TECHNOLOGY AND THE LAW

UNDERSTANDING EXPERT TESTIMONY IN RELATION

TO FORENSIC SCIENCE
 PARTI

PROFESSIONAL LAW ENFORCEMENT AND

SCIENTIFIC CRIMINAL EVIDENCE: AN OVERVIEW
"No crime is fouler than when a man thoughtlessly
takes the life of another. It is said that the victim's cries of
vengeance continue to storm the heavens until it is finally
satisfied. Sadly, the supplication of the dead is lost on the
living. Only the telltale signs of evidence could recount the
last minutes of the victim. If no such proof remains, the
truth may forever remain buried with the dead. "1

"So often has it been said that it is better for one

hundred criminals to go free than for one innocent man to
be convicted. That is the reason why we require the
constitutional presumption of ihnocence to be offset by the
most persuasive of proofs that will establish the guilt of the
accused beyond the whisper of a doubt. ,,2

I. Technology and the Law is included as an MCLE-prescribed subject in the

continuing legal education curriculum mandated under Bar Matter No. 850, as
implemented by the Mandatory Continuing Legal Education (MCLE)
Committee. 3 This is intended to keep legal professionals abreast with the
latest developments in science and technology which affect the legal
environment. In an age of information technology, the National Judicial
College of Reno, Nevada, U.S.A., and our own Philippine Judicial Academy
(Philja) are even training judges on how to operate computers hands-on
which helps tremendously in electronic research, caseflow management and
decision-making.

II. The Law, Law Profession and the Police Service.

A. Scientific Criminal Evidence.

A helpful tool in convicting the guilty,and acquitting the innocent.

8. The Role of Courts & Judges

 1. Judges are Gatekeepers of Expert Evidence. See Oaubert.4 In
Kumho Tire5 Cases.

C. Cases of Wrongful Convictions: Past & Present

1. Documented in "Convicting the Innocent- Sixty-Five Actual Errors of

Criminal Justice" authored way back in 1932 by Edwin M. Borchard
(Professor of Law, Yale University) dedicated to then Professor John H.
Wigmore of Northwestern University and then Professor Felix
Frankfurther of Harvard University

2. "The Court of Last Resort" published in 1952 by Erle Stanley Gardner

documents actual cases of convicts set free through the efforts of
Gardner and a group of forensic specialists who reviewed convictions
without doubtful evidence.

D. Lack of Knowledge of Lawyers and Judges of the Essentials of Forensic

Sciences. Of course, lawyers as well as judges cannot be faulted for not
knowing the essentials or rudiments of scientific criminal evidence
because these are not taught in law school. While only the 3 L's
(Language, Logic, and Law) are needed as communicaltion tools of
lawyers and judges, we only realized after law school that lawyers as well
as judges perform other functions - as fact-assemblers, interviewers,
counselors, negotiators, arbitrators, mediators, draftsmen, criminal
investigators and, most important of all, as advocates.

But we all know that if one enters law school overweight and unable to
play the piano, he will probably finish law school underweight but still
unable to play the piano, because there is only so much law school can
teach - playing the piano is not one of them.

E. Fundamental Lawyering Skills and Fundamental Values of the

Profession. 6 The Supreme Court's Mandatory Continuing Legal Education
(MCLE) Program, spearheaded by Chief Justice Hilario G. Davide, Jr., is
designed to update our fundamental lawyering skills, as well as upgrade
the fundamental values of the profession of law. The continuing legal
education programs and activities serve as venue for the discussion of
the various subjects interrelated with science and technology.

F. Why this Subject is Offered. To introduce practicing lawyers to this

important field and hopefully to excite their mind into more expansive
study. Then and only then can an advocate confidently and ably defend a
person accused of a crime in the face of the presentation of evidence of a
scientific nature, especially those which deal with ballistics, fingerprints,
and questioned documents and other trace evidences. For those
interested to know more, reference materials are listed at the end.

G. Justices Discuss the Impact of Science and Technology.: "The Court of

Appeals in the Digital Age." by Senior Supreme Court Justice Josue N.
 Bellosillo (Ret); "The Cour1 ot Appeals at the Threshold of Hope and
History", Associate Justice Artemio V. Panganiban's Speech before the
First Australasian Judicial Educators Forum (February 11 to 14, 2003) on
"Judicial Globalization."

PART II

FORENSIC SCIENCE/EXPERT EVIDENCE

"An Ideal system of law should draw its postulates and its
legislative jurisdiction from science. As it is now. we rely upon tradition,
or vague sentiment, or the fact that we never thought of any other way of
doing things, as our only warrant for rules wf1ich we enforce with as much
confidence as if they ernbodieo revealed wisdom The Italians have
begun to work upon the notion that the foundations of the law ought to be
scientific, and, if our civilizarion does not collapse, I feel pretty sure that
the regiment or division that follows us will carry that flag. . . .

"Very likely it may be that with all the help that statistics and every
modern appliance can bring us there never will be a commonwealth in
which science is everywhere supreme. But it is an ideal, and without
ideals what is life worth? They furnish us our perspectives and open
glimpses of the infinite." (Oliver Wendell/ Holmes, Collected Legal
Papers, 1921, pp. 139, 140, 242)..

"Now that science has entered into her kingdom and the vastness
of her domain is willingly recognized, - for in a vital sense all that may be
known by human ken, supported by evidence, presented in orderly
arrangement, related to other knowledge, and developed by further study
may be called science, - the busy problem is the infusion of the scientific
method into all our ways of thinking, its application to all the various kinds
of beliefs that affect our ideals. our work,ny conceptions, and our actions."
(Joseph Jastrow, The Psychology of Conviction, 1918, p. 47).

I. FORENSIC SCIENCE:

A. Introduction.

Without the use of forensic science, few modern crimes would be solved if the
perpetrator is not seen in the commission of the deed, or if a suspect does not confess.
Other form of evidence must be obtained, and its validity established in such a way to
secure a conviction. This is circumstantial evidence, and it is presented in court by
expert witnesses, to establish its significance and connection with the suspect. Only the
rigor of intensive scientific procedures can ensure that the evidence is convincing and
not insecure, otherwise the defense will seize upon it, and the doubt may result in a
verdict of Not Guilty. Forensic science therefore can be utilized to convict the guilty or
acquit the innocent because as the saying goes, unlike a witness, physical evidence
does not lie, but a witness does.

B. Forensic; Forensic Science.

 The word "forensic" means nothing more than "connected with the courtroom."
Whenever a particular scientific discipline is utilized to provide answers to a problem or
problems based on physical evidence, the scientific discipline itself acquires its own
scientific name, thus:

The Science of Firearms Identification - Forensic Ballistics

The Science of Fingerprinting - Forensic Dactyloscopy
Examination of Questioned Documents - No Equivalent
Scientific Study of Poisons - Forensic Toxicology
Science of Photography - Forensic Photography, etc.

The conclusions reached utilizing such scientific means is referred to as "expert

evidence" or "forensic evidence."

C. Criminalistics and Crlrninology.

Criminology is a social science, thus, a criminalist studies crime as a social

scientist. On the other hand, criminalistics is a physical science. Criminalistics is
therefore the application of scientific techniques in collecting and analyzing physical
evidence in criminal cases. 7 A criminalist does noi study crime in the abstract. He
studies crime in terms of physical evidence. The idea is to link or connect a suspect to
the crime or exclude him altogether. That is the reason why physical evidence is often
referred to as trace evidence.

D. Criminalist.

A crimina/ist, therefore, is a forensic scientist. Nonetheless, he is a detective but

his milieu is more the laboratory than it is the scene of the crime. He interprets evidence
by applying the laws of chemistry, biology, and physics. They qualify as experts in giving
court testimony and both the defense and the prosecution call upon them to give
credence to their arguments and often to solve the crime. They are always on the look-
out for new areas of exploration which might become a legitimate basis for criminal
investigation and identification. One criminalist is collecting fingernail pairings because,
like fingerprints, no two sets of fingernails are alike in their markings.

A real criminalist is not interested in editorializing; that is for the media. He is not
interested in motives; that is for the law enforcers. He is not interested in emotional,
often biased pleas for or against the accused; that is for the lawyers. He is interested
only in a scientific analysis of the evidence, which he regards as synonymous with the
truth.

Since objectivity is so germane to his work, the criminalist cannot allow winning
for his client - if he is retained by one - to be a prime consideration. He is not a "liar for
hire." He is not involved in a game that can be won or lost; he is involved with the truth
substantiated by scientific experience, research and analysis. This sometimes puts him
at odds with public opinion, not to mention his client.

His findings can be scientifically validated but this does not mean that his clients
are always vindicated. For the truth may be revealed, but it is not always understood; it
is not always believed.

E. How Courts View Expert Testimony.

The double edge of our criminal justice system. Although we have a trial by
judge, not by jury, even assuming that the witness is indeed an expert criminalist, a
judge is not bound to believe the testimony of a criminalist with his specialized
education, technical expertise, and most of the time, incomprehensible jargon.
Understandably, in a jury system, it is often more difficult to make expert testimony
believable.

Then again, the reverse could be true. A judge or jury might just believe the
testimony of a witness simply because he is considered an expert regardless of the
unsound basis of his conclusions. There are very few lawyers feared most by those who
testify on ballistics, questioned documents, fingerprints, and photography. One lawyer
stands out - Jose W Diokno. He is no longer among us. One should spend time to find
and read the transcripts of the cross-examinations he conducted on these subjects.

F. Historical Development.

Forensic science started witt1 rnedical practitioners who gave evidence on the
probable causes of unnatural death after an autopsy is carried out by a pathologist or
medical examiner, and the records were referred to as "medical jurisprudence." In law
school, we studied the subject ·'Legal Medicine" which does not really appear to be an
apt description of the course.

It is the forensic pathologist who provides samples of tissue and body fluids,
whole organs and, in most shooting cases, the significant bullet, for expert toxicologists,
serologists, and ballistics examiners to examine. Thus, the earlier forensic pathologists
paved the way and made important contributions to the development of the other
branches of forensic science.

Later, the great advances in the physical, chemical and biological sciences
resulted in the establishment of specialist forensic laboratories devoted to the
investigation of crime, and the consequent proliferation of experts in specific disciplines.

China. Europe. Forensic science developed very slowly. In 1533, the Caroline
Code published by the German Emperor Charles V was the first to lay down that
expert medical testimony must be obtained in cases of suspected murder,
wounding, poisoning, hanging, drowning, infanticide and abortion. The widely-
held objection against the dissection of corpses which inhibited the physicians
was gradually overcome. The 16u'-century French surgeon Ambroise Pare (d.
1590) was the first to trace bullets in gunshot victims.

Advances in Experimemai Science. England. Modern techniques of forensic

science, drawn from many actuai cases of Scotland Yard, found their way in the
investigations of fictional Sherlock Holmes through books authored by Scottish
physician Arthur Conan Doyie. Early forensic investigation, however, was the
province of university departments of medicine, and London's Metropolitan
Police Laboratory, under the auspices of the Home Office, was not opened until
1935.

United States of America. Worldwide. The Use of Computers in Solving

Crime. FBl's "Big Floyd." England's Home Office Large Major Enquiry System.
Known to everyone as HOLMES, it is an obvious tribute to author Arthur Conan
Doyle who created the fictional detective Sherlock Holmes. NBl's Clearance,
Records & Identification Division or Cl RD - collate all derogatory information
coming from city and municipal police stations, city and provincial prosecution
offices, and from the first and second level courts all over the country. This
division also classifies all fingerprints of applicants for clearance which appear in
the fingerprint card using the ten-finger classification system. The NBI has yet to
crudest sort, but down through the years tremendous strides have been made, and
today personal identification is a science in itself.

II. HISTORICAL SURVEY OF THE SYSTEMS OF IDENTIFICATION:

A. Ancient Times:

1. Mutilation and Branding of Criminals.

2. Tattoing and Scarification.

B.Personal Description.
C.Medieval Days Until the Middle of the Nineteenth Century.

II. THE SYSTEMS OF IDENTIFICATION.

The following classification and enumeration of the systems of identification of a

person is in no way complete. To be sure, new discoveries will continue in this field.

