3 National Research Council (U.S.) et al. 119 S. Ct. at 1176 ("whether Daubert's specific factors are, or are not, *864 reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine."). [5] Vanderkolk explained that he teaches footwear examination by a widely accepted method called ACE-V, an acronym for Analysis, Comparison, Evaluation, and Verification. These tests are then passed onto the control quality assurance unit who review the results of the tests. United States District Court, N.D. Indiana, Fort Wayne Division. Wiersema further examines the impressions for wear, noting whether the wear is in the same location on both impressions. Impressions at scenes can be collected in several different ways. Print off the Culprit Shoe Impression sheet and 3 copies of the Suspect Shoe Impression sheet. Wiersema then explained that Bodziak ". It did submit, in its request for a hearing, Pitzen's curriculum vitae which describes Pitzen's qualifications and training in the area of forensic science. Having a consistency similar to very fine talcum powder, its distribution is easily ruined by simple actions like dusting down clothes or washing hands.29, Since the test only identifies the principal elements of the residue, it can be fooled by a careful composition of the same elements obtained from different sources such as fireworks or even auto brake dust.30, To be specific, fundamentally, gunshot residue examiners are seeking microscopic particles containing lead (Pb), barium (Ba), and antimony (Sb) which, for the purposes of this article, are found uniquely in combination only in the primers of firearms cartridges. This can be done visually or by comparison … "Kumho, 526 U.S. at 149, 119 S. Ct. at 1175 (brackets in original) (quoting Daubert, 509 U.S. at 592, 113 S.Ct. pp. It bore a wavy pattern that looked like a shoe print. Such a conclusion will have to wait until after a supplemental Daubert hearing wherein the court has an opportunity to review Pitzen's proposed testimony. Accordingly, to the extent, Defendant's Motion challenges the admissibility of expert testimony rooted in this traditional methodology generally, the Motion in Limine is DENIED. As a result, the court concludes that the methodology of footwear impression evidence described by the Government witnesses is reliable and meets the standards for admissibility of expert testimony. Judge Pollack stated: At the upcoming trial, the presentation of expert fingerprint testimony by the government, and the presentation of countering expert fingerprint testimony by any of the defendants, will be subject to the court's oversight prior to presentation of such testimony before the jury, with a view to insuring that any proposed expert witness possesses the appropriate expert qualifications and that fingerprints offered in evidence will be of a quality arguably susceptible of responsible analysis, comparison and evaluation. Gunshot Residue Evidence in a Larger Context. Both explained that the critical comparison phase of the analysis, while it may appear to Defendant to be a simple matching process not requiring any specialized skill, requires a critically trained eye to ensure accurate results. Unfortunately, latent crime scene prints are often low quality, reducing accurate identification of … The profile from the suspect's shoe matched a sample from the only dog on the property where the slayings occurred. Included within the categories of impression evidence are fingerprints, tire tread evidence, lift prints, rubber stamp, typewriter or "any type of an object that can impress itself against another surface, and leave an impression itself against another surface." DePaepe v. General Motors, 141 F.3d 715, 720 (7th Cir.1998). . As a result, Andrews clearly explained that the gunshot residue did not unequivocally show that Flowers had fired a gun. Counsel may also challenge, through cross-examination, the soundness of the factual underpinnings upon which Pitzen bases his conclusions as well as the correctness of the expert's conclusions based on that analysis. Here, Wiersema testified that shoe print evidence is a subset of a body of evidence known generally as impression evidence. Allen's motion in limine is directed at this testimony and he argues that the shoe print evidence is not reliable scientific evidence and will not be helpful to the jury in deciding an issue of fact. 702 requires a district court to determine "(1) whether the expert would testify to valid scientific knowledge, and (2) whether that testimony would assist the trier of fact with a fact at issue." With these principles in mind, the Court now turns to the background for the testimony the Government seeks to offer at trial. Next, Wiersema begins the critical analysis phase in which she examines the manufactured features of the two impressions to observe whether the designs align in the same locations, have a similar size, and whether they meet the edge of the outsole in the proper location. p. 57. 