"THE FACT, HOW-EVER, THAT AN ACCUSED PERSON'S FOOTPRINT IS "SIMILAR TO" THE BAREFOOT IMPRESSION IN A BOOT OR SHOE OUGHT NOT TO BE ADMISSIBLE AS POSITIVE IDENTIFICATION. AS SERGEANT KENNEDY HIMSELF ACKNOWLEDGES, HIS RESEARCH HAS NOT REACHED THE STAGE WHERE HE CAN MAKE A CATEGORICAL IDENTIFICATION FROM BAREFOOT IMPRESSIONS. THE FACT, HOW-EVER, THAT AN ACCUSED PERSON'S FOOTPRINT IS "SIMILAR TO" THE BAREFOOT IMPRESSION IN A BOOT OR SHOE OUGHT NOT TO BE ADMISSIBLE AS POSITIVE IDENTIFICATION."
ONTARIO COURT OF APPEAL":
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An expert's purported ability to identify who wore boots based on the wear pattern or footprint impression in the boots was successfully attacked in the Ontario Court of Appeal in the landmark Dimitrov case which came out of Ottawa;
Although the jury used this "expert"evidence to convict Mr. Dimitrov, the Ontario Court of Appeal overturned the conviction on December 24, 2003, and he was acquitted on the retrial;(Mr. Dimitrov was represented in the Ontario Court of Appeal by Toronto lawyer Frank Addario who I regard as a good friend and mentor;)
The headnote to the Court of Appeal Decision explains that in this appeal by Dimitrov from his conviction for second degree murder:
"The victim was Dimitrov's land-lord. The home was occupied by the landlord, his wife, Dimitrov, and another tenant named Tzenev. The issue was identification. The Crown relied upon certain evidence to show that the mur-derer was a person who lived in the house and that Dimitrov was the killer. Evidence was provided that neither the wife nor Tzenev had the opportunity to commit the offence and clean up immedi-ately afterward. Part of the evidence against Dimitrov was a pair of winter boots found inside the front hall closet of the house. They were spattered with the victim's blood. There was no blood on the sole of the shoes. The Crown relied on expert evidence to show that Dimitrov likely wore the boots. The evidence was from a police officer who was an expert in footwear and barefoot impres-sions in shoes. The officer admitted that his research did not reach the stage where he could make a categorical identification from barefoot impressions. Other witnesses testified that they never saw Dimitrov wear the boots. All the residents of the home used the closet. The boots fit Tzenev. The judge admitted the expert evidence. Dimitrov argued that its admission was a mistake because this area of identification was not a science. He argued that the judge gave insufficient weight to its ca-pacity to mislead the jury. Dimitrov also argued that there was opportunity and motive by the wife and Tzenev to commit the murder.
HELD: Appeal allowed. The conviction was set aside. A new trial was ordered. Apart from the offi-cer's testimony, there was no evidence that Dimitrov owned the boots. There was no evidence that the assailant wore the boots during the attack or that they were worn during the attack. The expert evidence did not exclude Tzenev as a wearer of the boots. If the killer borrowed the boots, their pat-tern would only reveal the foot impressions of the owner. The expert evidence did little to advance the case against Dimitrov. The slight probative value of the evidence was outweighed by its preju-dicial effect. There was a real risk that the jury was overawed by this testimony. The judge erred in admitting the expert evidence. However, based on the other evidence the verdict was not unreason-able, and an acquittal could not be granted."
Forthose readers who want the nitty-gritty, the portion of the appeal court decision relating to the question as to "Did the trial judge err in admitting expert evidence of the barefoot impression in the Eagle Rock boots," read as follows:
20 At trial, the Crown sought to introduce the evidence of Sergeant Robert Kennedy as an expert in footwear and barefoot impressions in shoes. Sergeant Kennedy testified that the areas of footprint and barefoot impression analysis are interconnected. Barefoot impression analysis is an extension of footprint impressions analysis; both rely on an analysis of the weight-bearing areas of a foot.
21 Sergeant Kennedy compares the weight-bearing areas in barefoot impressions to determine whether the foot impressions were made by the same person. In the case of barefoot impressions in shoes, Sergeant Kennedy compares the wear areas in shoes, as well as the outsoles and insoles of the shoes. Sergeant Kennedy achieves these comparisons though visual inspection, both with and without the use of a Luma light, UV light, or laser light. Sergeant Kennedy also photographs the shoes and uses enhanced photographs for comparison purposes; he also completes overlay drawings of the barefoot impressions he is comparing. Sometimes Sergeant Kennedy will compare an inked impression of a foot to a worn shoe; however, an inked impression is more helpful for comparison to a footprint in mud, blood or another substance. Sergeant Kennedy does not take or record meas-urements as he conducts these comparisons. However, he uses callipers in checking to see if a measurement from one footprint matches another.