A. According to the Basis of Identification:

1. Personal.

a. Anthropometry (Bertillon System)

(1) Anthropometrical Signalment

(measurement of the body, head and limbs)
(2) Descriptive Signalment (Portrait Parle) - spoken picture
(3) Peculiar Mark Signalment - distinctive marks, peculiarities
and mannerisms

This Bertillon System, named after its inventor, was generally accepted for thirty
years, but in never recovered from the events of 1903. That was the year a man named
Will West was sentenced to the United States Penitentiary at Leavenworth, Kansas,
When he was received at Leavenworth, Will West denied previous imprisonment there,
but the record clerk ran the Bertillon instruments over him anyway. He knew the
reluctance of criminals to admit past crimes. Sure enough, when the clerk referred to the
fomula derived from West's Bertillon measurements, he located the file of one William
West whose measurements were practically identical to be that of the new prisoner.

But Will West was not coy about a previous visit to Leavenworth. When the clerk
turned over William West's record card he found it was that of a man already in the
Penitentiary, serving a life sentence for murder. Subsequently the fingerprints of Will
West and William West were impressed and compared. The patterns bore no
resemblance.

It would be hard to conceive of a more nearly perfect case for refuting the claims
of rival systems of identification. Although the two Wests are not known to have been
related, there was a facial resemblance like that of twin brothers. The formulas derived
from their Bertillon measurements were nearly identical, allowing for slight discrepancies
which might have been due to human variations in the measuring process. And finally,
there was the crowning coincidence of the similarity of names.
 computerize the comparison of fingerprints found in the crime scene with the
fingerprint data base of prior offenders. This would cost billions of pesos.I

II. EXPERT EVIDENCE:

A. Importance of Expert Evidence.

Expert evidence has become more and more important because our world and
our courtrooms have become rnorc cornplex. In litigations that involve issues on the
frontier of science and techn0log1c2i 3uvances, rhe success or failure of a case may well
hinge on the admissibility of exp<ort testi:r1011y

But expert evidence pr1:o:::e11rs oolh a e1c1nger and difficulty on the part of the
litigators and the courts. DangcH i)ecc.1us2 experts can assume a posture of mystic
infallibility. There is also difficuiry 01: [11e pc.:1:1 of the courts to evaluate expert evidence. It
is virtually impossible for lavvyers �mcJ JUdses lO acquire knowledge of something like
7,600 categories of subjects of expen testirnony.

B. Types of Exp..:n V'lliff,�sses.

The types of expert witnesses appear virtually limitless as you look at the
advertisements in the American Bar Association (ABA) Law Journal. In the United
States, one expert consulting company advertises that, as mentioned earlier, it has
7,600 categories of experts available to assist in litigation, in areas which include pit
bulls, judo, kegs, and yarn. But the most common types of experts are physicians in
various specialties; economists; engineers; and scientists with expertise in certain areas,
including epidemiology, toxicology, microbiology, and statistics.b

C. Expert Testii11oi1y, \.'\/hen Appropriate.

Generally, expert testin1or 1y is appropriate only when its introduction will further
elucidate or clarify issues ror Hie ·:;oun. Tr1is kind of expert testimony fall under the
following categories: (1) iv:eci111nq 01 cn:::11acter of physical evidence; (2) Determination of
likely causes of death or ir 1j1..,1, i C,-:p::cir ution of conduct of businesses or other activities;
(4) Calculation oi uc11nd'::Jc.:S

In contrast, there are mat1e1s whicn do not warrant the introduction of specialized
testimony: matters of common sense; common experience; the judge's own perception;
or simple logic.

PART Ill

SYSTEMS OF PERSONAL IDENTIFICATION

I. PRELIMINARY STATEMENT:

Positive identification 01 indiviauals nas always been a problem of vital

importance to law and order. 'Years and years ago, means of identification were of
the
 The fallibility of three systems of personal identification --- photographs, Bertillon
measurements, and names --- was demonstrated by this one case. The value of
fingerprints as a means of detecting that fallibility was established.

b. Body Fluids of a Person (blood, saliva, semen, urine, etc),

specifically handled by a qualified forensic chemist or
toxicologist.
c. Voice Print Identification
d. Ear Identification
e. Dactyloscopy (fingerprinting) and other Allied Science:

(1) Poroscopy
(2) Chiroscopy
(3) Podoscopy
(4) Edgeoscopy
(5) Middle Phalange System of Subclassification
(6) Necrodactylography

f. Personal History Record

g. General Background Record
h. Photography
i. Cartography
J. Photo-Robot
k. ldenti-Kit System
I. Teeth Identification
m. Handwriting Identification, including graphology.

2. Non-Personal:
a. External Non-Personal
(1) Attire, Laundry Marks, Jewelry, etc.
b. Other Forms:

(1) Forensic Ballistics. See subsequent detailed

discussion.
(2) Paraffin Test
(3) Shoe Prints, Tire Tread Marks, hair, fiber, glass, tool
marks, paper, inks, printing and related examination
(4) Forensic Medicine - specific determination of the
nature and extent of injuries or other causes of death
by autopsy
(5) Forensic Chemistry ; detection of poison (Toxicology)
(6) Cryptanalysis - Translation to break code and cipher
messages

B. As to Purpose or Nature of Identification:

1. Non-Criminal or Civil
2.Criminal

PART IV
FORENSIC SCIENCES MOSTLY AVAILED OF IN COURT
CASES AS A MEANS OF IDENTIFICATION

I. PRELIMINARY STATEMENT:

Forensic sciences are availed of in almost all cases to identify a person

whether as a suspect or a victim of a crime. Fingerprint examination, for one. has
been extensively used to identify charred bodies in disasters like plane crashes,
sinking of vessels and other disasters.The following discussion will focus on the
forensic sciences commonly availed of in court cases.

Out of the three - ballistics, examination of questioned documents, and

fingerprinting - two refer to personal identification while ballistics is a non-
personal means of identification.

II. FORENSIC BALLISTICS:

A. Introduction.:

The gunman who has personal illusions about committing the "perfect crime" in
this age of modern methods of crime detection, will most likely find himself behind prison
bars a very disillusioned man.

The rather remarkable thing about crimes involving a gun is that whenever a
triggerman pumps a bullet into the body of his victim, he releases a chunk of concrete
evidence that binds him inseparably to his act. For scientific criminologists have quite
recently discovered that every gun barrel deeply imprints on every bullet from it,
characteristic markings peculiar to that gun and that alone. These markings may be
microscopic but they are terribly vocal in announcing their origin. And they are as
infallible for purposes of identification, as the print left by the human finger. Like Nature,
man's subtlest craftsmanship can never create any two things exactly alike; no two pistol
barrels, delicately machined though they may be, can ever be identical, anymore than
the ridges on the tips of the human fingers can be identical. This discovery and
development of this basic truth has created an amazing science known as Forensic
Ballistics, a science unrivaled in the exactitude of its findings and its importance to
criminology.

The same thing can be said of the individual breech marks and firing pin marks a
particular firearm imprints on the cartridge cases or shells fired from it.

8. General Principles:

A cartridge, or round of ammunition, is composed of a primer, a cartridge case,

powder, and a bullet. The primer, a metal cup containing a detonable mixture, fits into
the base of the cartridge case, which is loaded with the powder. The bullet, which
usually consists of lead or of a lead core encased in a higher strength metal jacket, fits
into the neck of the cartridge case. To fire the bullet, the cartridge is placed in the
chamber of a firearm, immediately behind the firearm's barrel. The base of the cartridge
rests against a solid support called the breech face, or, in the case in the case of a bolt-
operated weapon, the bolt face. When the trigger is pulled, a firing pin strikes a swift,
hard blow into the primer, detonating the priming mixture. The flames from the resulting
explosion ignite the powder, causing a rapid combustion whose force propels the bullet
forward through the barrel.

The barrels of modern firearms are "rifled," that is, several spiral grooves are cut
into the barrel from end to end. The purpose of the rifling is to set the bullet spinning
around its axis, giving it a stability in flight that it would otherwise lack. The weapons of
a given make and model are alike in their rifling characteristics; that is, number of
grooves, number of lands (the raised portion of the barrel between the grooves) and
twist of the rifling. When a bullet is fired through a barrel, it is engraved with these rifling
characteristics. For example, all S. & W..38/200 British Service Revolvers have five
grooves and five lands, which twist to the right, and the bullets fired through such a
revolver will have five groove and land impressions, right twist.

In addition to rifling characteristics, every weapon bears distinctive microscopic

characteristics on its components, including its barrel, firing pin, and breech face. While
a weapon's rifling characteristics are common to all other weapons of its make and
model (and sometimes even to weapons of a different make or mode[), a weapon's
microscopic characteristics are distinctive, and differ from those of every other weapon,
regardless of make and model. Such markings are initially caused during manufacture,
since the action of manufacturing tools differs microscopically from weapon to weapon,
and since the tools change microscopically while being operated. As a weapon is used,
further distinctive microscopic markings are introduced by the effects of wear, fouling,
and cleaning.

When a cartridge is fired, the microscopic characteristics of the weapon's barrel

are engraved into the bullet (along with its rifling characteristics), and the microscopic
characteristics of the firing pin and breech face are engraved into the base of the
cartridge case. By virtue of these microscopic markings, an expert can frequently match
a bullet or cartridge case to the weapon in which it was fired. To make such an
identification, the expert compares the suspect bullet or cartridge case under a
comparison microscope, side by side with a test bullet or cartridge case which has been
fired in the weapon, to determine whether the pattern of the markings in the test and
suspect items are sufficiently similar to show that they were fired in the same weapon.

A bullet or cartridge case cannot always be identified with the weapon in which it
was fired. In some cases, the bullet or cartridge case is too mutilated. In other cases,
the weapon's microscopic characteristics have changed between the time the suspect
item was fired and the time the test item was fired - microscopic characteristics change
drastically in a short period of time, due to wear, or over a longer period of time, due to
wear, corrosion, and cleaning. Still again, the weapon may mark bullets inconsistently -
for example, because the bullets are smaller than the barrel, and travel through it
erratically". 9

C. Understanding Basic Terminology:

9 Taken from the Report of the Warren Commission on the Assassination of President Kennedy, 1964 Ed., The
New York Times Company, pp. 507-513. Note: President Lyndon B. Johnson, by Executive Order No. 11130 dated
November 29, 1963, created the President's Commission to investigate the assassination on November 22, 1963
in Dallas, Texas, U.S.A., of John Fitzgerald Kennedy, the 35th President of the United States. The Chainnan was
United States Supreme Court Chief Justice Earl Warren, with Senator Richard B. Russell, Senator John Sherman
Cooper, Representative Hale Boggs, Representative Gerald R. Ford, Mr. Allen W. Dulles, and Mr. John J. Mccloy
as Members, and J. Lee Rankin as General Counsel. The Report ran 888 pages, with eight (8) chapters and
appendices. Drafting the Report was done by the legal staff under the General Counsel, but all seven members of
the Commission themselves went over, edited and substantially rewrote the entire work, making the Report a
group product. The Commission said that it operated not as a judge or jury - because the assassin L�e Harvey
Oswald was himself killed and could never have a trial - but as a dispassionate fact-finder. The report 1s neutral
in tone, and despite the group authorship and the legal approach, it achieves a genuine literary style. Th � very
detail of the narrative is fascinating, and there are many moving passages. Few will be able to read it without
emotion.
 1. Firearms, defined.

"Firearm", or "arm", as herein used, includes rifles, muskets, carbines, shotguns,

revolvers, pistols, and all other deadly weapons from which a bullet, ball, shot, shell, or
other missile may be discharged by means of gunpowder or other explosive. The term
also includes air rifles except such as being a small caliber and limited range are used
as toys. The barrel of any firearm shall be considered a complete firearm for all
pu_rpos�s hereof. (Sec. 877, Act 2711, Rev. Adm. Code; see also PD 1866 & RA 8294).
It Is an mstrument for the propulsion of a projectile by the expansive force of gases from
burning powder.

a. Basic Types:

tf(( 1) Machineguns
2 ) Rifles.
(3) Handguns:

(a) Revolvers.
i. Single Action.
ii. Double Action.

(b) Pistols

i. Automatic (very rare) or

Semi-Automatic (common)
ii. Single action or double action (very rare)

b. Smooth-bore and rifled firearms. A shotgun is a smooth-bore weapon

designed to shoot a number of lead pellets in one charge.