509 U.S. at 596, 113 S. Ct. at 2798. The Adidas shoe is one of the key pieces of evidence in the state’s case against Wise. Vanderkolk oversees laboratory operations and supervises crime scene technicians. Footwear Impression Evidence. However, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. A clear cover protects the gelatin lift from contamination. These forensic evidence together helped send Flowers to death row, but critics argue that this field is subjective and unscientific. Since Doyle Simpsons gun was never found, the examiners could not obtain a bullet in an optional condition and had to rely on the bullets extracted from the wooden post. The casting process involves pouring a dense liquid into the actual shoe imprint and allowing it to set. [4] She explained that she uses a commercially prepared gelatin lift which is comprised of a thin gelatin material that is poured over the top of a canvas or fabric backing. The court must leave it to the trier of fact to evaluate the "soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis." Before the court is Defendant, Anthony Allen's ("Allen's") "Motion in Limine" filed *858 on March 28, 2002 seeking to exclude certain expert opinions relating to footwear impression evidence anticipated to be elicited at trial by a government witness based upon the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. . Shoeprints are often times recovered at crime scenes. § 2113(a). Both described a similar process whereby test impressions are made and critically compared to one another by qualified, trained, and experienced examiners. Identifications are largely subjective and are based on the examiner's experience." eds., Ballistic Imagine (The National Academies Press 2008), 3. Putting Statistics into Forensic Firearms Identification (National Institute of Standards and Technology, February 8, 2018). The greater the number of matching cells, the more similar the two surfaces, and the more likely they are to have come from the same gun”.22 The NIST itself admits that the sample size was small and not enough to “calculate realistic error rates for actual casework”. The community of firearms analysts responded with new social sciences studies. (Second Motion in Limine, p. 5). This leads to the Evaluation stage where the examiner applies his or her training and expertise to evaluate the comparison and draw conclusions. 10 National Research Council (U.S.) et al. Because the investigators only found the shoe box instead of the shoes, Joe Andrews and his laboratory could only compare the class characteristics but not the individual identifying characteristics of the shoeprint, which could only lead to a very broad conclusion. Activity. In order to do that, they dug two bullets from a wooden post on the property of Simpsons mother, which Doyle had used as a shooting range. In its case in chief, the Government intends to call Fort Wayne Police Forensic Examiner, Thomas Pitzen ("Pitzen"), to offer testimony regarding the comparison of a shoe print left inside the burglarized bank with the footwear recovered from the defendant at the time of his arrest. (Tr. Wiersema "always recommend[s that] you photograph a gelatin lift." Thus, the first prong of Rule 702 tests the reliability of the testimony; the second prong tests its relevance. Alternatively, collect three similar shoes and make prints with them using dilute paint and paper. p. 58). Mainly it indicates that the person sampled was in the vicinity of a gun when it was fired, handled a gun after it was fired, or touched something that was around the gun when it was fired. What this documentation does not tell the court, however, is Pitzen's proficiency in obtaining impression evidence, how frequently he utilizes his training in the area of impression evidence, how often he is proficiency tested, etc. The indictment alleges that on or about October 28, 2001, the defendant entered or attempted to enter the Standard Federal Bank located at 4036 Coldwater Road, Fort Wayne, Indiana, whose deposits were insured by the Federal Deposit Insurance Corporation, with intent to commit a felony therein, namely taking and carrying away with intent to steal property and money belonging to and in the care, custody and control of the bank. Very large text size A Supreme Court jury has today found a man guilty of murdering his brother-in-law in a case where the key piece of evidence was a pair of size 7 Prada men's shoes. As the Government points out, Rule 702 is not limited to merely scientific evidence but permits expert testimony if the testimony relates to "technical or other specialized knowledge" that would assist the trier of fact to understand the evidence or determine a fact in issue. Thus, in this case the use of expert testimony to explain the details and underpinnings of the expert's conclusions would be helpful to the jury's assessment of the facts of the case thereby making the footwear impression testimony relevant. Shoeprints are a type of two-dimensional impression evidence (a tire track in mud, for example, is a three-dimensional impression evidence). A 1995 study sending questionnaires to forensic laboratories across the world showed that shoeprint was the most common impression evidence examined by those laboratories.24, The goal of impression evidence analysis is to identify a specific source of the impression, and the analytical process that this follows generally is an accepted sequence: (i) identifying the class (or group) characteristics of the evidence, and (ii) followed by locating and comparing individual identifying (also termed accidental or random) characteristics.25, With respect to shoeprints, class characteristics are an intentional or unavoidable characteristic that repeats during the manufacturing process and is shared by one or more other shoes such as design, pattern, size, and shape; and, individual identifying characteristics are caused by wear and tear, such as cuts, scratches, gouges, holes, or random inclusions that result from manufacturing.26. By doing so, they reduce the risk that the marks on the bullet are due to the impact and not to the barrel’s “fingerprint.”8, The scientific community