"SGT. KENNEDY IS AN EXPERT IN FOOTPRINT IDENTIFICATION. HE COULD OPINE WHETHER A RUNNING SHOE IMPRINT IN THE MUD BESIDE A BODY WAS CONSISTENT WITH THE TYPE OF RUNNING SHOE WORN ON THE DAY IN QUESTION BY AN ACCUSED. BUT HERE THERE WAS NONE OF THAT; THERE WAS ONLY A BLOOD-STAINED BOOT. HOWEVER, SGT. KENNEDY HAD ALSO DEVELOPED A SIDELINE EXPERTISE TRYING TO IDENTIFY SUSPECTS BY THE IMPRINT LEFT BY FEET INSIDE SHOES OR BOOTS, SPECIFICALLY THE PATTERN LEFT BY THE WEIGHT-BEARING PORTIONS OF THE BARE FOOT ON THE INSOLE. (53) THE MAIN PROPONENT OF BAREFOOT MORPHOLOGY IN CANADA AND THE U.S. IS RCMP SGT. KENNEDY HIMSELF."
JUSTICE IAN BINNIE: SCIENCE IN THE COURTROOM; THE MOUSE THAT ROARED;
-------------------------------------------------------------------------------
Justice Ian Binnie, of the Supreme Court of Canada set out his views on the relevance of "barefoot morphology" - as propounded by RCMP Sergeant Robert Kennedy - in an article entitled "Science in the courtroom: the mouse that roared," published in the University of New Brunswick Law Journal, on January 1 2007.
Justice Binnie published these views in a section of his paper called - Difficulties with the Gatekeeper Function - which explored the judges role in protecting accused persons from unproven science;
"It must be admitted that many courts are continuing to have serious difficulties in digesting and evaluating scientific evidence, even rather crude scientific evidence," Justice Binnie wrote;
"This is for both institutional and procedural reasons," he continued;(50)
"Institutionally, judges hesitate to exclude such evidence in a jury case for fear of usurping the fact finding function of the jury. Procedurally, in a judge alone case, there is always a temptation to let the evidence in, fully understood or not, and for the judge to leave it to the end of the trial to determine what weight, if any, it is to be given. Either way, the result can be an enormous waste of time and money and, in some cases, a miscarriage of justice.
In 2005, for example, the media were full of reports of another wrongful conviction based on identification of an accused as a murderer by the novel science of barefoot morphology. (51) Mr. Dimitre Dimitrov, a Bulgarian immigrant living in Ottawa, had been convicted four years earlier of murdering his landlord, who was also Bulgarian, by beating him to death with a blunt instrument. There was some evidence of mutual hostility, but there was nothing to tie Dimitrov to the murder except, according to the prosecution, a pair of boots that were covered with stains of blood which the Crown alleged belonged to the victim. There were no eye witnesses. The onus was on the prosecution to connect the boots to the accused. Royal Canadian Mounted Police (RCMP) Sergeant Robert Kennedy testified that the impressions people's feet leave on the insoles of footwear are quite distinct and that by applying techniques of barefoot morphology he could say that Dimitrov was "likely" the usual wearer of the boots. (52)
Sgt. Kennedy is an expert in footprint identification. He could opine whether a running shoe imprint in the mud beside a body was consistent with the type of running shoe worn on the day in question by an accused. But here there was none of that; there was only a blood-stained boot. However, Sgt. Kennedy had also developed a sideline expertise trying to identify suspects by the imprint left by feet inside shoes or boots, specifically the pattern left by the weight-bearing portions of the bare foot on the insole. (53) The main proponent of barefoot morphology in Canada and the U.S. is RCMP Sgt. Kennedy himself.
The Ontario Court of Appeal concluded in 2003 that Sgt. Kennedy should have been stopped at "the gateway" by the trial judge. (54) His evidence of "barefoot morphology" failed to meet any of the criteria set out in Daubert and R. v. J.-L.J.: there was no serious test of Sgt. Kennedy's hypothesis, and as such there was no opportunity for peer review and no error rate could be established. The Court therefore set aside Dimitrov's original conviction on the basis that the trial judge had not performed a proper gatekeeper role. At the retrial in 2006, Dimitrov was readily acquitted."
Harold Levy...hlevy15@gmail.com;
