Fingerprint Evidence Questioned in Utah Appeals Case

Fingerprint Evidence in Utah Appeals Case

Photo: Alan Levine

A 2009 case involving Eric D. Woodard recently found its way to the Second District Court of Appeals. The case originally dealt with a search of Woodard’s residence that turned up various drugs and resulted in the conviction of Woodard for possession of a controlled substance with intent to distribute, a second degree felony, and possession of marijuana and drug paraphernalia, class B misdemeanors. In July of this year, Woodard appealed the conviction, questioning how the fingerprint evidence was admitted as well as the State’s expert witness.

The Original Case Against Woodard

In 2009, North Ogden police responded to a noise complaint at Woodard’s residence. Having already obtained a warrant to search his home, the officers detained Woodard outside while they attempted to search the residence. They ran into difficulties with house guests who “weren’t cooperating with the efforts to search the home.” Finally, police forcibly entered and began to search the house.

During the search, officers found a small bag of marijuana, a digital scale and cigarette rolling papers which Woodard admitted belonged to him. Officers also found a bag of 478 pills referred to as “Obama ecstasy” [an ecstasy mimic containing benzylpiperazine, a Schedule I controlled substance, shaped and stamped with the head of President Barack Obama]. Woodard denied knowing about the pills. However, fingerprint evidence on the bag of pills resulted in his conviction of possession of a controlled substance with intent to distribute. It is this charge that Woodard was appealing.

Utah Rules of Evidence Used to Question Fingerprint Evidence in Appeal

Utah criminal proceedings are governed by Rules of Evidence which “should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” When it came to Woodard’s appeal, he based his case on two of these Utah Rules of Evidence.

The first claim made by Woodard was that the fingerprint evidence admitted in his case lacked foundation, addressing Rule 901 which requires that the proponent of an item of evidence authenticates or identifies it with “evidence sufficient to support a finding that the item is what the proponent claims it is.” The rule includes a list of means by which authentication can be achieved.

In Woodard’s original case, the State provided a comparison of a photo of a fingerprint taken from the bag of “Obama ecstasy” with Woodard’s ten-print card [a fingerprint card taken when one is booked into jail]. When the defendant’s counsel asked the crime scene investigator, Paul Rimmasch, which photo was used as a basis for comparison with the ten-print card, Rimmasch was unable to say at that time exactly which one he had retrieved from a database known as the Digital Image Management System (DIMS).

However, given the fact that the State had the crime scene investigator, Sandra Grogan, testify to her part in taking the photos and uploading them to DIMS, as well as Woodard’s identifying information on the ten-print card–including the name of the jail, date and time of collection, and personal identifying information of Woodard such as social security number and date of birth–the Court of Appeals found that the fingerprint evidence was properly authenticated under rule 901.

The next Utah Rule of Evidence that Woodard attempted to use to his advantage was rule 702, which “assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony” further stating that “the principles of methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to fact.”

For Woodard’s appeal, he stated the procedure discussed by Rimmasch for fingerprint evidence verification, a four-step procedure known as ACE-V, was not sufficiently reliable. He brought up the fact that the National Academy of Sciences and its operational arm, the National Research Council, have “noted a lack of empirical validation of fingerprint evidence and specifically questioned the efficacy of the ACE-V methodology.”

Rule 702 states that “judges should approach expert testimony with ‘rational skepticism.’” However, the Court of Appeals cited another part of rule 702 which states that the degree of scrutiny “is not so rigorous as to be satisfied only by scientific or other specialized principles of methods that are free of controversy” and that it “requires only a basic foundational showing of indicia [signs or indications] of reliability for the testimony to be admissible, not that the opinion is indisputably correct.”

Woodard also addressed the final step of ACE-V, which is “verification,” during which, according to Rimmasch’s testimony, “another examiner goes through the same process [as the original examiner] and looks at the print again.” Woodard stated that the State should have been required to produce this second examiner to verify the fingerprint evidence. However, the Court of Appeals rejected this argument as well based on the idea that the lack of the second verifier wouldn’t affect the reliability of Rimmasch as an expert.

The Importance of a Good Defense

The Court of Appeals went on to point out how Woodard was somewhat defeated by his own defense counsel. According to court documents, “Defendant’s trial counsel had full opportunity to challenge the ACE-V methodology and Rimmasch’s credibility on cross-examination.” This could have included questioning Rimmasch on who performed the fingerprint evidence verification and when it was done, calling that person as a witness, or calling their own expert witness to testify about the process in this particular case or problems with ACE-V in general. Rule 702 does allow for “contrary and inconsistent opinions” which leave it up to the jury to decide. However, Woodard’s counsel did none of this in an attempt to give Rimmasch’s testimony less weight. Ultimately Woodard lost the case.

