the need to set up a grounding plate or sheet. Some vehicles with nonmetallic panels may still require the use of a grounding plate, depending on the location of the impression. Because of the conductivity of metallic substrates, it is recommended that the device be turned to its lowest setting when beginning the operation. The setting can be increased slowly to achieve the desired attraction between the metallic sheet and the substrate. When using a model similar to the Kinderprint 3C, start with the grounding rod several inches away from the lifting film and slowly move it toward the film until the desired attraction between the lifting film and the substrate is achieved. Geller and Warrington [3] report that stun guns can be modified to provide results that are similar to those of the types of lifting devices described above. One disadvantage of the stun gun technique is that, without major modification, it is difficult, if not impossible in some cases, to regulate the output level of most stun guns. Although the use of stun gun devices on nonmetallic surfaces is possible, the inability to control the output level may produce undesirable results when lifting from highly conductive substrates. The authors also point out that stun guns are illegal, even for police personnel, in several states and large municipalities. It is recommended that you check your state and local statutes before purchasing a stun gun for use as a lifting device. Some situations may offer a limited time to develop the impression, or window tinting film may not be obtainable. In these limited situations, the analyst should consider the use of another type of barrier such as black plastic garbage bags (Figure 3). One major disadvantage of this type of plastic barrier is the presence of creases and small surface defects that are usually found on the surfaces of plastic bags. These defects may limit the ability of the film to make adequate contact with the shoe impression and create unacceptable shadows during subsequent photography. If a garbage bag must be used, it is recommended that the crease be placed in the arch area of the impression. When using the rubber roller to smooth the film out, start at the crease and roll out toward the edges. Thicker black plastic sheeting, such as heavy-duty garbage bags and landscaping weed barriers, has yielded poor results. Figure 3 Photograph of dusty shoe impression on black plastic garbage bag Discussion Electrostatic dust print lifters are an effective tool for obtaining dusty shoe impressions on a variety of surfaces. The electrical nature of these devices, however, has made their use on metal surfaces challenging. Placing metallic lifting sheets directly on metal surfaces can cause damage to the film, the evidence, and personal property. The improper use of these devices can also increase the risk of injury to the analyst. Bodziak [1] recommends the use of a Mylar barrier between the film sheet and the metal surface. This technique can yield excellent results; however, some smaller agencies may have difficulty finding clear Mylar sheets, especially on short notice. Mylar may also run at higher costs than window tinting film, depending on the source supplier and quantity ordered. Continued on following page Page 11 VOLUME 1 OF 3, 2012 Continued from previous page In addition, the metallic lifting sheet must remain attached to the Mylar sheet for viewing and photography. For cost-conscious agencies, the window tinting film offers some distinct advantages. The film can be found at many retail auto supplies stores and the metallic lifting sheet can be reused on several impressions before being discarded. The application of window tinting film between the metallic lifting sheet and the shoe impression has proven to be effective in obtaining dusty shoe impressions. Although photographic methods may generally yield better results, the location of the shoe impression, lighting and weather conditions, and the camera equipment that is available may all limit the success or practicality of these methods. Electrostatic dust print lifters are simple to operate and may yield excellent results. Electrostatic lifts are also generally regarded as a nondestructive collection method that allows for the use of other processing techniques, if desired. As in every case, the quality of the impression, the surface it is on, and the skills of the analyst are all major factors that determine the success of the collection and preservation of dusty shoe impressions. Practice with this method is highly recommended before attempting it on casework. Findings of additional nonconductive barriers should be reported to augment the possible tools available to the crime scene analyst. For further information, please contact: Thomas W. Adair Westminster Police Department 9110 Yates Street Westminster, CO 80031 [email protected] References 1. Bodziak, W. J. Footwear Impression Evidence. CRC Press: Boca Raton, FL, 1995. 