22 Defence counsel acknowledged Sergeant Kennedy's expertise in the area of footwear impres-sions but opposed the admission of his testimony relating to barefoot impressions. The defence did not call any evidence to dispute footprint or barefoot impression analysis as an area of expertise nor was any evidence called to refute Sergeant Kennedy's qualifications.
23 After conducting a voir dire, the trial judge held that the evidence met the test established by the Supreme Court of Canada for the admission of expert evidence in R. v. Mohan (1994), 89 C.C.C. (3d) 402. He then exercised his discretion and admitted Sergeant Kennedy's evidence.
24 The appellant argues that the trial judge erred in admitting Sergeant Kennedy's evidence in relation to barefoot impressions because (i) it is not science; and/or (ii) the trial judge gave insuffi-cient weight to its capacity to mislead the jury.
25 After setting out a summary of Sergeant Kennedy's qualifications and testimony, we will con-sider the admissibility of his evidence.
Sergeant Kennedy's Qualifications
26 Sergeant Kennedy's experience and qualifications on the topics of footprint analysis and bare-foot impression analysis include extensive research, international lecturing and international board certification. Since 1994, he has worked full time for the R.C.M.P. Forensic Research Services de-partment in the area of barefoot impressions found at crime scenes.
27 Sergeant Kennedy is the past president of the Canadian Identification Society and is the chair of both the Footwear Certification Board and the International Association of Identifications, the latter being the body responsible for the international certification of forensic footwear examiners. He has given expert testimony on both footwear and barefoot impressions in various courts around the world. His expertise in barefoot impressions forms the basis for his certification as a footwear examiner.
28 In the area of barefoot impressions alone, Sergeant Kennedy has been qualified to testify in twenty-five to thirty cases around the world, including approximately five in Ontario. Most of the cases have involved barefoot impressions in shoes, such as the present case.
Sergeant Kennedy's Testimony
29 A pair of blood-spattered Eagle Rock boots was discovered inside the front hallway closet of the victim's house. Based on the size and nature of the stains, the bloodstain expert testified that the boots were close to the blood source at the time of the attack. DNA evidence established that the victim's blood was on the boots. There was also DNA on the boots from a second, unidentified per-son. The appellant's DNA was not found on the boots.
30 Sergeant Kennedy's role in the investigation was to compare the barefoot impressions from various shoes known to belong to the victim, Dimitre Tzenev, Faith Veltchev and the appellant, to the barefoot impressions in the Eagle Rock boots.
31 Sergeant Kennedy testified that:
* the victim did not make the impressions in the Eagle Rock boots
* Faith Veltchev did not make the impressions in the Eagle Rock boots
* Dimitre Tzenev did not make the impressions in the Eagle Rock boots
* the appellant likely made the impressions in the Eagle Rock boots.
32 Sergeant Kennedy testified that it was "likely" that the person who regularly wore the Eagle Rock boots was the same person who regularly wore the green leather shoes seized from the appel-lant at the time of his arrest. He qualified this conclusion, however, by noting that the impression was "not clear enough to do a high probability or high likelihood". Although he testified that he could exclude both Dimitre Tzenev and Faith Veltchev as likely wearers of the boots, he agreed that the boots would have fit Tzenev.
33 Sergeant Kennedy also testified that "somebody else could have worn this shoe, but it is not likely somebody else did". He stated that there was no indication in the impression in the boots that anyone other than the usual wearer of the boots had in fact worn the boots, but admitted that he could not eliminate the possibility that the boots had been worn by someone else for a period of "five or ten minutes to an hour". Sergeant Kennedy expected to be able to detect that a person other than the usual wearer of the boots had worn the boots after about one hour of wear.
34 Sergeant Kennedy testified that his research suggests that feet leave distinctive impressions inside shoes and boots. His opinions in the instant case were based upon a comparison of the weight-bearing areas from shoes known to belong to each of the victim, Faith Veltchev, Dimitre Tzenev and the appellant to the foot impression in the boots. He compared the shape and placement of each toe, the separation between the large toe and the other toes, the slope and angle of the meta-tarsal ridge between the toe ball and the ball of the foot, the ball of the foot and its weight-bearing arch, the arch length, and the width of the heel. He testified that the sureness of his opinion varies with the clarity of the foot impression. In this case, the impressions were relatively clean and clear, although not clear enough for a "high likelihood" opinion.
35 Sergeant Kennedy testified that until research is complete, barefoot impression analysis in shoes is not a positive means of identification but it is a valuable tool to establish the likelihood of someone wearing shoes and to eliminate particular individuals as wearers of shoes.