2 Ballistics is the science of the motion of projectiles. Interior ballistics

treats of the motion of projectiles while still in the barrel, namely, studies
of combustion of powder, pressure developed, velocity, etc. Exterior
ballistics treats of the motion of projectiles after leaving the muzzle
namely, trajectory, velocity, energy energy, range, penetration, etc.
Forensic ballistics is the science of firearms identification by means of the
ammunitions fire through them.
3. Cartridge is a term used to describe a complete unfired unit consisting of a
bullet, primer, cartridge case and powder charge. A cartridge is composed
of the following parts:

(a) Cartridge case;

(b) Bullet;
(c) Powder charge;
(d) Primer cup

4. A bullet is a projectile propelled from a firearm. To reduce the tendency to

lead, bullets are plated with a thin coating of Copper or Lubaloy
(Lubricating Alloy) which is really copper with a small percentage of tin
and zinc. These are called plated bullets.
5. Automatic. A weapon is called automatic when its mechanism is so
arranged that it will fire continuously while the trigger is depressed.
6. Caliber is a term used to indicate the bore diameter which is measured
 from land to land.
7. Gauge or gage, as applied to shotguns, indicates that the bore diameter is
equal to the diameter of a lead all whose weight in pounds is equal to the
reciprocal gage index. Example: Bore diameter of 12 gauge is equal to the
diameter of a lead ball weighing 1/12 of a pound.
8. Bore is the cylindrical passage of the barrel through which the projectile
travels.
9. Breechblock is the steel block which closes the rear of the bore against the
force of the charge. The face of this block is called the breechface.
10. Chamber is that part of the firearm where the cartridge is placed for firing.
11. Ejector is that mechanism in a firearm which causes the empty shell or
ammunition to be thrown out from the gun.
12. Extractor is that mechanism in a firearm by which the empty shell or
ammunition is withdrawn from the chamber.
13. Grooves are the channels cut in the interior of a rifled gun barrel.
14. Lands are those raised portions between the grooves inside a rifled gun
barrel.
15. Small firearms are those which propel projectiles of less than one inch in
diameter.
16. Types of small firearms in general:

(a) Smooth-bore - Example: shotguns

(b) Rifled bore - Example: rifles, pistols, revolvers, etc.

17. Conversion Table-Equivalents of Calibers in Inches and Millimeters:

Cal. 22- About 5.59 mm

Cal. 25- About 6.35 mm
Cal. 32 - About 7.65 mm
Cal. 30-About 7.63 mm (Mauser)
Cal. 30 - About 7.65 mm (Luger)
Cal. 38 - About 9 mm
18. Riflings consist of a number of helical grooves cut on the interior surface
of the bore.
19. Purpose of Rifling - to impart a motion of rotation to a bullet in order to
insure stability in its flight so that the bullet will travel nose-on towards
the target.
20. Types of Riflings. The riflings in pistols and revolvers may be
conveniently divided into the following five types:
(a) Steyr Type - Four grooves, right hand twist; grooves and lands of
equal width. Used in earlier models.
(b) Smith & Wesson Type - Five grooves, right hand twist; grooves and
lands of equal width. Used in all Smith & Wesson firearms, except in
Revolver Cal. 45, Model 1917;.Harrington and Richardson Revolvers;
Iver Johnson Revolvers; but not in self-loaders.
(c) Browning Type-Six grooves, right hand twist; narrow land and broad
grooves (G2L).
(d) Colt Type - Six grooves, left hand twist; narrow lands and broad
grooves (G2L). Used in Colt Revolvers and Automatic Pistols; also on
Spanish pistols of Colt design.
(e) Webley Type - Seven grooves, right hand twist; narrow lands and
broad grooves. Used in Webley Revolvers.
 21. Types of Cartridges:

(a) Pin-fire - the pin extends radially through the head of the cartridge
case into the primer;
(b) Rim-fire - the priming mixture is placed in the cavity formed in the
rim of the head of the cartridge case. The flame produced is in direct
communication with the powder charge. Used in.22 Cal., .25 and .41
Derringer pistol;
(c) Center-fire - the primer cup is forced into the middle portion of the
head of the cartridge case and the priming mixture is exploded by the
impact of the firing pin. The flame is communicated to the power
charge through the vents leading into the powder charge.

22. Class and Individual (Accidental) Characteristics:

(a) CLASS Characteristics are thos which are determinable prior to the
manufacture of the firearms, namely:
Ca iberl
(2) Numbe r of lands
(3) Number of grooves
(4) W
Wid
idth
th of la
grnodosves
(6) Direction of twist
Pitch of rifling
(8) Depth of grooves
(b) INDIVIDUAL (ACCIDENTAL) Characteristics are those
determinable only after the manufacture of the firearms. which
They are
characteristics whose existence is beyond the control of man and which
have random distribution. Their existence in a firearm is brought about
through the failure of a t l in the normal operation through wear, abuse,
mutilations, corrosion, erosion and other fortuitous cause.

J D. Six Types of Problems in Ballistics:

Type I. Given a bullet to determine the type and make of firearm from
which it was fired.

Type II. Given a fired cartridge case to determine the type and make of
firearm in which it was fired.

Type Ill. Given a bullet nd a suspected firearm to determine whether or

not the bullet w as fired from the suspected firearm

Type IV. Given a fired cartridge case and a suspected firearm to

determine whether or not the cart ridge case was fired in the
suspected firearm.

Type V. Given two or more bullets to determine whether they were fired
from the same firearm.

Type VI. Given two or more fired cartridge cases to determine whether
or not they were fired in the same firearm. ( The Identification of
 Firearms by Jack Disbrow Gunther and Charles 0. Gunther, 1953
Edition, p. 1).

D. Identifying Evidence Bullets:

1. Principles of ldentification (Bullets):

a. No two barrels are microscopically identical as the surfaces of their

bores all possess individual and characteristic markings.

b. When a bullet is fired from a rifled barrel, it becomes engraved by the

rifling, and this engraving will vary in its minute details with every
individual bore. So it happens that the engraving on the bullet fired
from one barrel will be different from that on a similar bullet fired from
another barrel. And, conversely, the engraving on bullets fired from the
same barrel will be the same.

c. Every barrel leaves its thumbmark on every bullet which is fired

through it, just as every breechface leaves its thumbmark on the
base of every fired cartridge case.

2. How the Firearms Examiner Reaches an Opinion

The Comparison Microscope. The comparison microscope has two eyepieces,

which, by means of prisms, transpose a section of the evidence bullet so that it appears
directly over the section of the test bullet. The bullets are mounted on little spindles
which can be rotated by means of a micrometer, and the examiner merely rotates the
bullets patiently and carefully until he comes to a point where all of the individual
scratches on the test bullet match with those of the so-called evidence or fatal bullet. In
that event he knows that the two bullets were fired from the same evidence firearm; or
he can continue his rotation until he knows that there is no point at which the scratches
will coincide, and then he knows definitely and absolutely that the bullet was not fired
from the same weapon.

It is, therefore, apparent that if any of the class characteristics of the evidence
bullet do not tally with that of the firearm, that bullet was not fired from that firearm. [as
corrected]

E. Identifying Evidence Cartridges (Shells):

1. Principles of Identification (Shells):

a. The breechface and striker of every single firearm leave microscopical

individualities of their own.

b. The firearm leaves its "fingerprints" or "thumbmark" on every cartridge

case fired from it.

c. The whole principle of the identification is based on the fact that since
the breechface of every firearm must be individually distinct, the
cartridge case which is fired from it are imprinted with this
individuality. The imprint on all cartridge cases fired from the same
firearm are the same, and those on cartridge cases fired from different
firearms must also be different.
 First, the class characteristics of the evidence shells are determined. Those
which have different caliber than the evidence firearm are eliminated from the
examination because definitely they have not been fired from the firearms. Those with
the same class characteristics as the evidence firearm are examined in the laboratory.

Second, the individual characteristic impressions of the breech marks and/or

firing pin marks which can be seen under the comparison microscope are
photographed for court presentation.

2. How the Firearms Examiner Reaches an Opinion

F. Laboratory Procedures:

1. Obtaining test bullets or test cartridges from evidence firearm using a

bullet recovery box. filled with cotton or water, at least 6 feet in length.

2. Use the comparison microscope and take photomicrographs.

3. Prepare the ballistics report and comparison chart for court

presentation.

G. Recommended Procedure at the Scene of the Shooting:

Ill. Illustrative Decisions:

A. Philippine Cases:

1. People vs. Timbol:

In the case of People of the Philippines, plaintiff-appellee vs. Gregorio P. Timbol,

Carmelina timbol, Dalmacio Buan and Geronimo Buan, defendants-appellants, G.R.
Nos. 47471-47473, Per Curiam (Volume XI Lawyers Journal No. 3 (March 31, 1946) pp.
109-118),Our Supreme Court ruled:

"At this point, it may be well to refer to certain elementary principles of ballistics.
The barrel of a gun is bored with a cylindrical steel which leaves inside the bore a rifling
of spiral character. The rifling produces grooves and lands on the bore which are
impressed upon the bullet that passes through the barrel. These impressions or
striations identify the gun from which a bullet is fired. To determine, therefore, whether or
not the bullet is fired from a certain gun, it is compared with test bullets that are actually
fired from that gun. If the striations appearing on the test bullets match or marry with the
striations appearing on the bullet in question the conclusion is that the latter bullet has
been fired from the said gun. The striations, being minute scratches, can be seen under
a compound microscope and may be reproduced in photographs. If eight or more
scratches or striations coincide, they are sufficient ground for identification. This is the
procedure followed by Lt. Cabe in identifying the gun from which the bullet, Exhibit DD-1,
has been fired. It is not now necessary to discuss in detail his testimony regarding his
conclusion on the matter. We have examined thoroughly such testimony as well as the
photographs which he exhibited in court showing that the bullet in question and the test
bullets were fired from the same pistol, and we are fully satisfied that the expert's
conclusions are correct."

2. People vs. Felipe B. Pareja, Cesario Orongan, Avelino Monzo/in and

Gaspar Misa (Criminal Case No. V-8601, CF/, Cebu, Judge Amador
Gomez, presiding).
 This story is told to provide a complete picture of the actual application of the
science of forensic ballistics in an actual case.

While I was connected with Ballistics Division, NBI, I was assigned to this case
upon request of Special Prosecutor Jesus V. Abeleda, on orders of Asst. Director
Osmundo L. Galang (Chief, Ballistics Division, NBI). My mission, approved by NBI
Director Jose Lukban, was two-fold: (1) To assist Asst. Director Galang in the
examination of ballistics evidence, and the presentation of the results in court in Cebu
City; and (2) To assist Special Prosecutor Abeleda, Asst Fiscal Rafael R. Ybanez, and
the private prosecutors, Honorato Hermosisima and Regino Hermosisima, in the
ballistics aspect of the case and finally to collate the ballistics evidence and submit, after
clearance of Asst. Director Galang, a clean draft of a ballistics memorandum which
would touch on the relevance of ballistics evidence vis-a-vis the whole case, for the
consideration, refinement and approval of the prosecution, for inclusion as part of the
memorandum for the prosecution.

Out of the five (5) firearms recovered, three (3) were immediately eliminated from
further ballistics examination, namely, Ruby-Extra Caliber .32, with SN-569584 (Court
Exhibit "L"), Ruby-Extra Caliber .32, with SN-569950 (Court Exhibit "P"), and Star Auto
Pistol, Caliber 380. with SN-306496 (Court Exhibit "N") because they had a variance in
class characteristics as the evidence bullets, thus, conclusively, none of these
firearms was the lethal weapon

NBI Ballistics Report No. 8-4-76 (Court Exhibit "YY'), dated July 15, 1961
showed that the first two bullets (Court Exhibits "8'' and "C") were fired from Colt
Revolver Caliber .32, bearing Serial No. 200425 (Court Exhibit "O"), but the third bullet
(Court Exhibit "O") had no sufficient individual characteristics to establish identification
as to whether or not it was fired from the Colt Revolver (Court Exhibit "O"), thus, the
finding was inconclusive, meaning, that there was no identification ..

The two (2) firearms were subjected to detailed technical examination, namely,
Colt Revolver Caliber .32, with SN-530542 (Court Exhibit "M") and Colt Revolver Caliber
.32, with SN-200425 (Court Exhibit"O"). The ballistics memorandum which I submitted to
the prosecution reflects the following:

"Sufficient coincidence in striations was obtained in the

comparisons made between the test bullets fired from the Colt Revolver,
Cal. . 32, SN-200425 (Exhibit "O'J and the evidence bullets (Exhibits "B''
and "C'J, but not on the evidence bullet, Exhibit "O", due to its deformed
and mutilated condition. This proves conclusively that the evidence
bullets (Exhibits "B'' and "C'J were fired from the evidence firearm
(Exhibit "O'J. However, no such findings could be made from the
comparisons made between the test bullets fired from the Colt Revolver,
Cal. .32, SN-530542 (Exhibit "M'J and the same evidence bullets, proving
conclusively that the evidence bullets were not fired from the evidence
firearm (Exhibit "M")."

