Thursday, August 13, 2020

Canadian court rejects fingerprint evidence

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Michael Whyte
Crime Scene Officer and Fingerprint Expert with over 7 years experience in Crime Scene Investigation and Latent Print Analysis. The opinions or assertions contained on this site are the private views of the author and are not to be construed as those of any professional organisation or policing body.
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In 2013, R. vs Bornyk was heard in the Supreme Court of British Columbia before The Honourable Mr. Justice Funt. The case is centered on a single fingerprint that was recovered from a break and enter at a house in Surrey, British Columbia.

Background

The testimony of the two homeowners established that while they were away at their cottage in Washington State, their home was broken into and entered.  The subject home was for sale at the time of the crime.  There had been several “open houses” in the area but the responsible realtor testified that no one who attended when she showed the home was the accused and it would not have been possible for the accused to have been at an open house without the realtor seeing the accused.  One of the homeowners had a hobby/business of purchasing novelty items, displaying them in the home, and then reselling them at an opportune time.  The homeowner would order items which he searched for and found on the internet.  The latent fingerprint was found on the plastic wrapping of a box containing a carnival ghoulish doll, apart of the ‘Living Dead’ Dolls range.  It was the only fingerprint found in the home. A large portion of the fingerprint was distorted by ripples in the plastic wrap.

In this case, Corporal Wolbeck attended the crime scene the morning the break and enter had been discovered, saw the Living Dead Dolls box and identified its plastic wrap as a surface on which a fingerprint might be found.  He used magnetic black powder to locate the latent fingerprint.  Ms. E. McGreevy, who was employed by the RCMP as a forensic identification specialist, took a photograph of the latent fingerprint.  The fingerprint was scanned in and searched against AFIS where a negaive result was recorded and the latet print was subsequently stored on the unsolved latent database.

On May 11 2011, a tenprint-to-unsolved-latent (TPUL) match had been made against the single latent fingerprint to the accussed. The match had been made from a fingerprint record set from a charge back in 2006. For Corporal Wolbeck’s expert analysis, he used the set of fingerprints taken from the accused on July 21, 2010.  At trial, there was no clear explanation as to why neither the 2006 set of fingerprints nor the July 21, 2010 set of fingerprints (the “known fingerprints”) produced a possible match sooner than May 4, 2011.

The Trial

Corporal Wolbeck prepared a short report, “Friction Ridge Analysis”, with respect to the latent and known fingerprints and gave expert opinion evidence quoting ACE-V and explaining how he came to his conclusion.

He concluded that “Based on my training, knowledge and experience, I formed the opinion that the latent impression marked R1, located on the side of the “Living Dead Dolls” box, and the inked impression of the right ring finger, as recorded on the fingerprint form bearing the name of Timothy Dale BORNYK, were deposited by the same person.”

Now there were few issues that were brought up during the testimony of Corporal Wolbeck. These were on the grounds of institutional bias, using a photocopied tenprint form rather than the original, bench notes not disclosed to defence counsel, veryfying expert not called to give evidence, and unexplained “discrepancies” in the latent, amongsth a few other things.

Based on these issues, the Honourable Mr. Justice FUNT has concluded:

“While the usable portion of the latent fingerprint and the known fingerprint are quite similar, I have more than a reasonable doubt that there is a match of the latent fingerprint to the known fingerprint.  Accordingly, I acquit the accused”

To view the complete judgement and further breakdown of the issues mentioned above you can visit the Candian Legal Information Institute.

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