Analysis
36 As noted above, the appellant challenges the admissibility of Sergeant Kennedy's evidence on two grounds. The first relates to the general field of barefoot impression analysis and requires the determination of a threshold question, namely, whether such evidence is capable of forming the subject matter of expert testimony. The second involves the application of the Mohan criteria to de-termine whether, in the circumstances of this case, the trial judge properly exercised his discretion in admitting the evidence.
(i) Reliability
37 Novel scientific theories or techniques are subject to "special scrutiny"; so, too, is the novel application of established or recognized scientific techniques. The threshold question that arises in relation to the admissibility of either is well established: the court must be satisfied that the evi-dence proffered is capable of being the subject of expert evidence. That is, the court must be satis-fied, as a threshold matter, that the proposed evidence is, indeed, "science". The burden is on the party putting forth the expert, in this case the Crown, to establish its reliability on a balance of prob-abilities. See R. v. Terceira (1998), 123 C.C.C. (3d) 1 at 21 (Ont. C.A.); aff'd (1999), 142 C.C.C. (3d) 95 (S.C.C.).
38 In R. v. J-L.J. (2000), 148 C.C.C. (3d) 487 (S.C.C.) at paras. 34 and 28, respectively, the Su-preme Court of Canada noted that the admissibility of expert evidence is highly case specific and that the trial judge is to take seriously the role of "gatekeeper". The court set out the following fac-tors that should be considered in determining threshold reliability: (1) whether the theory or tech-nique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error or the existence of standards; and (4) whether the theory or technique used has been generally accepted within the scientific community.
39 In Terceira, supra, this court also held that threshold reliability must be determined in each case and noted that whether the results presented and the methods used are reasonably reliable are factors that may be considered in determining reliability.
40 Although footprint impression evidence is routinely accepted by courts3, the same cannot be said of evidence of barefoot impressions in shoes. Barefoot impression evidence was admitted in Regina v. Légère (1994), 95 C.C.C. (3d) 139 (N.B. C.A.)4. In Légère, the appellant appealed from convictions on four counts of first-degree murder. While there was other evidence connecting the appellant to the first three murders, the only evidence connecting the appellant to the fourth murder was barefoot impression evidence. In this case, a bloody footprint was found at the crime scene and a pair of boots that had been thoroughly washed was found at the same motel where the victim's car was found. The Crown sought to introduce evidence to show that the boots belonged to the accused and thus to connect the accused to the crime scene. One of the grounds of appeal was that the trial judge erred in allowing into evidence expert opinions as to the probability that the appellant's feet impressions were in the pair of boots because the expert witnesses could not offer any scientific or mathematical calculation as to the chance the impressions in the boots could have been made by someone other than the appellant. The appellants also argued that the facts upon which the experts based their opinions could only support an opinion that the impressions in the boots were similar to impressions that would be made by the appellant's feet. One of the experts was Sergeant Kennedy. Sergeant Kennedy's evidence was confirmed by Special Agent William Bodziak of the F.B.I. and Dr. Bettles, a podiatrist.
41 In holding the evidence to be admissible, the court stated:
The evidence given by the experts was technical, and based upon the knowledge and experience that they had accumulated in their field. It was not put forward on the basis of any unproven scientific theory. It was admissible evidence, again to be weighed by the jury in their determination beyond a reasonable doubt of the guilt of the accused ... (p. 161)
42 In Légère, the court appears to have dealt with the cumulative expertise of all three experts. Further, there were two distinctive facts that connected the accused to the boots in issue: the ac-cused had a callus on his right foot, caused by a cracked sole on the right boot, and there was a small nail protruding in the left boot that caused a mark in the boot and on the appellant's left heel.
43 Such evidence was not ultimately admitted in the recent case of State v. Jones, 541 S.E. (2d) 813 (S.C. 2001), however. The State wished to lead evidence to connect the appellant to a pair of steel-toed boots that had allegedly left a bloody footprint at the scene of two murders. To this end, the State had both Sergeant Kennedy and Agent Derrick qualified in the area of barefoot impression analysis. The trial judge admitted their evidence; the appellant was convicted. The Supreme Court of South Carolina overturned the conviction on the basis that the trial judge erred in admitting into evidence the opinions based on barefoot impression analysis. The court held that the study of bare-foot insole impressions was unreliable and that it is premature to accept that there is a science of "barefoot insole impressions".
44 In rejecting Sergeant Kennedy's evidence, the court noted at para. 5:
While Kennedy testified that he had published several peer-reviewed articles, he also testified that he was still in the process of collecting data in order to deter-mine which standards were appropriate for comparison purposes. Further, he candidly acknowledged that earlier work in this area had been discredited.