This final point goes to show the importance of an experienced criminal defense attorney who understands the Utah Rules of Evidence and how they might apply to fingerprint evidence. If you or someone you know is being charged with a crime and fingerprint evidence is being used as part of the prosecution’s case, make sure you contact a criminal defense attorney who will professionally handle your case.

Attorneys May Check Jurors Facebook, Twitter and Social Media Accounts. However, Attorneys May Not Facebook Friend Request a Juror During Trial

Social Media and Jury Selection

Photo: Birger King

Most average citizens are aware of the fact that when putting together a jury, lawyers will ask questions that gauge the opinions and beliefs of potential jurors. However, something that may come as a surprise is that the American Bar Association (ABA) recently announced that researching a potential juror’s social media activity is an ethical practice in jury selection.

Standard Operating Procedure for Jury Selection

When it comes to jury selection, practices vary from state to state and the numbers will depend on the type of crime. A civil case may have as few as six jurors, while more serious criminal cases generally require twelve jurors. Alternate jurors are sometimes selected just in case a juror becomes ill during the trial. They hear the same evidence and arguments as the other jurors but won’t participate in deliberations unless they are needed as a replacement.

Before being officially selected, the judge will give potential jurors an idea of the type of case to be tried and ask if there is any reason they cannot serve. The judge or lawyers will then ask questions to determine if the potential jurors might be biased in regards to the case, such as being related to one of the parties involved in the case, having preconceived opinions in regards to the basis of the lawsuit, or having already cast judgment based on news items relating to the case.

Social Media Searches: Not Just for Potential Employers Anymore

The rapidly growing world of social media is having widespread impact on how the rest of society functions. In the past few years, several studies have been released stating that more and more employers are performing Google and social media searches of potential applicants before deciding whether to hire (or in some cases, continue to employ) certain people. Now those same searches are being used for jury selection.

Previous to April of this year, the issue of whether or not this practice was ethical was undecided. Some judges have permitted lawyers to perform these types of searches while others have refused to allow it. Technology has already found its way into the field of jury selection, with multiple apps designed specifically to help lawyers organize and filter potential juror information. However, some companies have started offering software that searches social media to create juror profiles.

At least two states have already addressed the issue of online searches. Missouri has a website tracking lawsuits in the state, and the Missouri Supreme Court requires attorneys to use that website to search the litigation history of potential jurors. In 2013, the Oregon State Bar published an opinion stating that lawyers could use publicly available social media information for jury selection so long as they didn’t actively “friend” or “follow” the potential juror.

With all the varying opinions, the ABA’s Standing Committee on Ethics and Professional Responsibility took on the issue approximately two years ago, and on April 24, they released Formal Opinion 466 stating that information gathered passively through social media and other searches was considered ethical research.

What Exactly is Formal Opinion 466?

To understand Formal Opinion 466 and how it relates to jury selection, it is important to first understand that the ABA has a group of Model Rules of Professional Conduct. These binding rules form the basis for governing conduct among lawyers in every state (excepting California which follows a different format in their rules) and the District of Columbia. Formal opinions are interpretations based on those model rules.

Formal Opinion 466 is based on Model Rule 3.5 and states that a lawyer may review a potential (or current) juror’s postings and comments on websites or social media sites in regards to jury selection providing it doesn’t violate Model Rule 3.5 subsection (b) prohibiting ex parte communication with jurors. Formal Opinion 466 addresses such conduct on three levels:

  • The practice is ethical if the research is “passive” (i.e.- the information is available without an access request such as a Facebook “friend request”) and is done without the juror’s knowledge. If done in this manner, it is considered a “mere act of observing.”
  • Requesting access to a potential juror’s social media account is considered an “active” review and a violation of ex parte communication.
  • If a potential juror is notified via the social media site or website that a passive search has been performed, it is not a violation of Model Rule 3.5(b) because it constitutes communication from the electronic entity and not the lawyer.

The Song Remains the Same

While technology and social media is changing how the world operates, the same basic rules of humanity apply. People are judged by their words and actions. In this modern world, those words and actions are much more public.

A harsh criticism of an employer that used to be exchanged over drinks with a colleague is now potentially dangerous Facebook fodder (if your boss sees it), and many choose to ignore the old adage about not discussing politics or religion in polite company, especially when there’s no one else actually in the room but you and your computer.