That statement was based on NBI Ballistics Report No. B-4-761, dated July 15, 1961,
which contained the following "FINDINGS-CONCLUSION":

"1. Comparative examinations were made between evidence

bullets, Exhibits "HP1" and "AA T", and test bullets fired from the evidence
firearms with positive results on Colt Revolver, Caliber .32, SN-200425;
the evidence bullets "HP1" and "AA T" were fired through the barrel of Colt
Revolver, Caliber . 32, SN-200425.
 2 Comparative examinations were made between evidence bullet
Exhibit "HP2" and test bullets fired from Colt Revolver, Caliber .32,
SN=200425. There are no sufficient individual characteristics to establish
identity as to whether or not evidence bullet Exhibit "HP2" was fired
through the barrel of Colt Revolver, Caliber . 32, SN-200425 due to its
deformed, mutilated and distorted condition. ,,1CJ

B. U. S. Cases:

A witness, who is sufficiently qualified by training and experience to state an

expert opinion on the subject of ballistics, may identify the gun from which a bullet or
cartridge was fired, by making a comparison, between the markings on a test bullet or
cartridge and those on the bullet or cartridge connected with the crime charged. 11 In
making such a comparison, the expert may enlist the aid of a microscope, 1" microscopic
magnifying glass, 13 or photographs. 14 The weight of such expert testimony is for the jury
[or judge) to determine. 15 But in Jack v. Commonwealth, 222 Ky 546, an opinion based
upon the use of an ordinary magnifying glass was excluded as too crude.

Ill. The Science of Fingerprints (Dactyloscopy):

A. Introduction.

Criminal Identification. Criminal identification by means of fingerprints is one of

the most potent factors in obtaining the apprehension of fugitives who might otherwise
escape arrest and continue their criminal activities indefinitely

Civil Identification. From earliest times fingerprinting, because of its peculiar

adaptability to the field, has been associated in the lay mind with criminal identification to
the detriment of the other useful phases of the science.

Basis of Identification. The use of fingerprints for identification purposes is

based upon distinctive ridge outlines which appear on the bulbs on the inside of the end
joints of the fingers and thumbs. These ridges have definite contours and appear in
several general pattern types, each with general and specific variations of pattern,
dependent on the shape and relationship of the ridges. The outlines of the ridges
appear most clearly when inked impressions are taken upon paper, so that the ridges
are black against a white background. This result is achieved by the ink adhering to the
friction ridges. Impressions may be made with blood, dirt, grease or any other foreign
matter present on the ridges, or the saline substance emitted by the glands through the
ducts or pores which constitute their outlets. The background or medium may be paper,
glass, porcelain, wood, cloth, wax, putty, silverware, or any smooth, nonporous material.

An Infallible Method of Identification.

Science of Fingerprinting: Background and History.

B. General Principles:
 Fingerprints and Palmprints, How Made.

Latent Print. A latent print is the result of perspiration exuded by the sweat pores
in the ridges. This perspiration is composed of water, protein or fatty materials, and
sodium chloride (salt). A latent print can be developed-made visible-in several ways.
Sometimes a latent print can be developed merely by the use of correct lighting. A
second method is to brush the print very lightly with a powder, which adheres to its
outline. Once a print is powdered it can be photographed, lifted, or both. (In lifting, an
adhesive substance, such as scotch tape, is placed over a powdered print. When the
adhesive is lifted the powder clings to its surface. The adhesive is then mounted.)
However, powder is usually effective only on objects which have a hard, smooth,
nonabsorbent surface, such as glass, tile, and various types of highly polished metals
and is usually not effective on absorbent materials, such as paper or unfinished wood or
metal, which absorb perspiration so that there is nothing on the material's surface to
which the power can adhere

A print taken by a law-enforcement agency is known as an "inked print", and is

carefully taken so that all the characteristics of the print are reproduced on the fingerprint
card; a print which is left accidentally, such as a print left at the scene of a crime, is
known as a latent print.

Identifying a Latent Print. To make an identification of a latent print, the expert

compares the points in the latent print with the points in an inked print.

Number of Points Necessary for Identification. There is some disagreement

concerning whether a minimum number coneer1Ji119 wlletller a mirJitoom w1111ber bf
points is necessary for an identification. Some foreign /aw-enforcement agencies
require a minimum number of 16 points. However, in the United States, in which there
has been a great deal of experience with fingerprints, ·expert opinion holds there is no
minimum number of points, and that each print must be evaluated on its own merits.

Palmprints. Palmprints are as distinctive as fingerprints, but are not as popularly

known.

Objects in the Texas School Book Depository Building. A number of objects

found in the Texas School Book Depository Building following the Kennedy
assassination were processed for latent fingerprints by the FBI-in some cases, after
they had been processed by the Dallas police. These objects included the homemade
wrapping paper bag found near the southeast corner window; the C2766 rifle; three
small cartons which were stacked near that window (which were marked "Box A," "Box
B," and "Box C"), and a fourth carton resting on the floor nearby (marked "Box D"); the
three 6.5-millimeter cartridge cases found near the window; and the cartridge found in
the rifle. The results were as follows: The paper bag;The C2766 rifle. The cartoons.
The three cartridge cases and the cartridge case found in the rifle

Experts in the Kennedy Assassination Investigation.

C. General Groups of Fingerprints.

Fingerprints may be resolved into three large general groups of patterns, each
group bearing the same general characteristics or family resemblance. The patterns
may be further divided into sub-groups by means of the smaller difference existing
between the pattern in the same general group. These divisions are as follows:

I. ARCH
 a. Plain Arch
b. Tented Arch

II. LOOP

a. Radial loop
b. Ulnar loop

Ill. WHORL

a. Plain Whorl
b. Central Pocket loop Whorl
c. Double loop Whorl
d. Accidental Whorl

C. Fingerprint Identification:

1. Determine the general type or characteristic

2. Comparison of the individual characteristics of the ridges

D. Fingerprint Filing

1. The Classification Formula and Extensions

2. Classification of Scarred Patterns
2. Filing Sequence
3. Searching and Referencing

E. Special Procedures

1. Taking inked fingerprints - the rolled and plain impressions

2.Problems and Practice in Fingerprinting the Dead

a. The Newly Dead

b. Stiffening of Fingers and Early Decomposition
c..Advance Decomposition
d. Dessicated (dried) and charred prints

3. Latent impressions

a. Powdering and lifting

b. Chemical development

4. Using the Fingerprint Camera

5. Preparation of Fingerprint Charts for Court Testimony

Ill. Examination of Questioned Documents:

"In the unbiased search for the truth the law has no favorites by
presumption. Silent circumstances, without power to change their
attitude, or to make explanations, or to commit perjury, may speak as
truthfully in court as animated witnesses. When an issue of forgery in a
civil case is raised by pleadings and contested by evidence on both sides,
there is no presumption either in favor of witnesses or in favor of
circumstances. All of the evidential facts which throw light on the issue
must be considered in connection with the a/legation of proponents that
the will is genuine and with the charge of contestants that the document
offered for probate is a forgery. If the truth is found in oral testimony, it
must determine the issue, but it is equally potent if found in circumstances.
n (Opinion by Mr. Justice Rose, In re O'Connor's Estate, 105Neb. BB.
179N.W 401 (1920)).

'The testimony of attesting witnesses to a will may be overcome by

any competent evidence. . . . Such evidence may be direct, or it may
be circumstantial; and expert and opinion evidence is just as competent
as any other evidence. Indeed, where the signature to a will is a forgery,
and where the attesting witnesses have the hardihood to commit perjury,
it is difficult to see how the bogus will be overthrown except by exper t and
competent opinion evidence tending to show that the pretended signature
is not that of the testator, but spurious. The rule contended for by
appellants would frequently baffle justice and give judicial countenance to
many a highhanded fraud." (Opinion by Mr. Justice Dawson, Baird vs.
Shaffer, 101 Kan. 585, 168 Pacific 836 (1917); Underscoring supplied).

A. Introduction.

1. Osborn's Introduction to His First Edition:16

The Problem of Questioned Documents.

The Lawyer's s Task.
The Problem of Forgery and Spurious Papers.
Increase in Forgery Cases.
Importance of Admitting Genuine Writings as Standards for Comparison.
Testimony on Handwriting by Recollection a Ridiculous Legal Fiction.
Duty of Competent and Honest Expert. (Albert S. Osborn, .April 5, 1910,
Underscoring & Headnotes Supplied).

2. Preliminary Examination of Questioned Documentsn

Reasons Why a Document is Questioned.

Role of Lawyers when Document is Questioned.
Increasing Use of Documents and Opportunities for Fraud.
Time-Bound Document Examinations.
Questioned Document Specialist Represents Justice.
Questioned Document Inquiry is a Scientific Problem.
The Influence of Partisanship and Advocacy.

Principal Points for Consideration. The principal points for consideration-not

all applicable in any one case-are:

(1) Is the signature genuine? (2) Is the signature in a natural

position? (3) Are the witnesses' signatures genuine and were they written
in the order they appear? (4) Does the signature touch the other writing
and was the signature written last? (5) Is the writing of the body of the
document genuine? (6) Is any of the writing disguised or unnatural in any
way? (7) Are the standards submitted all genuine, consistent with
themselves, and of proper date? (8) Are there remains of pencil or carbon
marks which may have been an outline for the signature or other writing?
(9) Is the signature shown in embossed form on the back of the sheet?
(10) Was the document written before the paper was folded? (11)Was the
signature written before or after the paper was folded? (12) How many
times and in what way was the document folded? (13) Is there any
significance in the design of the signature as indicating its date? (14) Was
more than one kind of ink used in the preparation of the document? (15)
Is the apparent age of the writing ink used consistent with the date of the
document? (16) What kind of paper was used and does its size, shape,
color, or constituents, have any date or origin significance? (17) What is
the watermark? (18) Arc the several sheets of the document exactly the
same size. thickness and color'! (19) Does the paper ruling have any
significance'! (20) Was the paper tom, burned. or mutilated in any way.
and. if so, for what purpose? (21) ls the paper of an unusual size, is it
indented on any margin, and was it trimmed or cut by hand at any place?
(22) Was the paper stapled or otherwise fastened together more than once?
(23) Is the paper unnecessarily soiled and crumpled? (24) Are there
discolorations or stains on the paper and, if so, what probably caused them
and are they natural or artificial? (25) Does the document contain
abrasion. chemical, or pencil erasures, alterations, or substitutions of any
kind? (26) Does the document show abrasion erasures or lack of
continuity when viewed by transmitted light? (27) Are there offsets of ink
writing from other sheets of paper? (28) Was the document copied in a
wet copying press? (29) Has the document been wet in any way, and, if
so, for what purpose? (30) Have accidental pencil or other marks been
made on the paper? (31) If typewritten, was it all written on the same
machine? (32) What kind of machine was used? (33) Was each sheet
written continuously at one time without being removed from the
typewriter? (34) Is the history of the machine consistent with the date of
the document? (35) Are there added figures, words, clauses, sentences,
paragraphs. or pages, written on a different typewriter? (36) Is the
typewriter the work of a skilled operator? (37) Are the indentions,
margins. punctuation and spacing uniform? (38) Was the typewriting
written by the operator alleged to have written it? (39) Is the connection
of the pages continuous in language and ribbon condition consistent with
other work on the machine of the same date? (40) Do perforations agree
with the stub from which it is alleged the paper came. and do stub and
document have continuous or overlapping watermark? (41) If document is
a carbon copy, does it conform in size, position, and arrangement of
matter, with original letter-heads? (42) Does the printing or ruling, on the
document have any date or other significance? (43) If document is a
letter, does postmark, postage stamp, cancellation stamp, or manner of
sealing and opening envelope, or embossing on enclosure, have any
significance? (44) Was writing blotted, and does the use of a blotter
indicate proper continuity or lack of continuity.(45) Are there indentations
in the paper from handwriting, or typewriting, on a sheet placed above the
paper examined? (46) Is the sequence of ink writing and pin-holes,
cancellation stamps, or punch-holes, consistent with genuineness? (47) ls
the rubber-stamp impression. if any appears. made from a genuine stamp?
(48) Do the eyelets, fasteners. perforations have any date significance'?
(49) Is the attached seal of proper date, or the seal impression made from a
genuine seal and is it made in proper sequence? (50) Do the names,
 streets, or events referred to in the document have any date or other
significance bearing on the question of genuineness?

Following Scientific Methods.