has simply not been able to prove that a gun will produce a unique mark, which is the fundamental assumption of ballistics evidence. He is a certified law enforcement instructor and has instructed numerous groups in latent fingerprint processing (a process similar to the science of footwear impressions) and in evidence collection and packaging. p. 30). An 1996 European survey using six identical mock cases showed that there were considerable differences in the conclusions reached by different laboratories.27, The Scientific Working Group for Shoeprint and Tire Tread Evidence (SWGTREAD) suggests the use of terminology such as identification, probably made, could have made, inconclusive, probably did not made, elimination, and unsuitable, instead of binary opposition terms such as match/no match, responsible for/not responsible for, and caused with/not caused with., Weakness of the Shoeprint Evidence in the Flowers Case. Next, Wiersema photographs the shoe submitted for comparison ("the Known Shoe") to record the condition in which she received the shoe. The investigators in the Curtis Flowers case never found the murder weapon that was used in 1996 to kill the four employees at Tardy Furniture. Consequently, “If investigators recover bullets or cartridge cases from a crime scene, forensic examiners can test-fire a suspect’s gun to see if it produces ballistic fingerprints that match the evidence”.5. Second, there might be possible damage to the bullets, as the investigators extracted the bullets from the wooden post using a knife and therefore possibly creating additional markings on the bullet. The authors built a mathematical algorithm that “compares three-dimensional surface scans of the breech face impressions on cartridge cases. Glass Evidence reference database Th s database conta ns more than 700 ... match the shoe print. Law Enforcement Records on Gunshot Residue Testing of Flowers, Smoke or fog: Curtis Flowers Trial, Day Eight, Strengthening Forensic Science in the United States: A Path Forward, Could they really match those bullets in the Tardy Furniture case?, How Good a Match is It? A Fila Grant Hill II Mid shoe box, size 10 ½, was found at the home of Flowerss girlfriend. Of shoe print and tire track evidence in particular, the report said, "The educational background of forensics scientists who examine shoeprints and tire track impressions runs the gamut from a high school diploma to scientists with Ph.D.s. [6] Wiersema offered a list of four books exclusively relating to footwear impression evidence, including: Footwear Evidence by John Abbott; Footwear Identification by Michael Cassidy; and the first and second editions of Footwear Impression Evidence by William Bodziak. Wiersema described two methods of comparisons typically used in the critical analysis process. 2000), and simply put, the court is without an adequate record to ultimately consider the question posed by the Defendants' Motion in Limine, that is, can Pitzen offer an expert opinion in this case that the shoe impression taken from inside the bank "could be" the defendant's shoe? He needs to compare the bullets and casings of a crime scene with samples from the weapon and “identify the individual characteristics of microscopic tool marks apart from the class and sub-class characteristics and then to assess the extent of agreement in individual characteristics in the two sets of toolmarks to permit the identification of an individual tool or firearm.”6 In other words, the examiner has to be able to tell apart the unique impressions caused by a gun, from those that the same model of gun cause (class characteristics) and even from those which not only the same model of gun but also were consequently manufactured (sub-class characteristics). This said, "[t]he admission of expert testimony from technical fields is governed by the same concerns and criteria as the admission of scientific expert testimony", but with respect to technical testimony, the "Supreme Court in Kumho Tire explained that the Daubert `gatekeeper' factors had to be adjusted to fit the facts of the particular case at issue, with the goal of testing the reliability of the expert opinion." Footwear impressions are created when footwear is pressed or stamped against a surface such as a oor or furniture, in which process, the characteristics of the shoe is transferred to the surface. "Federal district courts have the power to exclude evidence in limine pursuant to their authority to manage trials." Thus even a popular shoe outsole design represents only a small subset of all manufactured shoes. [9] The court uses the term "science" loosely as it has noted that this body of impression evidence is more properly classified as technical or specialized knowledge as opposed to scientific evidence. The Supreme Court in Daubert and more recently in Kumho Tire Co. Ltd., v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. instances, shoeprint evidence is also one of the most neglected and abused types of evidence. Next, the court must examine the reliability of the methodology the expert used in reaching his conclusions. p. 38). It is generally accepted that the specific number of characteristics needed to assign a definite positive identification depends on the quality and quantity of these accidental characteristics and the criteria established by individual laboratories. In his Motion in Limine, the Defendant asserts that the opinions of the proposed expert are not reliable in that the underlying methodology which forms the basis of the proposed expert's conclusions is not