2. Keith, L.V. Footwear Impressions on Fabric. J. For. Ident. 2002, 52 (6), 681-685. Geller, J.; Warrington, R. J. Use of "Stun Gun" Devices for Making Electrostatic Dust Print Lifts. J. For. Ident. 1994, 44 (4), 364-374. Can you guess the source of this “ridge detail”? Answers from page 5 Image 1 Emperor Angelfish at the New England Aquarium Image 2 Condensation on a car window Thanks to Ioan Truta for this image! Weird New England Laws: MA: At a wake, mourners may eat no more than three sandwiches -It is illegal to wear a goatee without a license -No gorilla is allowed in the back seat of any car -Quakers and witches are banned ME: You may not step out of a plane in flight -After January 14th, you will be charged a fine for still having up your Christmas decorations NH: It is illegal to see the clothes one is wearing to pay off a gambling debt -You may not tap your feet, nod your head, or in any way keep time to the music in a tavern, restaurant, or café RI: It is illegal to throw pickle juice on a trolley -No one may bite off another’s leg VT: Women must obtain written permission from their husbands to wear false teeth -It is illegal to whistle underwater Page 13 VOLUME 1 OF 3, 2012 STATE OF NEW HAMPSHIRE CARROLL,SS SUPERIOR COURT Docket No. 2011-CR-041 State of New Hampshire v. Richard Moulton ORDER ON MOTION TO PRECLUDE WITNESS (OSTROWSKI) The defendant moved to preclude a witness for the State, Stephen Ostrowski, from testifying to his conclusion concerning the matching of tape ends, or in the alternative for a Daubert hearing, Daubert v. Merrell Dow Chemical, 509 U.S. 579 (1993), to determine whether Mr. Ostrowski may be permitted to testify about "fracture matching," and in particular to tape end matching, as an expert. The State objected, asserting that the record before the court, particularly the 44 page transcript of the deposition of Mr. Ostrowski in this case, is sufficient for the court to first determine that it does not need to conduct a Daubert hearing and then determine that Mr. Ostrowski may testify as an expert in the matching of tape ends. By order dated January 6, 2012, the court determined that, on the record then before it, the application of fracture matching techniques to tape ends is a "less usual or more complex" issue giving sufficient cause for questioning reliability, Baker Valley, 148 N.H. at 617, as to warrant a pre-trial hearing to assist the court in making the necessary determinations. The court accordingly defined ruling on the defendant's motion to preclude the witness pending hearing and requested the Clerk to schedule a hearing at which Mr. Ostrowski would be available to testify and at which counsel would be prepared to argue the admissibility of Mr. Ostrowski’s expert opinion. In that order, the court noted that because Mr. Ostrowski's deposition and the parties arguments as presented in their pleadings on this issue were already in the record and had been reviewed by the court, both Mr. Ostrowski's testimony and the parties' arguments at the hearing would supplement, but not duplicate, the record already before the court. The Daubert hearing was held on January 18,2012. Upon hearing, and upon consideration of the pleadings of the parties on this issue and of the deposition of the witness, the defendant's motion to preclude the witness is denied. At the hearing, the defense moved to continue the conclusion of the hearing and trial and to stay any order on the motion to preclude in order to give them time to consult an expert about articles or studies provided to them by the State just prior to the Daubert hearing. Because the court reaches its conclusions without reliance on the three articles or studies at issue, the motion to continue and stay is denied. The duty of the trial court when presented with disputed expert testimony is to determine whether it is admissible under N.H. Rule Evid. 702. Rule 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. N.H. R. Ev. 702. Thus, expert testimony must rise to a threshold level of reliability to be admissible. Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609, 613, 813 A.2d 409 (2002). In Baker Valley, we applied the Daubert framework for evaluating the reliability of expert testimony to Rule 702.ld. at 614. Subsequently, in 2004, the legislature enacted RSA 516:29-a, which provides: I. A witness shall not be allowed to offer expert testimony unless the court finds: (a) Such testimony is based upon sufficient facts or data; (b) Such testimony is the product of reliable principles and methods; and (c) The witness has applied the principles and methods reliably to the facts of the case. Continued on page 14 VOLUME 1 OF 3, 2012 Page 14 Continued from page 13 II. (a) In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert's opinions were supported by theories or techniques that: (1) Have been or can be tested; (2) Have been subjected to peer review and publication; (3) Have a known or potential rate of error; and (4) Are generally accepted in the appropriate scientific literature. (b) In making its findings, the court may consider other factors specific to the proffered testimony. "Section II of RSA 516:29-a unambiguously codifies the four Daubert factors we applied in Baker Valley, and section I(b) codifies Daubert's requirement that the court preliminarily assess 'whether the reasoning or methodology underlying the testimony is scientifically valid.'" State v. Langill, 157 N.H. 77, 85,945 A.2d 1, 2008 N.H. LEXIS 39, *16 (2008) (quoting Daubert, 509 U.S. at 592-93; citation omitted). "The trial court functions only as a gatekeeper, ensuring a methodology's reliability before permitting the fact- finder to determine the weight and credibility to be afforded an expert's testimony." Baker Valley, 148 N.H. at 616 (citation omitted). The inquiry is a flexible one, and the focus "must be solely on the principles and methodology, not on the conclusions that they generate." State v. Dahood, 148 N.H. 723, 727, 814 A.2d 159 (2002) (quotation omitted). Moreover, the list of Daubert factors are "meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Thus, one or more of these factors is relevant only "if appropriate to the circumstances." RSA 516:29-a, II(a). "Importantly, the Daubert test does not stand for the proposition that scientific knowledge must be absolute or irrefutable." Dahood, 1 48 N.H. at 727. To be sure, "it would be unreasonable to conclude that the subject of scientific testimony must be known to a certainty; arguably, there are no certainties in science." ld. (quotation omitted). Rather, "the proposed scientific testimony must be supported by appropriate validation-i.e., good grounds, based on what is known." Id. (quotation omitted). "[A]s long as an expert's scientific testimony rests upon good grounds, ... it should be tested by the adversary process-competing expert testimony and active cross-examination-rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies." Langill, 157 N.H. at 88,2008 N.H. LEXIS 39 at *24 (quotation omitted). Thus, "[i]f [the evidence] is of aid to a judge or jury, its deficiencies or weaknesses are a matter of defense, which affect the weight of the evidence but do not determine its admissibility." Dahood, 148 N.H. at 727 (citation omitted). In Langill, we interpreted RSA 516:29-a, I(c) as requiring the trial court to also "examine whether a witness has in actuality reliably applied the methodology to the facts of the case." Langill, 157 N.H. at 87, 2008 N.H. LEXIS 39 at *22. However, for the testimony to be inadmissible, the flaws in application must so infect the procedure as to skew the methodology itself ld. At 88. Otherwise, "the adversary process is available to highlight the etTors and permit the fact-fmder to assess the weight and credibility of the expert's conclusions."Id. (citation omitted). Baxter v. Temple, 157 N.H. 280,283-285 (2008). In order to make these determinations, the trial court is not always required to conduct a pre-trial hearing. We emphasize that our adoption of Daubert does not require a trial court to conduct a pre-trial hearing in every case involving disputed expert testimony. The decision to hold such an evidentiary hearing rests within the trial court's sound discretion. In cases where the testimony's reliability is properly taken for granted, or where the information before the court is sufficient to reach a reliability determination, the trial court need not and should not conduct an evidentiary hearing. Pre-trial hearings, thus, should be limited to the less usual or more complex cases where cause for questioning the expert's reliability anses. Continued on following page VOLUME 1 OF 3, 2012 Page 15 Continued from previous page Baker Valley, 148 N.H. at 617 (citations and quotations omitted). Prior to its January 6, 2012 order for a Daubert hearing, the court had reviewed Mr. Ostrowski's pretrial discovery deposition tmder oath and the cases cited by the State, particularly Commonwealth v. Gomes, 459 Mass. 194, 205-206 (2011), in supp01i of its assertion that no hearing was required because the requirements for admission had been met. The court disagreed, determining in that order instead that notwithstanding Gomes, 459 Mass. at 205-206 (concluding that trial judge acted within discretion in allowing witness to give expert fracture match opinion testimony concerning tape ends), and notwithstanding Mr. Ostrowski's testimony that he has previously been qualified in a