45 The court also held that there was insufficient evidence to show that: (1) the technique had been published and peer-reviewed; (2) the method propounded had been applied to this type of evi-dence in the past; and (3) the method was consistent with recognized scientific laws and proceed-ings. In short, the court concluded that "it is premature to accept that there exists a science of bare-foot insole impressions'".5
46 Barefoot impression evidence must be carefully evaluated on a case-by-case basis to deter-mine its admissibility. Based on the current state of the jurisprudence, such evidence may be admis-sible where there are distinctive features of the barefoot impression that can connect the footwear to the accused's feet, as in Légère. It may also be admissible to show that an accused person has not worn a particular pair of shoes or to eliminate persons as regular wearers of shoes. The fact, how-ever, that an accused person's footprint is "similar to" the barefoot impression in a boot or shoe ought not to be admissible as positive identification. As Sergeant Kennedy himself acknowledges, his research has not reached the stage where he can make a categorical identification from barefoot impressions.
(ii) Relevance
47 The Mohan test requires that expert evidence meet four criteria in order to be admissible: rele-vance, necessity, the absence of any exclusionary rule, and a properly qualified expert. Relevance is the only criterion in issue in this appeal.6
48 Relevance is a matter to be decided by the judge as a question of law. In determining rele-vance, the first step is to determine whether the evidence is logically relevant in the sense that it is so related to a fact in issue that it tends to establish it. If so, the judge must decide, among other things, whether its probative value is overborne by its prejudicial effect, including whether it is mis-leading in the sense that its effect on the trier of fact is disproportionate to its reliability. See Mohan at p. 411.
49 When considering the probative value of Sergeant Kennedy's evidence, it is important to keep in mind that the boots themselves were admissible. Their relevance is clear - the boots were found inside the front closet of the victim's home which tends to establish the proposition that someone who lived with the victim was involved in his death or the effort to conceal the evidence of the murder in the garage or both.
50 What fact in issue tends to be established by Sergeant Kennedy's evidence that the appellant was the likely wearer of the Eagle Rock boots?
51 Apart from Sergeant Kennedy's evidence, there is no evidence that the appellant owned the boots or that they belonged to him. Those who testified on this point said that they had never seen the appellant wear the boots. All residents of the home used the front hallway closet in which the boots were found.
52 There is no evidence that the assailant wore the Eagle Rock boots during the attack, as op-posed to the boots simply being in the garage when the assault took place. The bloodstains on the upper portion of each boot are inconsistent with the boots being shielded by a pant leg. This sug-gests that the boots were not worn at the time of the attack. However, when Sergeant Brown was asked about the staining on the upper portions of the boots, he speculated that the staining could have occurred if the assailant wore pants with short legs when committing the assault. It should also be noted that this pattern of spatter staining was also found on another pair of shoes found in the garage, the "L.A. Gear" shoes.
53 Sergeant Kennedy's evidence eliminated the victim and Faith Veltchev as regular wearers of the boots. However, it did not eliminate Tzenev as a wearer of the boots - the boots fit him and, as Sergeant Kennedy himself observed, other persons could have worn the boots for a limited period of time without affecting the patterns he observed. If the killer just borrowed the Eagle Rock boots, the patterns in the boots might still only reveal the foot impressions of the owner. The boots may have been worn by someone else at the time of the murder, or the boots may have been sitting in the garage, unworn, at the time of the murder. Sergeant Kennedy's evidence cannot exclude these pos-sibilities.
54 In the absence of evidence that the footwear belonged to the appellant and was worn at the time of the offence, the evidence about the Eagle Rock boots logically could do little to advance the case against the appellant. This fact distinguishes the case at bar from Légère. In Légère, there was evidence connecting the accused to the boots in that not only had the accused's feet made a mark or impression on the boots but the boots had made marks on the feet of the accused as well. Further, the bloody footprint in Légère suggests that the boots had been used in the commission of the of-fence.
55 In any event, in our view, the slight probative value of Sergeant Kennedy's evidence was out-weighed by its prejudicial effect. The risk that the jury might be over-awed by Sergeant Kennedy's expertise was a real one in this case. The evidence occupied a day and was augmented by diagrams, a lengthy discussion of the study of barefoot analysis and technical language about anatomy and laboratory procedures.
56 In light of the significant issues as to reliability of the evidence, its lack of logical relevance and the risk of distortion in the fact-finding process, the trial judge erred in principle in admitting Sergeant Kennedy's evidence. Having regard to this conclusion we must decide whether to order a new trial or whether to give effect to the appellant's argument of unreasonable verdict and order an acquittal.
Mr. Dimitrov's lawyer is on record as saying that the best day of his legal career came Oct. 29, 2005, when his client was acquitted of the 1996 murder.
After a 1999 conviction, four-and-a-half years in prison and a successful appeal, Dimitrov was finally exonerated -- 10 years after being charged on the dubious scientific evidence which the Court of Appeal fortunately rejected;
What better example of the danger inherent in allowing jurors to be exposed to relatively unsubstantiated "expert testimony."
Harold Levy...hlevy15@gmail.com;