Cautionary Rules. As far as the conditions permit. the careful examiner will
observe the following cautions:

(1) Avoid, in giving an opm,on, being influenced in any way by

those who present the problem. (2) Avoid, if possible, the bias that may
come from hearing a one-sided "history of the case", by not allowing the
history to be related. (3) Avoid the bias that may arise from being told, or
shown, what to others appeared significant. (4) Avoid being led into
giving an unwilling or panial opinion. (5) Avoid forming any definite
opinion whatever from general appearance. (6) Avoid as far as possible
being misled in any way by a first impression. (7) Avoid basing an opinion
entirely upon system or nationality characteristics. (8) Avoid influence on
opinion of either friendship, or of antipathy, or any matters or influences of
any kind outside of the actual document itself. (9) Avoid a hasty
conclusion, and especially refuse to give an offhand, or "sidewalk",
opinion. (10) Avoid giving any opinion whatever on inadequate
standards, standards prepared for the purpose, or standards that in any
way are under suspicion. (11) Avoid giving an opinion on a disputed
writing too limited in extent. (12) Avoid, if possible, receiving information
as to what other opinions have been given. (13) Avoid, as a rule, the
giving of an oral, instead of a written, repo,t that later may be misinterpreted
or exaggerated in a repo,t to others. (14) Avoid, if possible, an "eleventh
hour'' examination, with no time for review and re- examination.

Preparation of Proof.
Removing the Probability of Error.
Human Testimony and Fact Evidence.
The Lawyer and the Client.
Duty of Courts to Correct Erroneous Decisions Caused by Prejudice,
Sympathy or Ignorance.
The Law Student, the Scientific Investigator and the Public.
The Parties in a Legal Controversy.
The Role of the Technical Witness..

B. General Principles: 18

Principles in Handwriting Identification. The area of questioned document

examination encompasses many types of inquiries, the most familiar of which is the
identification of handwriting. Handwriting identification is based upon the principle that
every person's writing is distinctive. As Cole testified:

Q. Mr. Cole, could you explain the basis on which you were able to make an
identification of a questioned writing as being authored by the person who wrote a
standard writing?
Mr. COLE. This is based upon the principle that every handwriting is distinctive,
that since the mental and physical equipment for producing handwriting is different in
every individual, each person produces his own distinctive writing habits. Of course,
everyone learns to write in the beginning by an endeavor to repeat ideal letter forms but,
practically no one is able to reproduce these forms exactly. Even though a person might
 have some initial success during the active period of instruction, he soon departs from
these and develops his own habits. It may be said that habit in handwriting is that which
makes handwriting possible. Habit is that which makes handwriting efficient. If it were
not for the development of habit, one would be obliged to draw or sketch.

Some habit would be included even in those efforts. But the production of
handwriting rapidly and fluently always involves a recording of personal writing habit.
This has been confirmed by observation of a very large number of specimens over a long
period of time, and it has further been demonstrated by, on my part, having a formal
responsibility for rendering decisions about the identification of handwriting based upon
an agreement of handwriting habit in situations where there would be a rigorous testing of
the correctness of these decisions by field investigators, for example, of the law-
enforcement agencies, and demonstration that these results were confirmed by other
evidence.

This is the basis for identification of handwriting.

The same principles are generally applicable to hand printing, and in the balance
of this section the term "handwriting" will be used to refer to both cursive or script writing
and hand printing.

Not every letter in a questioned handwriting can be used as the basis of an

identification. Most people learn to write letters in a standard or "copybook"
form: a handwriting is distinctive only insofar as it departs significantly from such
forms. Correspondingly, not every variation indicates nonidentification; no two
acts are precisely alike and variations are significant only if they are distinctive.
Moreover, since any single distinctive characteristic may not be unique to one
person, in order to make an identification the expert must find a sufficient number
of corresponding distinctive characteristics and a general absence of distinctive
differences.

The possibility that one person could imitate the handwriting of another and
successfully deceive an expert document examiner is very remote.

A forger leaves two types of clue. First, he can seldom perfectly simulate the
letter forms of the victim; concentrating on the reproduction of one detail, he is likely not
to see others. Thus, the forger may successfully imitate the general form of a letter, but
get proportions or letter connections wrong. In addition, the forger draws rather than
writes. Forged writing is therefore distinguished by defects in the quality of its line, such
as tremor, waver, patching, retouching, noncontinuous lines, and pen lifts in awkward
and unusual places.

To make a handwriting identification, the handwriting in the document under

examination (the questioned document) is compared against the handwriting in
documents known to have been prepared by a suspect (the known or standard
documents). This is exemplified by Cole's examination of Commission Exhibit No. 773,
the photograph of the mail order for the rifle and the envelope in which it was sent:

Q. Now, Mr. Cole, returning to 773, the questioned document, can you tell the
Commission how you formed the conclusion that it was prepared by the author of the
standards, that is, what steps you followed in your examination and comparison, what
things you considered, what instruments or equipment you used, and so forth?

Mr. COLE. I made first a careful study of the writing on Commission Exhibit 773
without reference to the standard writing, in an effort to determine whether or not this
writing contained what I would regard as a basis for identification, contained a record of
writing habit, and as that-as a result of that part of my examination, I concluded that this
is a natural handwriting. By that I mean that it was made at a fair speed, that it doesn't
show any evidence of an unnatural movement, poor line quality, tremor, waver,
 retouching, or the like. I regard it as being made in a fluent and fairly rapid manner which
would record the normal writing habits of the person who made it

I then made a separate examination of the standards, of all of the standard

writings, to determine whether that record gave a record of writing habit which could be
used for identification purposes, and I concluded that it, too, was a natural handwriting
and gave a good record of writing habit

. I then brought the standard writings together with the questioned writing for a
detailed and orderly comparison, considering details of letter forms, proportion, pen
pressure, letter connections, and other details of handwriting habit. ***

The standards used by Cole and Cadigan consisted of a wide variety of

documents known to be in the handwriting of Lee Harvey Oswald, including
indorsements on his payroll checks, applications for employment, for a passport, for
membership in the American Civil Liberties Union, and for a library card, and letters to
the Immigration and Naturalization Service, the Marine Corps, the State Department,
and the American Embassy in Russia.

Expert Questioned Document Examiners in the Kennedy Assassination

Investigation.

B. Coverage and Procedural Aspects of

19
Examination of Questioned Documents:

1. Generally:

In the field of document examination we find criminal acts like forgeries in

checks, deeds and wills; extortion and ransom notes; anonymous or libelous letters and
similar writings which are frequently the basis of the complaint of the victim. In these
instances the examination of a document is to determine the identity of the person who
prepared it and to ascertain whether it is genuine.

Handwriting examination particularly involves the study of the general characteristics

of a person's handwriting or form of writing; then the study of the special distinctive
features of such handwriting, such as, the peculiarities in punctuation, spelling and
composition, taking specific note of the unconscious tricks or style. Standard or
admitted writings are used for comparison. Questioned and standard writings are also
measured, and compared as to slant, and other distinctive features. Normally,
comparison charts showing the points of similarities of the distinctive features of
handwriting are presented in court.

In case of forgery, signatures are examined under the microscope to detect signs of
tremors which may indicate forgery by tracing. In the 1970's, we retained a handwriting
expert in the case of Cuenca v. Gui/as to determine why the vote of "Gullas" in thirty-two
ballots, in one precinct, were erased and superimposed with the same name "Gullas" to
make it appear that the name "Gullas" in the 32 ballots were written by one person.
Using infra-red photography, the original vote of "Gullas" in each of the 32 ballots were
clearly shown to be written by different persons. Obviously, someone illegally got hold of
the 32 ballots and after erasing the name of "Gullas" only one person was made to write
the same name "Gullas" in all the 32 ballots so that they will be nullified for being
obviously written by one person. The House Electoral Tribunal, chaired by Supreme
Court Justice Arsenio Dizon refused to invalidate the ballots. If the ballots were
invalidated Gullas would have lost because he won by only 16 votes in the whole district.
The protest however was overtaken by the declaration of martial law.
 2. Preliminaries:

Terminology Used in the Examination of Disputed Handwriting and Other

Questioned Documents. For a proper understanding of the science of questioned
documents especially in the examination of disputed handwriting, one must familiarize
himself with the various terminologies used which may look foreign even to lawyers but
are actually easy to understand. The terms are arranged alphabetically, courtesy of my
late friend, Dr. Teodulo C. Natividad, 20 my partner in the defunct Natividad Maambong
de/os Reyes & Brion Law and Crimina/istics Office.

Arcaded & Garlanded Type.Angular Writing. Base Line. Blunt.

Buckle Knot
Chain of Custody - Pertaining to the process by which evidence is
handled, transferred and accounted for between the time of discovery and
the disposition of the case. The chain must establish each person having
custody of evidence at a given time.
Check Kiting - A method of operation in which several checking
accounts based upon non-existent funds are opened in the attempt to
withdraw funds.
Circumstancial Evidence - Evidence that does not directly prove the
truth of a fact in issue, but which may establish a strong inference as to
the truth of that fact: also known as indirect evidence
Collected Standards
Confession - A direct acknowledgment of guilt for the commission of a
criminal act. Information supporting the elements of a crime that is
provided and attested to by any person involved in committing the crime.
It can be oral or written.
Class Characteristics
Criminalistics - The application of may fields of natural science to the
detection of crime. It applies the physical sciences and their technology to
examining physical evidence. Also called forensic science.
Custodial Interrogation - Questioning by law enforcement officers after
a person has
Deductive Reasoning - A thinking process in which a particular
inference is drawn from a generalization in the absence of all the facts or
evidence.
Diacritic
Dictated Standards
Direct Evidence - Evidence that directly establishes the main fact of
issue, without an inference or presumption. This evidence is gathered
directly from sensory perception.
Ending or Terminal Strokes or Toe
Flying Start & Flying Finish
Forensic Science - Applies the physical sciences and their technology
to examining physical evidence. Also called criminalistics.
Guided-Hand Signatures. Hiatus. Hesitation .Individual Characteristics
Inductive Reasoning - A thinking process in which a conclusion is
reasoned only after all particular facts are gathers.
Inference- A judgment based on reasoning.
Infrared Energy - The invisible energy beyond the red end of the color
spectrum.Used in photography to see through a haze, to read smeared or
deteriorated writings and erasures, and to distinguish among inks, dyes,
and other pigments.
Inside or Medial Letters
Lands and Grooves - Raised and indented portions of a firearm barrel,
generally known as rifling, that serve to impart a spin to the bullet. The
cutting tools used in the rifling process often produce characteristic marks
which may assist in identification.
Patching . Line Quality
Loan Sharking - Lending money at exhorbitant rates. Also called
shylocking.
Macrophotography - Enlarges a subject to show details of evidence
such as fingerprints or toolmarks.
Microphotography - Taking pictures through a microscope to help
identify minute particulars of evidenc, e. g. a hair or fiber.
Miranda Warning - Informs suspects of their right to remain silent, to
have counsel present, and to have the state appoint counsel if they
cannot afford one. I also warns suspect that anything they say can be
used against them in a court of law.
Modus Operndi or M.O. - The characteristic way a criminal commits a
specific type of crime.
Physical Evidence - Anything that is real, has substance, and helps to
establish the facts of a crime.
Polygraph - Lie detector. Scientifically measures perspiration and depth
of breathing, changes in the skin's electrical resistance, and blood
pressure and pulse.
Post Litem Motam Exemplars
Pica. Elite .Photostat. Penlift. Print Writing. Questioned Document.
Requested Standards. Retouching. Rubric
Spectrograph - Laboratory instrument that burns minute samples of
various substances to determine the elements present.
Spectrophotometer - Laboratory instrument that rapidly analyses color
and coloring agents insmall samples of material.
Standard of Comparison - An object, measure, or model with which
evidence is compared to determine whether both originated from the
same source.
System of Handwriting. Sympathetic Ink. Safety Paper Stem or
shank. Shading Slant or Slope. Sequence of Crossed Lines
Trace Evidence - Extremely small physical matteras basis for
identification.
Tremor of Fraud
True Scene - Crime scene where no evidence has been introduced or
removed except the person (s) committing the crime. Also called an
uncontaminated scene.
Typewriting Examinations
Ultraviolet Light - The invisible energy at the violet end of the color
spectrum that causes substances to emit visible light. Commonly called
fluourescence. Used to detect scret inks, invisible laundry marks, seminal
stains, markde "buy" money, or extortion packages.
Uncontaminated - Crime scene where no evidence has been introduced
or removed except by the person(s) committing the crime. Also called a
true scene.
 Voice Print - Graphic record of an individual's voice characteristics made
by � sound spectrograph that records energy patterns emitted by speech.
Vo�ce Stress Evaluator - A device that monitors the vocal quality of an
_ _
md1v1dual, producing a graphlike reading indicating a possible lie or
deception.
White-Collar Crime - Business-related or occupational crime, e.g.
embezzlement, computer crimes, bribery, pilferage, etc.
Wiremarks or Watermarks
Wiretapping - Intercepting and recording phone conversations by a
mechanical device without the consent of either party in the conversation.
Cheque-Writing Machines
Ball-Point Pen. Simulated Forgery. Traced Forgery. Principles in the
Identification of Handwriting. Photomicrography.
Photomacrography. Dating Problems. Ultra-Violet Photography.
Infra-Red Photography. Erasures

Protection and Preservation of Questioned Papers.