scientific in nature. The first witness, Sandra Wiersema ("Wiersema"),[1] is a forensic examiner with the Federal Bureau of Investigation Laboratory in Washington D.C. whose exclusive duties at the FBI laboratory relate to footwear and tire tread evidence. The number of shoe prints at a crime scene can be so large that the process of impression recovery becomes very time-consuming. Shoes come with thousands of different outsole designs and numerous sizes for each design. Shoe print evidence can appear in dust on a surface like the vehicle in the Plano case, in dirt, mud and even in snow. FED.R.EVID. Drug policy development and implementation as well. Sirchie is the world leader in criminal investigation and forensic supplies, including personal protection supplies and shoe covers. Rather, as noted above, the court must determine whether the proposed expert who will offer testimony at trial is qualified. Id. During the Comparison phase, the examiner engages in a critical comparison of the unknown image to the known image by one of several methods, either a side-by-side comparison or by the overlay method. [7]*867 Indeed, as one judge recently explained: Here, Wiersema testified that shoe print evidence is a subset of a body of evidence known generally as impression evidence. In the case of footwear evidence, if required, the footwear experts have a great number of will accepted enhancement techniques at their disposal to further develop the questioned print(s). As to this evidence, the Defendant's main challenge is that it is not "scientific evidence" as contemplated by Daubert. According to Wiersema, this process is typically used for dust impression or wet origin impressions. Those advances, however, also have revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. Here, whether the shoe impression taken from the bank is similar to the shoe the Defendant was wearing at the time of his arrest is certainly relevant to the jury's determination of the disputed issue of whether the Defendant was, in fact, in the bank as alleged by the Government. Here, contrary to the Defendant's representations, the Government witnesses established that examiners of footwear and other impression evidence are routinely tested to ensure proficiency in the field; that the techniques described have been generally accepted in the forensic community; and that the methodologies described are subject to peer review. To use the gelatin lift, the clear cover is removed, the lift is laid over the top of the unknown impression, the fabric backing is then rolled slightly to ensure that the gelatin lift comes in contact with the unknown *861 impression. 27 Majamaa, Heikki and Anja Ytti, Survey of the conclusions drawn of similar footwear cases in various crime laboratories (1996) 82.1 Forensic science international, 109-120. To the untrained eye, the shoes appeared very similar, if not identical. Even though the shoeprints may have been trampled upon, they In criminal prosecutions, forensic evidence is often offered to support conclusions about individualization (sometimes referred to as matching a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. The fundamental problem underlying firearms and shoeprints analysis is the lack of a consistent standard and inherent subjectivity. Wiersema testified that she has spoken to Bodziak and he "has no statement such as that in his book." [2] Vanderkolk authored the Indiana State Police training manual for latent fingerprints, footwear, and tire tracks examinations. The controversy now begins how many unique and characteristic particles are needed to opine that gunshot residue is identified? 34).[3]. ." Finally, as the Government points out, the use of expert testimony in this case also serves as a prophylactic measure for the defendant in that it prevents a jury comprised of untrained eyes from evaluating the forensic evidence in this case and reaching what is, perhaps, an erroneous conclusion clearly not supported by the forensic evidence. Thus, as the term "in limine" suggests, a court's decision on such evidence is preliminary in nature and subject to change. As indicated previously, both government witnesses testified that the science of shoe print comparisons require the training and expertise from professionals to ensure an accurate conclusion. Yeng Jun Wu, 45, was found guilty of murdering Berwick plasterer Shao Qing "Victor" Chen in what was described in court as a "frenzied killing". Id. However, they are optimist about the possible results of scaling up the study “with much larger and more diverse datasets”.23. STANSBURY v. CALIFORNIA(1994) No. Evidence provided by a positively identied shoe mark is as strong as the evidence from ngerprints, tool marks, and typewritten impressions. During cross-examination, defense counsel specifically questioned whether the technique used to obtain gelatin lift test impressions distorts the unknown impression, to which Wiersema responded as follows: Vanderkolk described a methodology similar to the one described by Wiersema for creating footwear impression evidence. 