New Hampshire Superior Court criminal case to testify to tape end matching, the application of fracture matching techniques to tape ends is a "less usual or more complex" issue giving sufficient cause for questioning reliability, Baker Valley, 148 N.H. at 617, as to warrant a pre-trial hearing to assist the court in making the necessary determinations. Had the record then included some of the additional information supplied at the hearing concerning the science of fracture matching and concerning Mr. Ostrowski's qualifications and experience, as it does now, the court would have concluded that this is not a less usual or more complex case where cause for questioning the expert's reliability arises and that because pre- trial Daubert hearings are to be limited to such cases, Baker Valley, 148 N.H. at 617, no hearing was necessary. Although the court lacked the information then to make such a determination, upon hearing it has such information now, and accordingly determines that the witness will not be precluded from testifying. As noted above, the State provided the defense with three articles or studies asserted to support its position just prior to the hearing. The court need not and does not decide whether a party is required to provide the other party all scholarly works it asserts in support of its burden under RSA 516:29-a prior to the hearing because the court need not and does not rely on the three articles or studies at issue here in making its decision. The court finds the conclusions of the Massachusetts Supreme Judicial Court in Gomes, 459 Mass. at 203-206, and the reasoning underlying those conclusions to be persuasive. But cf Jefferson v. State ,S.E.2d' 2011 Ga. App. LEXIS 962, (Ga. Ct. App. Nov. 3, 2011) (Overturning the trial court's decision to admit fracture match expert testimony concerning tape ends, explaining that under Harper v. State, 249 Ga. 519,292 S.E.2d 389 (1982), Georgia law requires such testimony to have "reached a verifiable state of scientific certainty" and that the state "had presented no expert witness who opined that the underlying scientific theory had reached a scientific stage of verifiable certainty.") Accordingly, so that this court's reasoning may be understood without need to locate a copy of the Massachusetts Supreme Judicial Court opinion in Gomes, the court sets out the relevant portions of Gomes here at length. The Gomes defendant was charged with first degree murder. Gomes, 459 Mass. at 195. On appeal, he asserted among other things that "expert testimony to the effect that there was a 'fracture match' between the exposed end of a roll of electrical tape found in the defendant's home and one end of a piece of tape found on the murder weapon was both incompetent and not based on science that had been shown to be reliable." ld. In its investigation, the police had discovered a bag held by electrical tape to the ejection port of a firearm used in the crime, id. at 203, and had discovered a roll of electrical tape in searching the defendant's apartment, id. at 197. At trial, a criminalist with the Boston police department compared the end of the roll of tape with the ends of the piece of tape affixed to the firearm. Id. at 198. "She found a 'fracture match' from which she opined that the piece taken from the gun had been severed from the roll of tape seized from the defendant's bedroom dresser drawer." ld. The defendant argues that the judge ened by admitting the opinion testimony of a criminalist with the Boston police department that one end of a piece of black electrical tape that held the velvet bag to the ejection port of the gun matched the end of the roll of electrical tape seized from the defendant's apartment. He asserts that the Commonwealth had failed to establish both that the science of "tapeend" (fracture) matching was reliable and that the criminalist was a competent expert in this field. The defendant also argues that counsel's failure to challenge the criminalist's opinion on these grounds constituted ineffective assistance of counsel. HN4In our review under G. L. c. 278, § 33E, which is more favorable to a defendant than the constitutional standard for effective assistance of counsel, we look to see if there was error, whether by the judge,the prosecutor, or defense counsel, and ifthere was, we then inquire if it created a substantial likelihood of a miscarriage of justice. Commonwealth v. Wright, 411 Mass. 678, 681-682, 584 N.E.2d 621 (1992). Continued on page 16 VOLUME 1 OF 3, 2012 Page 16 Gomes, 459 Mass. at 203-04. The defendant faults counsel for failing to request a hearing, pursuant to Commonwealth v. Lanigan, 419 Mass. 15,25-26, 641 N.E.2d 1342 (1994), to test the reliability of the science of "fracture matching." He further argues that the Commonwealth failed to satisfy