Obtaining Known Writing Specimens
Normal Handwritings

Highly Individualized Signatures. Since highly individualized signatures depart

from the normal handwriting strokes, forgery is difficult to detect because the primary
characteristics of the genuine signature are imitated together with the distinctive
characteristics of the signature. Since the standards used are the genuine signatures
which are the ones forged in the first place, the forger may be able to reflect the
distinctive features of the signature in the forged signature. Other methods of detection
other than appearance of the signature must therefore be availed of.

3. Handwriting Comparison:

Examination of Handwriting. Whenever science is applied to an investigation,

particularly for the purpose of identifying one specimen with another, the examination
consists of a thorough and painstaking analysis for the purpose of ascertaining the
normal characteristics of the specimen question. When these are matched with
specimens in a sufficient number of instances, and the possibility of forgery is
eliminated, then the identity is considered established.

Dissimilarities indicate non-identity or disguise. There may be cases where no

conclusion can be drawn. With handwriting, the examination is for the purpose of
discovering characteristics of the writer. If normal characteristics are similar in sufficient
number in two specimens, the conclusion may be reached that neither could have been
written by another person. In cases property prepared the expert can show
[mathematically that the probability of discovering a second individual who would
duplicate all the characteristics is so remote that further effort is not justified beyond
reasonable doubt.

Different handwriting experts use different classifications of characteristics and

make their examinations in different order. They all, however, consider what might be
termed a primary characteristics. The style of penmanship learned by each
generation as it attends school, particularly in the United States, is more or less uniform.
This uniformity, however, is not sufficient to warrant any positive conclusion as to a
person's age. It is one of the characteristics of his writing. This characteristic, of course,
may be discovered through the study of the slant of the letters, the manner in which the
pen is held, which is shown in the writing by the shading of the strokes, and the lines
showing where the point of the pen touched the paper.
 The shading is also useful in discovering the motions with which the letters are
formed; that is, whether an oval letter is made with a clockwise or counter-clockwise
motion. These motions are also taught as a part of a penmanship system. Although
these systems of penmanship employ certain mechanical motions of the pen,
individuality becomes apparent shortly after the students discontinue their studies in
penmanship. A few individuals who are engaged, by profession, in penmanship
work continue to use a specific system, and such persons are sometimes found to
write the system so perfectly that it is practically [impossible, word added] to tell
their handwritings apart. It is fortunate that there [not these] are but few of these
cases. Individuality creeps into handwriting through variations in certain letters
according to the fancies and habits of the individual. These habits or variations are, of
course, revealed in the examination of the writing.

In addition to the characteristics described, other normal or habitual usages of

the individual are sorted out and recorded in the handwriting examination. For instance,
the manner in which the "t 's JI are crossed, and "i's JI and ''j's JI are dotted, the shape
and shading of the periods, the methods of beginning and ending words, the hiatus (-)
between letters of words, the use of capitals, particularly the variations in the forms of
the capitals from the perfect style, and the formation of such letters as I, a, and m
which are used frequently - are those in which variations are immediately apparent.

Method of Writing. Microscopic examination indicates the method by which a

writing has been made. The crossing of one line with another becomes apparent and the
lifting of the pen is revealed. By this means forgeries through tracing are usually
discovered for the reason that the motions used in tracing writings are those used in
drawing rather than in normal writing. The tracer, in order to exactly cover the lines
which appear through the paper, makes the marks in the lines with a drawing stroke and
frequently crosses one line with another in a manner never employed in the original
writing which is being copied. Through photographic enlargements, especially with the
use of illuminations which is transmitted through the back of the paper these
divergences from the normal manner of writing the signatures or other words may be
clearly illustrated. The introduction of such photographs in evidence eliminates the
necessity for open testimony except to point out the appearance of the characteristics
mentioned.

Court Demonstration. After the decision as to the similarity of writing is made,

the expert prepares to demonstrate his conclusions in court. This is usually done by two
methods, the use of tracings and of photography. Particular letters or other features of
writing are compared by tracing them on tracing cloth or thin paper from the original
specimens. The tracings of one specimen are prepared on one side of a line and those
of another on the opposite side, and so arranged that similar letters or words are
opposite to each other

The diagram thus prepared illustrates a recurrent and normally habitual use of
particular forms and their similarities and dissimilarities with those of other writing. One
criticism of this method is that the tracing cannot be exactly like the original. The same
result is accomplished by means of photography through making enlarged pictures,
placing these pictures close to each other and rephotographing this chart. In most, if not
in all, cases the photographic or photostatic method is to be preferred. Magnifications of
from two to eight times will usually portray the departures from normal which the
expert wishes to display before the court in establishing the reasons for his conclusions.
The tremors in traced or studied forgeries will show in magnifications of five or less. On
long letters where disguise is suspected, it is in general more fruitful to begin the
analysis near the close of the letter as the individual usually settles down to a more
uniform style after the first dozen or so lines are written.

11/ustative Cases:

a. U. S. VS. SOFRONIO DE LA CRUZ, 28 Phil., 279

Facts:

The accused was charged with having threatened an old woman in a letter with
death or burning of her house unless she gave him P500.00. The letter (Exh. A) was
found in the fence around her house enclosed in an envelope addressed to Dolores
Cornel. Upon being searched, the Constabulary found inside the pocketbook of the
accused another envelope in which was also written the name Dolores Cornel.

Held:

One of the methods of proving the authenticity of writing is collation. The

comparison the court made with the other writing in the pocketbook proved to its
satisfaction that the threatening letter was written by the same person.

It is sufficient to compare the nature of the handwriting of the name "Dolores Corne!"
on the envelope (Exh. A) in order to appreciate at a glance complete similarity.

c. U.S vs. PROCESO BUSTOS, 45 Phil. 9.

Facts:

Proceso Bustos is charged for having fatally stabbed the deceased at a circus
performance. Among the proofs presented by prosecution is an ante mortem statement
of the deceased which has been reduced to writing by the Justice of the Peace and
signed by the deceased four hours after the encounter.

Held:

The signature of the deceased appearing in his ante mortem statement is held to
be authentic not only because of the manifest genuineness upon comparison with other
admittedly genuine signatures made by him, but also by the testimony of credible witness
who declare that they saw him sign the document

The authenticity of the questioned signature depends upon the general

characteristic semblance to admittedly genuine signatures, coupled with specific
differences due to the infinite variety of minute conditions controlling the muscles of the
writer at each separate effort in writing his name.

c. GO FAY vs. BANK OF THE PHILIPPINE ISLANDS, 45 Phil. 968.

Facts:

This is a civil suit filed by the plaintiff against the defendant Bank for five (5)
checks drawn in the name of the plaintiff and deducted from his bank account. Defendant
claims that the checks are genuine.

Held:

The characteristics alignment of a signature cannot be held to be a line

determined by some of its letters , which has not been fixed and constant inclination. Said
alignment must be a line determined by bases of some of the letter of the letter in
question, of the person whose signature is the subject of investigation, although in some
signatures it may have a different tendency, for the general alignment of a manuscript
tends to go up or down with respect to the horizontal sides of the paper according to the
position of the paper.

Although in many of the authentic signatures presented as evidence certain strokes

exhibit a determined position or tendency, said circumstances cannot be considered as a
characteristic of the signatures when it appears not to be fixed and constant, but was
abandoned at times, or the changes were due to circumstances easily accountable for.
such as the old tendency was due to lack of training or fluency in writing, and the last one
or ones to the speed required by the frequent use of the signature

(See also: Zaide vs. Court of Appeals (163 SCRA 705) where, if not for the OD
examiners, the fate of the Zaide spouses in the manipulative hands of the de Leon
spouses would have been sealed; Alcos vs. IAC (162 SCRA 823) where the Court of
Appeals initially questioned the veracity and validity of the findings of the OD examiners;
Director of Lands vs. CA ).

d. U. S. Cases:

An ex�ert witness may testify to the genuineness of a disputed writing, such as a

check,21 note2 , bill of sale, 23 receipt, 24 or letter, 25 by comparing it with a writing admitted
or proved to be genuine. 26 An expert's testimony may be utilized to determine the age of
a writing;27 to decipher an illegible writing;28 to determine whether certain words were
written before a paper was folded; 29 to discover an alteration; 30 to determine whether an
entire document was written by the same hand, with the same pen and ink, and at the
same time; 31 to ascertain the identity of the author; 32or to determine some other relevant
fact33

A lay witness may testify to the genuiness of a disputed writing if he observed it

being written; 34 if he observed the person In question sign other writings; 35 or if he was
familiar with the handwriting of the person in question 36 Such familiarity may have been
acquired from letters purporting to have come from the person in question in reply to
letters written to him by the witness; 37 from purportedly genuine writings which have
passed through the witness' hands in the usual course of business; 38 or from writings
which have come to the attention of the witness by virtue of his official position. 39

4. Inks and other writings

6. Pencil Writing.
7. Paper Examination.
8. Typewriting.
9. Water Marks.
Principle.
 10. Age of Writing.
11. Partially Obliterated Writing.
12. Deciphering Charred Records

PART IV

EVIDENTIARY VALUE OF FORENSIC EVIDENCE

AND
RESULTS OF POLYGRAPH EXAMINATION

"You can lead a jury to the truth, but you can't make them
believe it. Physical evidence cannot be intimidated. It does not
forget. It doesn't get excited at the moment something is
happening --- like people do. It sits there and waits to be detected,
preserved, evaluated, and explained. This is what physical
evidence is all about. In the course of a trial, defense and
prosecuting attorneys may lie, witnesses may lie, the defendant
certainly may lie. Even the judge may lie. Only the evidence never
lies." (Herbert Leon MacDone/1 40 in The Evidence Never Lies Dell
Publishing Co., New York, 1984 Ed.).

I. IMPORTANCE OF PRESERVING PHYSICAL EVIDENCE:

When physical evidence is presented in court the forensic examination of which

connects an accused to a crime, a defense counsel worth his salt will automatically
determine for himself two things: (1) Was the physical evidence taken from the crime
scene and, if so, was its location recorded, and its integrity preserved?; and (2) Can its
chain of custody be traced from the time it was taken from the crime scene up to the
time it reached the courtroom?

The cardinal rule therefore or any investigating officer who is the first to arrive at
the scene of the crime is: "eyes open, mouth shut, and hands in pockets" and wait for
the SOCO (scene-of-crime officer). It is possible that even then significant items in the
scene may have already been un-intentionally disturbed or displaced by others.

There are two kinds of evidential material. One type is individual, and unique to
the crime: pieces of a broken object, tool marks, bullets, or fingerprints, for example. The
other is identifiable, but not unique: fibers from a piece of clothing, fragments or paint or
glass, etc. The latter are valuable in building a case, and may lead to the criminal, but do
not provide proof. Whatever the nature of the evidence, however, it is essential that the
"chain of custody" is recorded. Different items of evidence may pass from hand to
hand, from one police officer to another, and on to various experts for laboratory
examination. Each move must be logged and signed for. If this is not done, the defense
may justifiably question the validity of the evidence.

Ill. WHEN THE EVIDENCE IS NOT PRESERVED OR THE CHAIN OF

CUSTODY IN DOUBT:

When the evidence is not preserved or the chain of custody is put in doubt, the
.
result 1s confusion in the investigation and. ultimately, a disaster to the prosecution,

Two cases come to mind. One, in the United States, is the Simpson case, and
the other. in the Philippines, is the Ocampo case.

A. The OJ (Orenthal James) Simpson Case.

This is a case where the evidence was not preserved and even perceived to
have been planted, and the chain of custody was put in doubt.

The trial of O.J. Simpson, for the murder of his estranged wife Nicole and her
young friend, a waiter named Ronald Goldman, on June 12, 1994, revealed how a crime
scene investigation can be mishandled, and the subsequent chain-of-custody
requirements ignored.

