Should every latent print identification report include a disclaimer that the age of the latent print cannot be determined? Or that the latent print cannot be linked directly to the crime?
An earlier blog post told the story of a defense attorney pleading his client guilty without challenging the latent print evidence. It was a fingerprint on a torn piece of a two liter soda bottle. The print could have been left long before the offence, at the time of the offense, or long after the offense was committed. It could have been left by an innocent person unrelated to the offense. Some who commented when I posted the story on LinkedIn left sharp comments to the effect that by not including that information in my written report, I was committing a Brady violation (withholding evidence).
The initial latent print examination request was only to process an item of evidence and compare any latents to a suspect. Should I have gone a step further and commented on the age of the print when I didn’t know anything about the offence at the time of the examination?
It was at pretrial conference with the prosecutor that I learned more about the offense. At that point, I verbally advised him that the print could have been left innocently prior to the commission of the offense, although that was not in the written report. Did the prosecutor have a duty under Brady to advise the defense attorney of that?
If a defense attorney has an ethical obligation to mount a reasonable defense, but he fails to ask about the possibility of legitimate access or the age of the latent in relation to the time of the offense, does the latent print examiner have an ethical duty to introduce that into the record even though he is not asked?
Should I have advised the defense attorney of the possibility of legitimate handling of the evidence even after he had accepted the plea deal offered by the prosecutor?
If you are unsure, please go back and read the blog post titled “Dry Ice Bomb and Class 2 Misdemeanor Guilty Plea.” Then form your own opinion and be ready to defend it if you ever find yourself in that position.