DAUBERT FACTORS

APPLIED TO THE EXAMINATION OF FOOTWEAR

EVIDENCEPresented by Sandy Wiersema

IAI Meeting, St. Louis, MO, August 2004

DAUBERT

●A Supreme Court decision that created a gate keeping role for trial judges as to the admissibility of scientific expert testimony

●Kumho is a subsequent decision that ordered trial judges to also apply Daubert to experience-based expert testimony

●Therefore, Daubert applies whether your discipline is scientific or technical

DAUBERT FACTORS

●What is the basic theory & has it been tested?

●Are there standards controlling the technique?

●Has the theory or technique been subjected to peer review & publication?

●What is the known or potential error rate?

●Is there general acceptance of the theory?

BASIC THEORY

●Shoe is capable of leaving an impression

●This impression can be compared to the original source

●As shoes wear, features change and these changes may be reflected in the impression

●Given sufficient clarity and accidental characteristics, a shoe may be identified to an impression

BASIC THEORY

●Shoe is capable of leaving an impression

IMPRESSIONS

BASIC THEORY

●This impression can be compared to the original source

DIFFERENT DESIGNS

SAME DESIGN

BASIC THEORY

●As shoes wear, features change and these changes may be reflected in the impression

WEAR

BASIC THEORY

●Given sufficient clarity and individual identifying characteristics, a shoe may be positively identified to an impression

IDENTIFICATION

BASIC THEORY

●Given sufficient clarity and individual identifying characteristics, a shoe may be positively identified to an impression

DEFINITION

●Clarity is the ability to record characteristics accurately in a specific medium○How do you define sufficient clarity?

DEFECTS ON A SHOE

DEFECTS ON AN INKED IMPRESSION

DEFECTS ON AN ELECTROSTATIC LIFT

DEFECTS IN A BLOODY IMPRESSION

BASIC THEORY

●Given sufficient clarity and individual identifying characteristics, a shoe may be positively identified to an impression

DEFINITION

●Identifying or accidental characteristics are those that randomly occur on the shoe outsole, i.e. wear, cuts, imbedded stones, etc.○How many identifying characteristics do

you need to make a positive identification?

IDENTIFICATION

MULTIPLECHARACTERISTICS

IDENTIFICATION WITH SINGLE CHARACTERISTIC

HAS THE THEORY BEEN TESTED?

●On an individual case by case basis●Several studies have been reported in

the literature●Expert critics want to see proof of

“statistically significant” results●FBI lab is currently conducting two

studies to address this concern

STANDARDS

●A test impression is made from the shoe●Test impression is used to aid in comparing

the following four areas○ General design (class characteristic)○ Physical size & shape (class characteristics)○ General condition/wear (class/identifying

characteristics)○ Random cuts, defects, etc. (identifying

characteristics)

QUESTIONED IMPRESSION

SHOE

TEST IMPRESSION

COMPARISON

WHY NOT LET THE JURY DO THE COMPARISON?

●Why is this a problem?●They don’t know where to look to

determine if an impression was made by another shoe.○Mold differences, stippling differences,

wear differences

COMPARISON

DIFFERENT STIPPLING

SAME SIZE & DESIGN

THREE DIFFERENT MOLDS

STANDARDS

●These exams are conducted the same way in the US and in 35-40 foreign countries

●The methods have been published in text books and in numerous technical articles

●ENFSI is the European organization setting standards for forensic examinations

●ASCLD accredited laboratories must maintain specific protocols and meet specific criteria for method validation

PEER REVIEW/PUBLICATION

●Presentations at Forensic Meetings○American Academy of Forensic Sciences○ International Association for Identification○Regional Forensic Meetings (CAC, MAAFS,

MAFS, NEAFS, SAFS, SWAFS, Regional IAI)

○European Shoeprint/Toolmark Association○ENFSI

PEER REVIEW/PUBLICATION

●Footwear Certification program is operated under the auspices of the International Association for Identification

●ASCLD accredited labs - many/all footwear cases are peer reviewed

PEER REVIEW/PUBLICATION

●JOURNALS○Journal of Forensic Sciences○Science and Justice○Journal of Forensic Identification○ Information Bulletin for Shoeprint/Toolmark

Examiners○ International Journal of Forensic Sciences○Canadian Journal of Forensic Sciences

ERROR RATE

●There are no known or potential error rates in the methodology

●Any error that occurs is due to the lack of experience of a particular examiner

●Error rate requires a test repeatedly performed using the same controlled conditions - not applicable to most of the Forensic Sciences

ERROR RATE

●There is no legal requirement that opinion testimony of experts is admissible only if they are able to state their opinions with a quantifiable degree of certainty

ERROR RATE

●Let the court know if your cases are peer reviewed

●Let the court know if you participate in proficiency testing

●Let the court know that the evidence is available for another expert to examine

GENERAL ACCEPTANCE

●1786 - footwear identification was first accepted in the Richardson case in Scotland

●1930’s - footwear evidence was accepted in the US courts

●Footwear evidence is routinely accepted in courts in the US, Canada and Europe

DAUBERT DECISIONS

●US v Shawn S. Gilreath, No. 1:96-CR-472, Clayton County Courthouse, Eleventh Circuit, Jonesboro, GA - Daubert hearing 1998 - footwear & questioned documents accepted

DAUBERT DECISIONS

●US v Clinton Earl John Ross, II, Crim. No. 99-70, US Court of Appeals for the Eighth Circuit No 00-1318/3598 filed: August 29, 2001 - footwear & tire evidence accepted

DAUBERT DECISIONS

●US v Anthony DeWayne Allen, Cause No. 1:01-CR-80, US District Court, Seventh Circuit, Northern District of Indiana, Fort Wayne Division, June 10, 2002 - Daubert hearing - footwear evidence accepted. Supplemental Daubert held June 19, 2002 - ruled original examiner was qualified to testify to footwear results.

DAUBERT DECISIONS

●Philadelphia, PA, Third Circuit, February 2003, Daubert hearing - footwear evidence accepted - opinion has not been published

DAUBERT DECISIONS

●State of Indiana v Nelson Marks, Superior Court of Marion County, Cause No. 49G060209MR235795, August 2003, 702 Hearing – footwear evidence accepted – opinion not published

DAUBERT DECISIONS

●US v Michael A. Mahone, US District Court, District of Maine, CR-03-93-B-W, order regarding motions in limine, August 6, 2004 – footwear impression testimony is admissible under the standards set forth both in Rule 702 and Daubert