When OJ Simpson was set free millions of Americans bore the anguish and
disillusionment over the criminal justice system in the United States. Commentators
said that justice was cheated because of a racist cop, shameless defense lawyers,
a starstruck judge who invited celebrities into his chamber and a dysfunctional
jury.

Lawyers who are enthusiasts of the numbers game will find these numbers in the
O.J. trial very interesting: Days Simpson spent in jail (474); Days consumed in jury
selection (372); Days jurors were sequestered (266); Length of opening statements (4
days);Length of closing arguments (4 days); Length of jury deliberations (less than 4
hours); Average age of juror (43); Number of jurors picked (12 plus 12 alternates);
Number of jurors dismissed (10); Witnesses (defense, 54; prosecution, 72); Days of
testimony (defense, 34; prosecution, 99); Exhibits presented during testimony (defense,
369; prosecution, 488); Number of motions filed (433, no breakdown available); Number
of attorneys who presented evidence in court (defense, 11;prosecution, 9); Number of
times judge pulled plug on television (2); Cost (estimated $9 million for Los Angeles
County, including costs for court and prosecution; defense figures not available); Amount
earned by each of the 12 jurors and two alternates ($1,330 at $5 a day for time of
sequestration); Length of official court transcript (more than 50,000 pages); Number of
media credentials issued (more than 1,000); Number of telephone lines installed in press
room (250); Seating capacity in courtroom (80); Fines imposed on defense ($3,000);
Fines imposed on prosecution ($850); Fines imposed on others ($1,800).

B. TheJudge Martin A. Ocampo (MAO) Case:

Judge Martin A. Ocampo was a Regional Trial Court Judge of Region VII
assigned in Cebu City. He was a respected magistrate. He tried many controversial
cases one of which was the case of murder against children of affluent families because
of the disappearance of the Chiong sisters. Although the bodies were never found, the
accused were convicted most of them for life imprisonment.

On October 7, 1999, Judge Ocampo was found dead inside Room 502 of the
Waterfront Airport Hotel in Lapulapu City, Cebu. The hotel management ordered the
night latch, which was locked from the inside, to be forced open, when no one
responded inside the room. The door lock was opened with the hotel key. Inside, the
Judge was sitting on a chair. Members of the Lapulapu rescue team and policemen
arrived in succession.

In any event, the following facts emerged. The Judge died probably a day before
his body was found. There was a bullet wound in his head. He had hematoma on both
eyes and contusions on the left portion of the chest. He had shallow to deep incised
wounds in both wrists and ankles of his feet. There was a trail of blood from the comfort
room to the chair where he was; also blood on some parts of the curtains. A razor blade
with blood was inside the comfort room with blood stains in the lavatory. There was a .25
Caliber Pistol atop a dresser which belonged to the Judge, and a bullet was recovered.
There was a long handwritten suicide note - wherein the writer wrote that he was tired
and he had no regrets about deciding to end his life. It was confirmed that the room
was locked from the inside.

The NBI conducted an official investigation. From that moment on, the
controversy started because the NBI Agents assigned to the case were already giving
unofficial statements that the death was a case of suicide even before an autopsy was
conducted, and even before a ballistics examination was made to determine whether the
bullet found was fired from the firearm recovered, and also even before a document
examiner could determine whether the long suicide note was written by Judge Ocampo.
What was worse, the theory of the NBI investigators appeared to rest on their statement
that there was no foul play because the room was locked from the inside with a device (a
night latch) that was impossible to lock from the outside the room.

Feeling aggrieved, the Integrated Bar of the Philippines (IBP) Cebu City Chapter
through its President Pedro Rosito, and former assistant provincial prosecutor Gloria
Latimosa-Dalawampu, one of my brilliant students of law, supported by a doubtful public,
questioned the statements of the NBI. Local editorials attacked their spur-of-the-
moment conclusions.

It was at this point, that I and another criminologist conducted our own
investigation.

We adopted instead the theory of suicide which was more consistent with the
facts. We also realized there was no other theory left. It is either suicide or murder but
no in-between. I prepared a 17-page report of my findings and gave a copy to IBP Cebu
City Chapter and the local dailies. I castigated the NBI for the preposterous statements
of its agents that the night latch could not be locked from the outside, but I predicted that
the NBI will come out with a positive result on the examination of the bullet and the
firearm, and positive result on the handwriting in the suicide note. My predictions came
true. My conclusion: NO SCENARIO ON FOUL PLAY IS BELIEVABLE. THE SUICIDE
THEORY OF THE NBI STANDS. A complete write-up of my report was published in the
front page of Sun-Star Daily (Cebu City) on December 1, 1999 followed by another
coverage on December 3, 1999. I was totally convinced that the Judge committed
suicide. But I needed something as a clincher. I searched for old books in my library and
I found the statement I was looking for in the book of Sherlock Holmes. It said:

When you've eliminated the impossible,

Whatever remains, however improbable,
Must be the truth.
Sherlock Holmes, The Sign of Four
Sir Arthur Conan Doyle
 In my report I told the IBP that the inconsistencies against the theory of suicide
can be explained. The gun which was far from the Judge was because the crime scene
was not preserved. Simple explanation - somebody transferred the location of the gun.
Somebody will be administratively investigated because of this. The incised wounds on
the wrists and ankles could be explained as hesitation wounds inflicted usually by a
suicide. The hematoma and the contusion could be a reaction to the medication he was
taking or some other explanation. But the bottomline is that the facts and the physical
evidences could not support any murder theory.

But the IBP was not convinced, and instead demanded exhumation to find out if
the Judge had broken bones which would mean that he was assaulted before he died.
Before the exhumation was done, the NBI made another startling revelation - that during
the autopsy some bones of the Judge were sawed off as part of the normal procedure to
get to some internal parts. The editorials again screamed against the NBI for withholding
this information.

Two months after he was buried Judge Ocampo was exhumed with so much
fanfare, there was even a helicopter hovering above. If he had his way, I am sure the
Judge would have objected. No member of the family was present. Dr. Raquel Fortun,
the country's lone forensic pathologist assisted by PNP medico-legal officer Jesus Cerna
performed the re-autopsy with 56 x-rays taken by radiologist Dr. Warfe Engracia, in
thirteen (13) hours. President Rosito and lawyer Dalawampu of the IBP were there,
including Senator Rene Cayetano accompanied by forensic experts, Dr. Anastacio
Rosete and Benito Molino, and UP anthropology professor Jerome Bailen as skeptical
observers.

Contrary to what the NBI said, Judge Ocampo had, after all, no broken bones -
no bone was sawed off. Why the NB/ give an advance statement to the contrary did
not make sense? Forensic anthropologist Jerome Bailen, observer, also commented that
the earlier report of Dr. Rene Cam, medico-legal officer of the NBI Central Visayas
Regional Office, that the trajectory of the bullet was from left to right, was wrong. The re-
autopsy showed that the trajectory was from right to left.

However, Dr. Maximo Reyes head of the NBI Medico-Legal Section said that the
results of the re-autopsy confirmed the NBl's earlier findings that the Judge committed
suicide. Well and good. But why did the NBI people say so many things which were all
proven wrong? Naturally the public and the IBP began to suspect a cover-up, when in
truth there was no such thing. The only explanation I could think of was that the NBI was
engaged in self-flagellation.

This case caused a lot of confusion resulting in a muddled investigation

because the crime scene was not preserved. In fact, it was terribly disturbed. Much
later, a policeman who was asked to explain even admitted that he used the comfort
room to defecate. Others also used it for other purposes.

As a result, it became difficult to determine whether Judge Ocampo committed

suicide or was a victim of foul play. Why? Because whichever theory was adopted, there
was always a physical evidence which contradicts it. If one says suicide, then how come
that the .25 Cal. Pistol was in the dresser far away from where the body was found. If
you say foul play, then how could it have happened when the room was locked from the
inside.

IV. ADMISSIBILITY OF EXPERT TESTIMONY:

 "No one will deny that the law should in sc,me way
effectively use expert knowledge wherever it wilf aid in
settlifli disputes. The only question is how it can do so
1
best.' (Judge Learned Hand, 1901).

Three things must concur to justify the admission of the testimony of an expert
witness.

"First, the subject under examination must be one that requires that the court has
the aid of knowledge or experience such as men not especially skilled do not have, and
such therefore as cannot be obtained from ordinary witnesses.

Second, the witness called as expert must possess the knowledge, skill, or
experience needed to inform the court in the particular case under consideration. Upon
such a question such a witness may be called, and may testify not only to facts, but to
his conclusions from the facts, because the court is without the knowledge necessary to
enable it to draw the conclusions for itself without aid.

As a general rule, the opinion of experts is not received if all the facts can be
ascertained and made intelligible to the court, or if it is such as men in general are
capable of comprehending. The expert evidence is not confined to classified and special
professions, but is admissible wherever peculiar skill and judgment applied to a
particular subject are required to explain results by tracing them to their causes.

Third, like other evidence, expert testimony is not admissible as to a matter not in
issue...

Ill. THE RULES OF COURT:

A. Opinion of Expert Witness (previously titled Expert Evidence). Rule 130,

Sec. 49 of the Rules of Court provides: The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence. The previous rule (Rule 130, Sec. 43) states: The opinion of a
witness regarding a question of science, art or trade, when he is skilled therein, may be
received in evidence.

B. The Opinion Rule:

(1) Rule - opinion of witness not admissible (R130S48). The opinion of a

witness is not admissible, except as indicated in the following
sections.

(2) Exception (Opinion Evidence/R130S49)

(a) Opinion of Expert Witness:

i. Experts and interpreters to be used in explaining certain

writings - R130S16. When the characters in which an
instrument is written are difficu�t to be deciphered, or
the language is not understood by the court, the
I
evidence of persons skilled in deciphering the
characters, or who understands the language, is
 admissible to declare the characters or the meaning of
the language. (formerly R130S14).
ii. Expert witness on science, art or trade - R130S43 (Old
Rule, see above)..
i. Expert witness on unwritten foreign law - R140S45(OId Rule).
The oral testimony of witnesses, skilled therein, is admissible
as evidence of the unwritten law of a foreign country, as are
also printed and published books of reports of decision of the
courts of the foreign country, if proved to be commonly
admitted in such courts.

(b) Opinion of ordinarywitnesses-R130S50. The opinion of a

witness for which proper basis is given, may be received in
evidence regarding- (a) The identity of a person about whom he
has adequate knowledge; (b) A handwriting with which he has
sufficient familiarity; and (c) The mental sanity of a person with
whom he is sufficiently acquainted. The witness may also testify
on his impressions of the emotion, behavior, condition or
appearance of a person. Note: The last sentence do not require that
proper basis be first given because it is made into a separate
paragraph. The old rule (R130S44) reads as follows: The opinion of a
witness regarding the identity or handwriting of a person, when he has
knowledge of the person or handwriting; the opinion of a subscribing
witness to a writing, the validity of which is in dispute, respecting the
mental sanity of the signer; and the opinion of an intimate
acquaintance respecting the mental sanity of a person, the reason for
the opinion being given, may be received as evidence. This provision
covers:
i. Identity of a person
ii. Handwriting of a person
iii. By subscribing witness, as to mental sanity of signer
iv. By intimate acquaintance, as to mental sanity of a
person
Note: reason for opinion must be given.

C. Qualification and Disqualification of Witnesses:

(1) Qualification - R130S20. Except as provided in the next

succeeding section, all persons who can perceive, and perceiving,
can make known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwise provided by law, shall not be
a ground for disqualification. Note: The clause "having organs of
sense" after "all persons" was deleted from R130S18. This is the old
second sentence before it was rephrased: Neither parties nor other
persons interested in the outcome of a case shall be excluded; nor those
who have been convicted of crime; nor any person on account of his
opinion on matters of religious belief.

(2) Disqualifications:

(a) By reason of mental incapacity or immaturity- R130S21

(b) By reason of marriage - R130S22
(c} By reason of death or insanity of adverse party - R130S23
 (d) Privileged communication (Husband and wife; Attorney and Client;
Doctor and Patient; Priest and Penitent; Communications made in
official confidence) R 130S24
(e) Parental and filial privilege - R130S25

IV. The Lie Detector Machine: The Polygraph

A. Introduction:

Imagine a trial in the time of the Chinese Emperor Hwang Ti, more than 2500
years before the birth of Christ. At Hankow, the tailor Wang has been accused of
murdering the tax collector Li Chang. As Wang tells his story before his judges, a
learned-looking old man holds his hand on Wang's heart. Wang tells his story, insisting
his innocence, but the old man shakes his head. "He lies," the old man whispers. The
trial of Wang the tailor is over. He is guilty and the penalty is death.