Unfortunately, whether it’s completely accurate or not, you are who the internet says you are, and you will be judged by the online comments you make and the pictures you post. If that’s a problem for you, perhaps it’s better to just turn off the computer and carry on the conversations over the fence like they used to be.

eWarrant System Challenged in Utah Supreme Court

eWarrant System Challenged

Photo: Patrick Fitzgerald

In April 2014, the Utah eWarrant system was challenged in an appeal to a 2012 district court decision. After pleading guilty to negligent automobile homicide and driving under the influence of alcohol, Gabriel Gutierrez-Perez was sentenced to up to 16 years in prison, but in April, he appealed the district court’s denial of his motion to suppress evidence.

A Night of Drinking Leads to the Death of a Paramedic

On May 21, 2011, Gabriel Gutierrez-Perez spent the evening drinking with friends, both at home and then later at a downtown night club. After attempting to sleep it off on a friend’s couch, he got behind the wheel at 6 a.m. on May 22, a decision that he is most certainly regretting.

After failing to stop at a red light, Gutierrez-Perez caused a multi-vehicle accident that left several people injured and resulted in the death of Utah paramedic, Jonathan Bowers. He fled the scene but was quickly apprehended. Both on the scene and while being transported to the hospital, he admitted that he had been drinking throughout the night prior.

The eWarrant System in Question

The eWarrant system allows officers to electronically apply for a search warrant from a remote location. A judge reviews the information, approves or denies the warrant and then can electronically send it back to the officer to be served.

In the incident in question, the investigating officer applied for an eWarrant to draw Gutierrez-Perez’s blood and obtain the results. In his appeal to the Utah Supreme Court, Gutierrez-Perez maintained that the affidavit portion of the application was not supported by an “oath or affirmation,” thereby making in unconstitutional both by the United States and Utah constitutions.

Gutierrez-Perez moved to suppress the evidence obtained by these warrants based on three arguments. First, he stated that the precedence for a valid oath or affirmation had been established in an earlier court case (Mickelsen vs. Craigco, Inc.) and the affirmation in this case does not comply. Second, because the eWarrant application uses language from Utah Code section 78B-5-705, entitled “Unsworn declaration in lieu of affidavit,” the officer’s statement must be considered as an “unsworn declaration” and not an affirmation. Finally, Gutierrez-Perez argued that it doesn’t count as an affirmation because the application doesn’t explicitly state that the affiant [person who swears to an affidavit] may be subject to prosecution for perjury for making a false statement.

A Lesson in History

The Utah Supreme Court reviewed these arguments and was not persuaded. Ultimately they held up the district court’s denial of Gutierrez-Perez’s motion to suppress the evidence. To support this decision, they looked to history in regards to Gutierrez-Perez’s three arguments.

In his first argument, Gutierrez-Perez stated Mickelsen vs. Craigco, Inc. set the standard that an oath or affirmation “must be signed by affiant in the presence of a notary or other person authorized to take oaths” and “the latter must affix a proper jurat [certificate on an affidavit].”  The State did not dispute these two points. However, they rejected the argument on the grounds that the cited case dealt with setting requirements for a valid verification and thus didn’t extend to Gutierrez-Perez’s case.

For the second argument, the State delved into the history of the Fourth Amendment, going back all the way to British common law to decide whether or not the officer’s statement in question was an “unsworn declaration” or “affirmation” simply based on similar wording. When it came to the Framers of the Constitution of the United States, the State claims they didn’t recognize an affirmation as requiring a particular wording.

Since the officer was required to declare as part of the eWarrant application that his statement was “true and correct” and acknowledge that he was subject to “criminal penalty of the State of Utah,” the State found this compliant with the original understanding of an “affirmation,” thereby passing constitutional muster.

Finally, in regards to Gutierrez-Perez’s argument that the criminal penalty for making a false statement on the eWarrant was insufficient to impress the solemnity of the occasion on the affiant, the State again referred to history. While it is true that those testifying under affirmation historically were subject to prosecution for perjury for making false statements, it wasn’t until the 1800s that the crime was considered a felony in most states.

In the eWarrant system application, the penalties for making a false statement are found in either the Unsworn Declaration statute (a class B misdemeanor punishable by up to six months’ imprisonment) or the “false statement” statute (Utah’s version of perjury, a second degree felony punishable by one to fifteen years’ imprisonment). The State believed the misdemeanor threat of “up to six months,” with potential for felony punishment, was sufficient to impress the solemnity of the occasion upon the affiant. In addition, since the legislature could possibly change the penalty associated with the false statement statute to something less than a felony, Gutierrez-Perez’s argument that false statements should be punishable as felonies would render the warrant system impracticable.

While Gabriel Gutierrez-Perez didn’t win his fight against the Utah eWarrant system, it doesn’t make the system infallible. If you believe that you have a case involving how evidence was obtained via the eWarrant or standard warrant system, contact a trusted and experienced criminal defense attorney and make sure you know your rights.