the Lanigan standard. The witness described "fracture match" as a "physical match" or "jigsaw match" that occurs when a substance or an item has been broken into one or more pieces, and the jagged ends are observed to fit together. The underlying premise of a "fracture match" is that an item that is broken or torn by human action will not be fractured in exactly the same way twice. This is because the application of human force is not precisely reproducible, and the characteristics of a break or a tear will be different every time. Thus, a break or a tear brought about by human force will be unique, and the resulting ends at the point of the break or tear will interlock in a unique "match." The criminalist further testified that this nonreproducibility and uniqueness theory has been subject to peer review and publication, that efforts had been made to detetmine error rates, and that the theory has been generally accepted in the scientific community. The defendant has not refuted that testimony. Id. at 204. We have said that "general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue." Commonwealth v. Lanigan, supra at 26. In his decision denying the defendant's motion for a new trial, the motion judge, who also was the trial judge, indicated that, notwithstanding the absence of a Lanigan motion challenging the reliability of fracture matching science, he performed the Lanigan gatekeeper analysis at the hearing on the Commonwealth's motion in limine seeking admission of the fracture match testimony. The judge implicitly accepted the foundational testimony of the criminalist as to the general acceptance of fracture match theory within the scientific community. Moreover, he indicated that he relied on the witness's education, training, and experience, and looked to his own common sense in evaluating the reliability of fracture match theory, which depends not on esoteric scientific principles but rather on common experience that is within the grasp of the ordinary jury. This analysis was appropriate in the circumstances. See Commonwealth v. Goodman, 54 Mass. App. Ct. 385, 391, 765 N.E.2d 792 (2002). We accept the trial judge's observation, and conclude that he acted within his discretion in allowing the fracture match evidence. See Canavan's Case, 432 Mass. 304, 312, 733 N.E.2d 1042 (2000) (standard of review is abuse of discretion). Id. at 204-05. Indeed, "fracture-match" testimony has been accepted in at least five States, and the defendant has directed our attention to no case where the theory has been rejected. See Davis v. State , 2 So. 3d 952, 956 (Fla. 2008), cert. denied, 129 S. Ct. 2872, 174 L. Ed. 2d 585 (2009) (broken knife blade); Grim v. State, 841 So. 2d 455, 458-459 (Fla.), cert. denied, 540 U.S. 892, 124 S. Ct. 230, 157 L. Ed. 2d 166 (2003) (masking tape); State v. Dressner , 45 So. 3d 127, 134 (La. 2010), cert. denied, 131 S. Ct. 1605, 179 L. Ed. 2d 500 (2011) (broken knife blade); State v. Smith, 988 So. 2d 861, 867 (La. Ct. App. 2008) (wood); Commonwealth v. McCullum, 529 Pa. 117, 121, 602 A.2d 313 (1992) (broken jewel stone in bracelet); State v. Zuniga , 320 N.C. 233, 251-252, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 108 S. Ct. 359,98 L. Ed. 2d 384 (1987) (pieces oftorn newspaper); State v. Jackson, 111 Wash. App. 660, 667, 46 P.3d 257 (2002), affd, 150 Wn.2d 251, 76 P.3d 217 (2003) (duct tape). Id. at 205. There is no merit to the defendant's contention that the criminalist was not qualified to give a "fracture-match" opinion. He bases his argument largely on the alleged absence of any evidence that the witness had ever examined any evidence for a fracture match, that there was no evidence she had ever been qualified previously as a fracture match expert, and that fracture matching is not a subset of chemistry. The witness has a master's degree in forensic chemistry. She has had a wide range of fracture match experience involving a wide variety of materials in the course of her graduate studies in forensic chemistry. She had specific practice in performing fracture matches in workshops at graduate school. At least one court has held that fracture match testimony is an appropriate subject for opinion testimony by a forensic chemist. State v. Zuniga , supra at 252-253. "There is no requirement that testimony on a question of discrete knowledge come from an expert qualified in that subspecialty rather than from an expert more generally qualified." Commonwealth v. Mahoney, 406 Mass. 843, 852, 550 N.E.2d 1380 (1990). See M.S. Brodin & M. Avery, MASSACHUSETTS EVIDENCE§ 7.5.2, at 424-425 (8th ed. 2007 & Supp. 2011), and cases cited. To the point that the witness had never before been qualified as a fracture match expert, we have previously observed that "even for the most highly qualified expert there must always be a