B. How the Polygraph Works:

The polygraph is a scientific instrument which measures simultaneously the

respiration of the individual, the electric resistance of his skin, and his blood pressure.
The Reid Polygraph, for instance, registers key body reactions based on (1) blood
pressure; (2) arm movements; (3) skin reaction; (4) breathing; and (5) leg
movements.

The polygraph should be used only for investigative purposes and only if the
subject executes a waiver. I fear that if we let down our bars, if the polygraph ever
becomes accepted as an official instrument of inquisition, if suspects are required to take
a polygraph test, or if polygraph examiners are permitted to go into court to testify as to
their findings, a whole flock of "experts" will spring up like mushrooms. Most of them will
be men who have neither the ability to reach scientific conclusions, nor the integrity to
withstand the numerous temptations with which a polygraph examiner is subjected to.

B. Legality:

The use of a polygraph machine is illegal in England.

The actual legal status of its use is not uniform throughout the United States. But
we have this decision in Frye v. United States42 where the court decided the admissibility
of scientific evidence based upon the "general acceptance" test. The court considered
the polygraph test results as inadmissible in a remarkably brief opinion where it held
that:

"Just when a scientific principle or discovery crosses the line

between the experimental and demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential force of the principle must
be recognized, and while courts will go a long way in admitting expert
testimony deduced from a well-recognized scientific principle or
discovery, the thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in
which it belongs." (Emphasis and underscoring supplied).
 The court then excluded the proposed expert evidence because the polygraph
had "not yet gained such standing and scientific recognition among physiological and
psychological authorities."

In the Philippines, the polygraph is still a purely police investigative devise.

However, we had occasion to use this equipment extensively when our former law and
criminalistics office43 investigated bank frauds in Metro Manila. Normally, officers and
employees of the bank concerned voluntarily submit to such an examination by
executing a formal waiver which we prepare. We also used this equipment again on a
purely voluntary basis as part of the screening of prospective employees of banking
institutions. We utilized the services of active or retired polygraph examiners of the
National Bureau of Investigation or the Philippine National Police using the equipment of
the late Teodulo C. Natividad. - a noted criminologist and dean of the Philippine College
of Criminology.

It must be emphasized that polygraph examination is effective only with relatively

normal human beings. A pathological liar actually believes his own lies and shows no
emotional reaction to the lie. A lie detector is also effective only in the hands of a skilled
and intelligent operator.

APPENDICES
REFERENCE MATERIALS:

1. Forensic Ballistics:

The Identification of Firearms & Forensic Ballistics by Major Sir Geral Burrard,
1951 Edition
a. Firearms Investigation, Identification and
Evidence by Hatcher, Jury and Weller, 1957 Edition
b. The Identification of Firearms by Jack Disbrow Gunther & Charles 0.
Gunther, 1935 Edition
c. Textbook of Firearms Investigation, Identification and Evidence by
Julian G. Hatcher, 1935 Edition.

2. Dactyloscopy (Fingerprinting):

a. The Science of Fingerprints, Federal Bureau of Investigation (FBI)

Pamphlet
b. Fingerprints Never Lie by Cherill

3, Questioned Documents:

a. Questioned Documents by Albert S. Osborn, Second Edition (1943)

b .Forensic Chemistry and Scientific Criminal Investigation

by Lucas, 1946 Edition

4. The Lie Detector:

 Science Against Crime by Weiss

5. Legal & Technical References

AMERICAN JURISPRUDENCE TRIALS/Practi , Strategy & Controls
Phitoetogbryaphs
(C Volu
, cmrim
e inaanldcaP
seag
s,e,preep.ga.ratio
_ n anAdm se,
.' r T3ri:3a3
ls5; _
civi),l ca tsheuss,:
preparation and use, 3:335; Expert Witnes : s (preparing, 2:585;

scientific, selecting, 2:293; selecting, 2:585; tee. J1ical, locating, 2:293);

ARTICLES: Locating Scientific and Technical �perts by Paul L. Kirk,
2:293; Selecting and Preparing Expert Witne : es by Harry A. Gair,
2:585; Preparing and Using Photographs in ivil Cases by S. G.
Ehrlich, 3:1; Preparing and Using Photograph · jin Crimin Cases by by
Leland V. Jones, 3:335; Preparing and Using perimental Evidence
Grant B. Cooper, 3:427; Excluding Illegally btained Evidence by
Barnard A. Berkman and Gerald S. Gold, 5:331; !�traducing and Marking
Exhibits by Micha Catalano, 5:5 3; Using BlaCfkboards and Relateg
Visual Aids by Melvin M. Belli, 5:577;
Use
PhilipofHEr
.J
Cineers
orboy, and 6:555Exper
; Matrskiby
ng and Presevr ing.,e Record - Objections
by Michael Catalano, 6:605; MODEL TRIALS: H micide by Gregoyr S.
Stout, 7:477; Re Estate Brokers' Comm
issionsi·,.. y Milton Zerin, 9:513;
Unfair Election Campaign Practices, 15:1. r
·
AMERICAN JURISPRUDENCE PROOF OF FA ·TS ANNOTATED (cite
by Volume and Page, e.g. _ AmJur Por o�.: of Facts ) _ , thus:
Alteration of Instruments, 1 :479; Ancient Doc ; . ents, 1 :523; Autopsy,
2:261; Best and Secondayr Evidence, 2:246; Bio d Tests, 2:585;
Types
3:405;
Blood Damages 3:491; Death 4:1; Death, Action for J 4:71; Fingerprints
5:77; Firearms
2:607; Identification,Opinion 3:161; Conviction
Causation-Medical 5: 113; Footprintf,
of Crime 5:217;
Hair, 5:569;
Fraud, 5:363; Hypothetical Questions 6:159; Ulfe Expectancy 7:215;
Medical Books as Used in Cross-Examinatio! 7:6 45; Metal Failures
8:127; Motion Pictures as Evidence 8:179; Ped i ree 9:1; Photo graphs
as Evidence 9:147; Restoration of Markings on rI tal 10:307; Skidmarks
and Stopping Distances 10:661; ldentifi cati of Seminal Fluids
112
2::6
4 3;
31 3; QTueaxlifi
tilecatioIn
denotifficTaotioxnicoloagnis
d t 1C loth
2:6 2f� i' Arse Ha
nzicardPsois13on:6
i4n9g;
Qualifications of Criminalist 14:319; Lost 'nd Destroyed W ills
14:531; Id eni
t fi a
ctio n o f Su b sat n c e s b y Ne utr .
' n A ctiva tio n A n alys i s
15: 115; Malpractice --Blood Incompatibility in the ' ewborn 15: 169; Death

Certification 15:711; Botulism Poisoning 16:233 i Computer Print-Outs

as Evidence 16:273; Qualification of Exa iner of Questioned
Do
cuments 16:481; Charre
d Documents 16:66 ; Proof of Lost Earning
ape Recordings as Capacity and of Future Expenses 16::701;
Evidenc. e 17:1; Questioned Handwriting 17 • 07; Identification of
Paper 18:711.
Wharton's Criminal Evidence, 11thEdition
Trial Technique & Practice Court by Francisco, 1
Criminal Evidence by Francisco, 1947 Edition

6. General References
iminal Investigation b Chas. W. Fricks, 5 th Edi n
1
Crime Investigation, Physical Evidence and the P 1ice Laboratory by Paul

Kirk, 1953 Edition

An Introduction to Tool Marks, Firearms and the riagraph by John E.
 Davis, 1958 Edition
Homicide Investigation by Le Moyne Snyder, 1959 Edition
Science Catches the Criminal by Robinson
Criminal Investigation by Hans Gross
Criminal Investigation Handbook by Jeter L. Williamson, 1958 Edition
The Adm_inistration of Justice by Paul B. Weston and Kenneth M. Wells
1967 Edition by Prentice-Hall, Inc.
Law and the Administration of Justice by Vernon Rich, 1979 Edition
Convicting the Innocent by Professor Edwin M. Borchard, 1932 Edition
The Warren Commission Report on the President Kennedy
Assassination, New York Times, 1964 Edition
Various Pamphlets/Law Enforcement Bulletin, FBI, USA
The Court of Last Resort by Erle Stanley Gardner, 1954 Edition
The Evidence Never Lies "7 The Casebook of a Modern Sherlock Holmes
by Alfred Allan Lewis with Herbert Leon MacDonell, 1984 Edition
Proficiency teating Quality auurance
and Quality control progama?
OK? RURforthia

Yes/No

Sample identification
Pre-conditions met? procedure?
Pre-conditions for
probe, eneymes etc met?
Sample condition?
Ye!lli'IO

Control conditions Positive controlreault?

satisfied? Negative control nault?
MWmarkera?

Yes/No

Pattern mat.ch?
Profiles meet Dupliut.ee agrm?
standard criteria? Incons1stenciea?
Scoring method?

Yes/NO

Adequacy of Population?
statistics?

Ieiii'nO

Probability of Relative chance of

random random inclusion............... %
inclusion?
Identification Index: ............. to 1
Quality assurance schemes
not operating

Lack of agreement on
methodology
Inadequately tested strategies
• probe behaviour
Unknown behaviour of DNA
in exposed or degraded
tissue samples

Inadequate controls

Disputed band scoring

Dissimilarity attributed to
"Missing band"

Dissimilarity attributed to
"Band shifts"

Paucity of data on general

population and on minority
groups

Misunderstood probability
estimates

Scheme: Potential dangers In DNA profile tests

 Potential Sources of Artifacts and
Errors in generating a 'DNA Profile'

Ken Reed
AB. Technology Pty Limited
cl- Dept of Biochemistry
Australian National University, Canberra

fn7 iscrepancies between independent analyses of a particular sample may be due

� variations in any of the fo1lowing procedural details. Some do not havea
to
significant effect on the validity of properly controlled side-by-side comparisons;
many more could be monitored routinely by analysis of internal 'non-variable'
control sequences.
These points are raised to underline: the need for standardised, controlled
procedures; the need for accreditation and auditing; the desirability of providing full
technical details to counsel. They should not be construed as arguments against the
adoption of evidence provided by 'DNA Profiling' in criminal and civil cases. On the
contrary, it is hoped that their recognition will expedite the routine adoption of sound
DNA-based evidence.
1. Tissue Sample
ongm
quantity
quality
storage conditions
human? (many probes react with DNA of many different species)
continuity

2. DNA Isolation
method
reagent quality (e.g. phenol-induced damage?)
DNA quality (degraded? denatured?)
DNA storage conditions

3. DNA Digestion
incomplete?
excessive? ('star' activity)
4. Electrophoreses of DNA

gel type (agarose, polyacrylamide, other)

gel format (vertical, horizontal - 'submarine' can lose small fragments)
buffer type, ionic strength, pH
gel concentration
overloading? similar loading for all samples? critical measurement is
amount of DNA per cross-sectional area of gel track, affected by
gel thickness
width of sample loading wells
depth of sample loading wells (if horizontal gel)
amount and concentration of DNA loaded
field strength
uniform migration rate for all samples?

A photograph of the gel after electrophoresis (stained to reveal DNA) should be

included in evidence.

5. Transfer of DNA to Membrane

membrane type, manufacturer and batch

gel pre-treatment
transfer solution
transfer method
transfer time
6. Hybridisation

buffer type, ionic strength, pH

accelerator?
denaturants?
'carrier' DNA?
volume
temperature
duration
physical method used (details)
probe
origin and information re probe sequence
is it a recombinant probe?
DNA or RNA?
single or double stranded?
radioactive or non-radioactive label? (specifics)
labelling method
- specific activity and concentration
is this a re-probe of a previously used (stripped) membrane?

7. Washing
buffer type, ionic strength, pH
volume
temperature
duration
number of washes under each set of conditions
8. Autoradiography
(If non-radioactive probes are used this is redundant, but attention must then be
given to the additional steps involved in developing the profile pattern).
X-ray film
- manufacturer and batch
- type (particularly as it affects speed of image development)
exposure time
exposure temperature
intensifying screen(s)?
texta touch up?
It is recommended that evidence for each comparison set includes two
autoradiograph exposures differing markedly in sensitivity; the autoradiographs
should be available for examination and confirmation of the accuracy of
photographic records.
9. Photography

(less significant if original autoradiographs can be examined)

photographic and development conditions

- filters? (particularly in photography of colour (non-radioactive) signals)
- evidence of differential enhancement?
10. Interpretation
relative weighting given to matches of large, medium and small bands - far
less weight should be given to bands oflow or high mobility
criteria used to establish/eliminate matches
population base used in comparisons
lies, damned lies, statistics