There are many elements that go into planning the “perfect crime” and numerous popular crime shows demonstrate the importance of physical evidence in the criminal investigation process. Today it seems that it would be nearly impossible for any individual to “get away with murder”, or in the case of Anthony Allen, burglary.

In October 2001, the alarm of the Standard Federal Bank in Fort Wayne, Indiana, was activated, and police were dispatched to the scene. Officer Shane Hopkins, a local law enforcement officer who occasionally aided in bank security, arrived first. Hopkins began a perimeter search during which he observed an open ATM machine, the absence of normal interior and security lighting, and then a masked individual exiting from a rear door of the bank. The same suspect quickly reversed his exit strategy, but was again stopped by the arrival of Officer Jeffrey McCann on the scene; the suspect again reentered the bank.

Sometime shortly after the suspect reentered, Hopkins noticed another masked individual hiding in shrubbery surrounding the bank lot. While observing the second suspect, the first individual ran from the bank; Hopkins pursued and notified dispatch of the suspect's direction after he was unable to apprehend the individual. An observant citizen driving in the nearby area reported seeing a suspicious person who matched the general description of the suspect reported by Hopkins.

The sighting was reported by dispatch, and Officer Kenneth Fries, estimating the general direction and distance the suspect would have been able to cover in the elapsed time, drove to the Coliseum Park Apartments where he located a man wearing clothing similar to that observed by Hopkins. The man was, however, not wearing a ski mask. After tracking the man for a short time, Fries lost sight and continued to search the area until he met up with two other officers canvassing the area. The three officers continued their search on foot, and shortly thereafter, they located the same man Fries had noticed before running north beside the creek. Despite verbal requests from the officers to stop, the man continued to run away until reaching an impassable area. It was at that time that Anthony Allen was apprehended by the officers.
The Evidence in question

Subsequently, Allan was charged and convicted of committing and aiding and abetting the burglary of the Standard Federal Bank. At his trial, expert testimony was presented

The evidence in question

Subsequently, Allan was charged and convicted of committing and aiding and abetting the burglary of the Standard Federal Bank. During his trial, expert testimony was presented which stated that tennis shoe prints taken from the scene could have been made by Allen's shoes. While the opinion of the expert was not stated as “conclusive” evidence, it was one of the issues raised by Allen on appeal. He argued that the shoe print evidence was admissible under the guidelines established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

Expert testimony and shoe print identification

The admissibility of expert testimony is governed by the Federal Rules of Evidence, specifically Federal Rule 702, and the standards applicable in the present case were clarified in Daubert. Specifically, the “prongs” that must be satisfied at the district court level in order for expert testimony to be admissible are: (1) “whether the expert would testify to valid scientific knowledge,” thereby satisfying the reliability/validity requirement; and (2) whether the testimony would help the jurors answer a question at issue in the case. The latter prong is simply referred to as “relevance.”

One aspect of the expert testimony challenged by Allen was that the shoe print evidence was not relevant, since the expert could not give a conclusive opinion on whether Allen's shoes were the only ones that could have matched the prints found at the scene of the crime. However, the court decided that neither Federal Rule 702 nor Daubert require that an expert witness be able to offer a determinative or positive conclusion about the evidence that is presented. Many other cases agree that “relevance” does not require that an expert “have an opinion on the ultimate question to be resolved to satisfy the relevance requirement. For that proposition, the court relied also on Smith v. Ford Motor Co., 215 F.3d 715 (7th Cir., 2000).

Allen also challenged the admissibility of the expert's evidence on two other points:: (1) any untrained individual could conduct the same visual comparison of the prints, and therefore expert opinion testimony was not required; and (2) shoe print identification is an unreliable technique, because no outside review is available. However, additional expert testimony by John Vanderkolk, then the Indiana State Police crime laboratory manager in Fort Wayne, and Sandra Wiersema, FBI forensic examiner, dismissed both arguments, stating that not only is shoe print identification a widely accepted practice in the forensic community, but it is also a technique that requires specialized training and has been the subject of peer reviewed articles in the forensic literature.

Conclusion

Allen failed in all of his arguments on appeal, and the United States Court of Appeals for the Seventh Circuit upheld his conviction on November 29, 2004. While shoe print identification evidence is not as widely used as fingerprint and other more traditional forensic science disciplines, it has traditionally been mentioned in criminal investigation texts over many years. Furthermore, there appears to be a growing literature studying and defining shoe print comparison techniques. In light of the close scrutiny of expert opinion testimony that the courts have been given to forensic sciences in the aftermath of Daubert, perhaps one of the facets of this evidence that made it more palatable, acceptable, and reasonable to the court was the fact that the expert did not profess to be able to make an identification that was 100% positive and with a zero error rate - a conclusion that causes courts and other scientists to doubt the scientific nature of the opinion evidence.

Posted April 5, 2006

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