first time." Commonwealth v. Rhoades, 379 Mass. 810, 818,401 N.E.2d 342 (1980). Continued on page 18 VOLUME 1 OF 3, 2012 Page 18 Continued from page 18 Id. at 205-06. "The crucial issue is whether the witness has sufficient 'education, training, experience and familiarity' with the subject matter of the testimony." Letch v. Daniels, 401 Mass. 65, 68, 514 N.E.2d 675 (1987), Gill v. North Shore Radiological Assocs., I 0 Mass. App. Ct. 885, 886, 409 N.E.2d 248 (1980) (testimony of orthodontist permissible in dental malpractice action against defendant pedodontist). We conclude that the judge acted within his discretion in allowing the witness to give fracture match opinion testimony. See Letch v. Daniels, supra. Id. at 206. Here, the State asserts that Mr. Ostrowski will testify that a portion of duct tape associated with the scene of the alleged crime came from a specific roll of duct tape, which it asserts was found at the defendant's residence. Prior to the hearing, the court had Mr. Ostrowski's testimony at deposition concerning the principles and methods underlying hiswork, and brief reference in the deposition to articles and textbooks concerning the underlying science. That information, even in combination with Mr. Ostrowski's deposition explanations concerning principles and methods and their reliability, the court deemed insufficient to make the necessary determinations as to whether the offered testimony is the product of reliable principles and methods under RSA 516:29-a. Upon hearing, the court now has, among other things, the lab protocols used by the witness in conducting such examinations (Exhibit 1), the Bradley article referred to by Mr. Ostrowski during his deposition (Exhibit 3), and extracts from portions of the Vanderkolk textbook to which Mr. Ostrowski testified at deposition (Exhibit 7, page 12). Prior to hearing, the court had much more information from Mr. Ostrowski's deposition concerning whether his testimony was based upon sufficient facts or data and whether he had applied the principles and methods reliably to the facts of the case. Now, upon hearing, in addition to his testimony on these topics at deposition, the court now has Mr. Ostrowski's testimony to the effect that he has been permitted to testify as an expert in fracture matching in four homicide cases in New Hampshire, including the Sullivan County case he referenced in his deposition in which he testified to tape end matching, and to the effect that he has worked on 40 fracture matching cases, including 7 involving tape end matching, and that his personal error rate by blind second examination in real cases and in training exercises is zero, arid his testimony to the effect that he co-teaches a course entitled "Pattern Evidence Analysis"1 as an adjunct instructor at Boston University School of Medicine's Biomedical Forensic Science Graduate Program which instructs on "fracture matching,"including tape end matching, and has his detailed testimony concerning the ways in which the lab protocols for fracture matching, which the court now has (Exhibit 1), including application of the ACE-V (Analysis, Comparison, Evaluation, Verification) methodology, were followed in this case. Adopting the reasoning of the Gomes court, 459 Mass. at 203-06, and considering in addition to the deposition testimony previously before the court the portions of the testimony and exhibits presented at the hearing referred to above, the court concludes that the offered scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, that the offered·testimony is based upon sufficient facts or data, is the product of reliable principles and methods, and based upon a reliable application of the principles and methods to the facts of the case, and that Mr. Ostrowski is qualified as an expert in tlus area by knowledge, skill, experience, training, or education. Accordingly the motion to preclude his testimony is denied. So ordered. January 19,2012 Steven M. Houran Presiding Justice ________________________________________________ 1 Mr. Ostrowski testified that he uses the Vanderkolk textbook in this course. Page 20 VOLUME 1 OF 3, 2012 TRAINING OPPORTUNITIES THE NEDIAI PRESENTS: “ONE DAY IN MAY” FREE* TRAINING May 30th, 2012 Lynn MA Police Department 830hrs – 1500 hrs Crime Scene Processing of Footwear Impressions and Tire Tracks Instructor: Timothy Jackson CFWE/CLPE, FoCoSS Forensics Visit www.nediai.org or www.focossforensics.com for more information and to register. Registrations will be accepted on a first-come-first-served basis. Please contact our host Dave Hines ([email protected]) with any questions. *This training is FREE to NEIDIAI members, $25 for non-members (tuition to be applied to NEDIAI membership application fee). Scientific Analysis: Applying ACE-V and Daubert to Testimony Instructor: Michele Triplett Class Description: This course is designed for all friction ridge practitioners who arrive at conclusions and may need to explain those conclusions to attorneys or juries. Participants will discuss topics relevant to the Daubert criterion including: What is a science? Is ACE-V considered an appropriate scientific method? Are friction ridge conclusions scientific? What are the scientific theories and laws that support conclusions, and who developed these theories? Additional topics to be discussed are: blind verification, documentation, error rates, the views of the critics, and current court decisions. Class discussions will challenge various viewpoints in order to assess and expand our current beliefs. Practical exercises are designed to demonstrate the importance of using objective data to justify conclusions. This will result in improved skills for explaining the basis behind conclusions. By the end of this class, practitioners will be better prepared to articulate scientific concepts and the weight of scientific conclusions. These topics go beyond the realm of Daubert. They are routinely brought up in Frye hearings and may apply to any forensic examination. About the Instructor: Michele Triplett is the Forensic Operation Manager for the King County Sheriff’s Office in Seattle, WA. She holds a Bachelor of Science degree in Mathematics and Statistical Analysis from Washington State University and has been employed in the friction ridge identification discipline since 1991. Michele is an IAI Certified Latent Print Examiner. She currently serves on the IAI Editorial Review Board, the IAI General Forensics Subcommittee and chairs the IAI SII - Probability Modeling Study Subcommittee (PMSS). She is a member of the AAFS and a manuscript reviewer for the Journal of Forensic Sciences. Michele is a member of the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST) and the NIJ General Forensics Research and Development Technical Working Group. Location: Worcester Polytechnic Institute Haglund Room – in Student Center Hotel: Courtyard by Marriott 72 Grove Street, Worcester, MA 01605 508-363-0300 (state you are attending the Forensic School for a reduced rate) Dates/Times: Oct. 10-12, 2012 7:30am - 4:30pm Cost: $150 Please contact David Grady at [email protected], 508-868-6222 or Michele Triplett at [email protected], 206-819-3385 for more information and registration. Good Day Everyone, Preparations are already underway to make this year’s NEDIAI Annual Educational Conference a great training opportunity for everyone. I am the technical program coordinator and I am looking for some group participation. Over the past few years we have had excellent technical programs. We have had presenters from throughout the New England area as well as some from outside our region and I want to continue that for this conference. This year's conference will be held November 14-16, 2012 at The Crowne Plaza Hotel in Nashua, NH and I hope to be able to offer an array of lectures and workshops to choose from. Obviously, without presenters there would be no conference. We are all extremely busy and have backlogs, deadlines and court to deal with, but PLEASE consider dedicating a little time to prepare and present a short lecture or workshop. You can even co-present to share the work. I would like to carry on the tradition of tailoring some of the training to those who respond to many of the smaller crime scenes; the patrol officer or small department detective. I am looking for a series of short lectures on various forensic disciplines (e.g. evidence collection, crime scene photography, trace evidence, footwear/tire, latent prints, toolmarks, blood stain patterns). I am also looking for some case studies as this is a great way to learn from each other by seeing how our colleagues do things. A simple 20 or 30 minute presentation could consist of a handful of slides and if you start now, that is only a few slides per month to put together a talk. Start thinking of cases you have worked in the past, research projects, validation studies etc. that you can share with us. Plus you can put it on your CV. You may even consider repeating a topic that you have presented in the past. I respectfully request that you consider participating and help make this yet another outstanding conference. The NEDIAI is relying on a certain number of you to step forward and help educate our members and guest attendees (future members). Regards, ~Steve Stephen Ostrowski New Hampshire State Police Forensic Laboratory Email: [email protected] P.S. Feel free to recommend a presenter that you’ve had in the past or would like to see come to our local conference. I will try and make it happen. Did you know?? NEDIAI is on Facebook! 