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It is unfortunate that many fingerprint experts do not expend near the effort needed to present credible testimony at the deposition. Some tend to treat it as an inconvenience that must be suffered prior to presenting the more important testimony at the trial itself. I believe this to be a major mistake.
Testimony at a deposition is given under oath. That alone is sufficient for the witness to treat it with the utmost respect. Additionally, it is transcribed for subsequent study and review by any number of individuals, such as prosecutors, defense attorneys, and other experts. Testimony given at a deposition is very often the basis for not only the cross-examination questions at the trial, but the very manner in which the expert and the case in general is approached by the attorney.
In many instances, cases can, in my judgment, be won or lost at the deposition. I was involved as the defense fingerprint expert in a criminal case and accompanied the defense attorney to a deposition that involved crucial fingerprint evidence. It is my firm belief that the unprofessional behavior and lack of fundamental fingerprint knowledge by a prosecution witness was the foundation for a not guilty verdict at the subsequent trial. This case will be the basis for a later in-depth article and lecture material; therefore I will not address all the particulars now. Suffice it to say that this case was an illustration of everything not to do at a deposition.
During the deposition, the opposing attorney begins to get a sense of the fingerprint expert’s training, knowledge, skill, demeanor and experience. The expert or anyone presenting forensic-related testimony should be knowledgeable, respectful and prepared to answer the attorney’s questions to the best of their ability.
The days are over in which the average defense attorney will roll-over and blindly accept the credentials, conclusions and opinions of whomever the prosecution places on the witness stand as a fingerprint expert.
A few suggestions for the witness when appearing at a deposition:
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Dress appropriately
In the instance I referred to earlier, one law enforcement officer who was involved in numerous forensic aspects of the case, showed up wearing shorts, a pullover shirt, sneakers (no socks) and a baseball-type hat which he wore throughout the deposition. He didn’t even remove the hat when taking the oath! As I observed him entering the room and before he answered the first question, I immediately began to question this man’s professional judgment based upon his demeanor and personal appearance.
Behave in a professional manner
There is an old saying: No one is useless – you can always be a bad example. After taking the oath, the aforementioned witness slumped down in the chair and began giving short, abrasive answers to almost every question asked by the attorney. I later learned that he was upset because he had to come to the deposition on his day off and then had to wait past his scheduled time to testify. If a person is involved in forensics, waiting to testify, even on days when it is personally inconvenient, is all part of the job and is no reason to become upset. Becoming upset and displaying frustration to the opposing attorney only serves to make the expert look foolish. Attorneys on both sides of the aisle dearly love cross-examining a witness with a short fuse. Displaying this lack of temperament at the deposition causes the attorney to practically salivate in anticipation of crossing the witness at the trial.
Be prepared
This is an admonition always given in relation to appearing at a trial, but it also applies to the deposition. Copies of all notes and reports relating to the expert’s participation in the case should be brought. Answering, “I don’t know,” to questions involving dates, times, procedures and results that were readily available to the witness prior to the appearance at the deposition is not only unprofessional, but just plain stupid. The witness wants to be as accurate as possible here because many of these same questions will be posed at the trial. If a different answer is then given, all sorts of problems can ensue.
Know your subject
I certainly make no pretense to knowing it all, but there are those fingerprint examiners whose scientific knowledge of fingerprints is a mile wide and an inch deep. Just a little probing by the opposing attorney will reveal that they are merely parroting what they have been told by other examiners who in turn heard it from other examiners and so forth. Although it is getting less frequent, I have lost count of the number of times I have heard a fingerprint “expert” say that one of the reasons that a latent fingerprint is not always left is because some people are non-secretors. Why do they say that? Because they heard someone else say it and never bothered to take two minutes with a medical dictionary to check it out.
The following is taken directly from the deposition of an experienced crime scene investigator:
| Attorney: |
Was the tape processed for bloodyfingerprints? |
| Investigator: |
No.
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| Attorney: |
Why not? |
| Prosecutor: |
Processed for what? |
| Attorney: |
Bloody fingerprints. |
| Investigator: |
I don’t know. What’s the difference between bloody and regular? |
| Attorney: |
I don’t know. I’m asking you. |
| Investigator: |
I don’t know. |
I won’t elaborate at this time, except to say that it only went downhill from there.
Why did this individual exhibit such as cavalier attitude at the deposition. I believe it was because he did not take it seriously.
I encourage all fingerprint examiners to do their best to not only keep abreast of the current developments, but also be aware of the fundamentals of the fingerprint science. Of course, no fingerprint examiner knows everything about the science, but that is not expected or even possible. However, the fingerprint examiner should be able to give credible and understandable explanations of how latent prints are developed, compared and identified. Being able to define fingerprint terms is also a must. Whenever I conduct a mock trial, one of my favorite cross-examination questions for the fingerprint expert is, “Is the study of fingerprints a science?” The answer, of course, is “Yes.” I then follow with, “Please define science.” It is surprising how many are stumped by this simple question.
The fingerprint expert must approach the deposition as he or she would a trial. This includes studying the previous reports, worksheets, lifts, photographs, latent prints, etc. Anticipate questions, prepare answers and most important, as my grandmother used to tell me, “Act like you got some sense.”
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