2d 238 (1999) provided further guidance on the court's task under Fed.R.Evid. Here, Andrews through his testimony set out three scenarios that could result in a person having gunshot residue on his hands: (i) the person had discharged a weapon; (ii) the person had been in close proximity to a discharged weapon; or (iii) the person had handled an object that has gunshot residue on it. Because the subset of shoes that has a particular set of class characteristics is small, class characteristics are very p… 15 Sufficient agreement exists when when it exceeds the best agreement demonstrated between tool marks known to have been produced by different tools and is consistent with the agreement demonstrated by tool marks known to have been produced by the same tool. Id. . To the extent, Defendant's Motion challenges the admissibility of this evidence on the basis that the general methodology and traditional methods of obtaining footwear impression evidence is never admissible as technical or specialized knowledge under Daubert and its progeny, the Motion in Limine is DENIED. They also stated that one shoe print of a woman's size 37 shoe was found on a pillow case. He uses the term `corresponds in size and design.' There is no defined threshold of matching characteristics that must be surpassed, nor are there any studies that associate the number of matching characteristics with the probability that the impressions were made by a common source. (Tr. United States v. Ross, 263 F.3d 844 (8th Cir.2001) (expert testimony from FBI forensic examiner linking footprints and tire imprints found in snow at scene of bank robbery to defendant's car tires and shoes met Daubert admissibility requirements). 2d 549 (E.D.Pa. More recently, a team of researchers at the National Institute of Standards and Technology (NIST) published study in Forensic Science International.21 This study is more promising not only because it continues to develop a statistical approach able to assess error rates, but also because it tries to address the problem of subjectivity by eliminating the human factor. Footwear evidence can provide investigators with certain information that can assist them in locating a suspect. 2d 794, 797 (N.D.Ill.2000). The same day of the murders, a man named Doyle Simpson, who was Curtis Flowers step-uncle, reported to the police that his .380 had been stolen from his unlocked car that morning. In many cases, footwear evidence can lead to positive identifications of which particular known shoe made the print. Proof of this danger is that in similar situations some experts like Kurt Moline, with nearly 30 years of experience, advised investigators to send whole sections of the tree containing the bullet rather than extracting it themselves.19. With this conclusion, however, the court's present inquiry must come to an end. TreadMark™ is a commercial product that uses four parameters—pattern, size, damage, and wear—to identify individual outsole impressions. A bloody shoeprint was found next to one of the victims body. Fed.R.Evid. In the last trial, Balash claimed absolute certainty regarding the match: It has to be 100 percent or I will not offer that opinion.1, When guns are shot, the softer metal of the bullets explodes forward impacting the stronger metal of the barrel’s ridges and groves, leaving striations. Kumho Tire, 526 U.S. at 153, 119 S. Ct. at 1176-1177. The Defendant claims, for instance, that there are no uniform standards for the industry and that the methodologies described by the experts differ but, in any event, the "science" consists of no more than looking at two objects with the naked eye and concluding whether they are similar or different. 702 and the principles announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-592, 113 S. Ct. 2786, 125 L. Ed. Because Sam Jones, the person who discovered the crime scene, stated that he did not remember seeing the shoeprint when he entered initially, police officers checked the footwear of all personnel at the scene and found that none was consistent with the shoeprint. In addition, the bibliography submitted lists six other books including: Handbook of Forensic Science and the Crime Scene Search and Physical Evidence Handbook published by the U.S. Government Printing Office; Crime Investigation, authored by Paul Kirk; Tire Imprint Evidence, by Peter McDonald; Forensic Science Handbook, by Richard Saferstein. Here, both Wiersema and Vanderkolk testified as to the specialized nature of obtaining footwear impression evidence. Indeed, Daubert instructs that "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence . Rather, the Supreme Court held that the decision to apply some or all of the Daubert factors in a particular case lies within the district court's discretion. He also teaches crime scene technicians on the documentation of crime scenes and was the primary instructor of proposed expert witness Pitzen in the areas of footwear, tire tracks and physical comparison of torn items. As long as this is the State of the science, experts in delivering their testimonies should refrain from making any claim of absolute certainty regarding their conclusions, in order to avoid objectively inducing errors to the fact finders. p. of%evidence%left%behinddepends%largelyon%the%type%of%surface%traveled.%For% example,%a%shoewill%leavean%impression%in%loosesand,%but%on%a%hard%surface The court also concludes that the proposed expert's testimony, assuming use of the standard methodology described, is relevant in this case. He described the Analysis as a three step process which involves the examiner looking at the detail in the unknown impression, studying and evaluating that detail, and then examining the known image. Because many people in this country shoot guns and the things in their lives are covered with gunshot residue, an individual will be covered with gunshot residue when he or she comes in contact with these people or anything they touched.28 On the other hand, it can be easily tampered with and altered.
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