10th Annual Northeast Latent Print Forum Date: May 16th, 2012 Time: 9am to 3pm Location: Connecticut DPS Forensic Lab 278 Colony St, Meriden, CT Cost: $20 (includes lunch, coffee, pastries, refreshments) Contact: Kevin Parisi ([email protected]) You can search “New England Division I.A.I.” and “like” the page to stay up-to-date with current events, local trainings, and all your member info updates! See you online! Page 23 VOLUME 1 OF 3, 2012 THE UN-COMFORT ZONE with Robert Wilson Thrown into the Driver’s Seat On June 29, 1863, a 23 year old First Lieutenant received an unexpected promotion. The freckle faced, strawberry blonde, who graduated at the bottom of his class at West Point, was elevated directly to the rank of Brigadier General in the Union Army. He completely skipped over the traditional ranks in between of Captain, Major, and Colonel. As you can imagine such a promotion was met with skepticism, dismay, and envy by his former peers and superiors. Especially at a time when the South was winning against the North during the American Civil War. Major General Alfred Pleasonton, who promoted the boy, saw his gamble put to the test just four days later in the Battle of Gettysburg. The young general was put in charge of the Michigan Cavalry and tasked with keeping Confederate General Jeb Stuart from attacking the Union Army’s rear. Was he up to the task? Could he keep that dubious star on his shoulder that so many wanted removed? Motivated by the desire to prove himself, George Armstrong Custer, his gleaming saber outstretched in front of him, led the cavalry charge and held the Union line. His successful leadership served as a crucial contribution to the battle that was the turning point in the North winning the war. When leadership is thrust upon us, many of us are motivated to rise to the occasion. Sometimes, however, leadership must rise in a vacuum. What motivates us to become leaders when there are none? A few years ago, five friends and I went white water rafting for the very first time. We went on the upper Ocoee River in Tennessee where the rapids are rated Class Four. Not exactly the best choice for beginners, but we had a competent guide, who gave us plenty of instructions on when and how to paddle. He was so good that we were the only rafters in a group of ten rafts that did not capsize and get soaked. Then halfway through our trip, we went over a small waterfall. When our rubber raft hit the bottom it bent in the middle and folded up like a book. When it sprung back apart our guide was catapulted from the boat and landed several feet behind us. As our leaderless raft sped forward, getting further and further away from our guide, five of us thought, “Uh, oh, what are we going to do!” Before we could panic, my friend Bill started barking commands, “Left side four strokes! Right side two strokes!” With great relief we followed his orders and within minutes he had us safely out of the rushing white water and into the calmer water by the river bank where our guide was able to catch up to us. A leadership role can jump start motivation. When you have the responsibility of guiding others, it forces you to guide yourself first. I have found that volunteering for leadership roles at work and for non-profit organizations to be self-motivating. Back in the early 1990's, I had a particularly bad year. My mother passed away, a business venture failed, and I had a falling out with my best friend. Needless to say, I was in a funk, and seriously needed something to move me out it. That’s when I learned that my community association needed a new President. It was a huge job with a two year commitment that required fund raising, event planning, managing several committees, and supervising dozens of volunteers. It consumed tons of my time, but it also taught me that I could do more in a day than I ever knew. During that same two year period, I launched two new businesses both of which became success stories. As a manager, you can motivate your employees (or your volunteers) by giving them a mantle of leadership. Suddenly he or she will no longer be just another disaffected cog in the wheel. But with a position of responsibility, those persons will be empowered to do more and be more. Sure, it may require a greater effort on your part, but you will challenge their minds, expand their abilities, and imbue them with a sense of accomplishment. Robert Evans Wilson, Jr. is an author, speaker and humorist. He works with companies that want to be more competitive and with people who want to think like innovators. For more information on Robert's programs please visit http://www.jumpstartyourmeeting.com N. E . D.I . A.I . J OURNAL ONE SCHROEDER PLAZA L ATENT PRINT SECTION BOSTON, MA 0 2 1 2 0 20th Annual NEDIAI Conference Crowne Plaza Hotel Nashua, NH November 14th—16th, 2012 WE ARE ON THE WEB! www.NEDIAI.org