Seventh Circuit Notes Other Circuits Also Admitting Shoe Print Expert Testimony

In bank robbery trial, admitting under FRE 702 expert FBI analyst testimony that a shoe worn by the defendant at the time of his arrest had left a partial impression on a piece of paper at the bank counter where the defendant allegedly jumped during the charged robbery, admitting expert testimony based on use of a "precise four-step methodology" employed by over 30 other countries, in United States v. Smith, 697 F.3d 625 (7th Cir. Oct. 4, 2012) (Nos. 11-2128, 11-2398)

The Federal Evidence Blog has assessed the reception of shoe print testimony for purposes of identification. In a 2009 blog essay, "Shoeprint Expert Testimony Satisfied Daubert Reliability Factors," we noted a Third Circuit finding that shoe print evidence can be sufficiently reliable, even if there is a "lack of precision in a shoeprint." This lack of precision did not render the evidence inadmissible and seemed to go only to the weight of the evidence. A recent Seventh Circuit Case examines some of the same difficulties in admitting shoe print expert evidence.

In the Seventh Circuit case, defendant Smith was arrested with others and charged with bank robbery and possession of a firearm in furtherance of a crime of violence. As recounted by a cooperating co-defendant's testimony at trial, after defendant's entry into the bank the defendant "vaulted over the [teller] counter, leaving a shoe print on a piece of paper" as he did so. At the time of the robbery, the defendants had been under FBI surveillance involving a series of robberies occurring in the neighborhood. The agents had been able to track the defendant's movements fleeing from the bank and ultimately apprehended the defendants. Upon his trial for the robbery, the defendant was convicted and he appealed, contending that the trial court improperly admitted identification testimony by an FBI shoe analyst. That analyst explained to the court the science of tying shoes (the ones in which the defendant was arrested) with the shoe print the bank robber had left from vaulting over the teller counter.

As part of his case, the defendant sought to prevent the admission of identification evidence based on analysis of his shoes with shoe marks impressions left by the perpetrators of the robbery. In conducting a Daubert hearing on the admission of this evidence, the circuit carefully noted the protocol used by the analyst as set forth in the witness's testimony: The expert relied on a "four-step methodology" to compare footprints with a particular suspect's shoes. This methodology involved considering a chain of four succeeding questions:

  1. Print Assessment: [I]f there was sufficient detail in the questioned impression (i.e., the one recovered from the bank) and then he compared the design (e.g., a series of diamonds or circles) of the questioned impression on the outsole (or bottom of the shoe) with the design on the outsole of the known shoes.
  2. Relative Size: If the design of the questioned impression and that of the known shoe were the same, he determined if the physical sizes (i.e., the outside dimensions, length, and width) and spatial relationship of the design features corresponded;
  3. Wear Features: If the design and size were the same ...analy[ze] whether there were wear features in the questioned impression (e.g., portion of design elements such as a logo worn off) that were also in the known shoe; and
  4. Identifying Characteristics: If the design and size were the same and there was wear correspondence, he looked for any identifying characteristics on the questioned impression and the known shoe, such as rocks or glass or nicks, cuts, or gouges that may appear on the bottoms of the shoes.
Smith, 697 F.3d at 633.

The description of this standard protocol was only part of the FBI expert's Daubert qualification. The expert provided additional information about the acceptance of the methodology in the field, an assessment of the facts used in the witness's analysis, and the application of "the principles and methods reliably to the facts of the case." The defendant contended that the proffered expert testimony on shoe identification "does not meet the demands of Rule 702." The Seventh Circuit took the opportunity to explain why such expert opinion testimony could be admitted:

[T]oday [we] reaffirm our holding in" United States v. Allen, 390 F.3d 944 949-50 (7th Cir. 2004), which "affirmed the admission of footprint analysis testimony where the expert testified that “accurate comparisons require a trained eye; the techniques for shoe-print identification are generally accepted in the forensic community; and the methodologies are subject to peer review.” Allen, 390 F.3d at 949–50. In this case, FBI Examiner Smith testified that the four-step approach he used is used by forensic laboratories throughout the United States, in Canada, and in thirty other countries. He also explained that there have been peer reviews of the methodology he used published in several books and articles. And FBI Examiner Smith explained in detail how he applied this methodology to the footprint impressions recovered at the bank. Thus, Smith's testimony was based “upon sufficient facts,” was the “product of reliable principles and methods,” and his testimony established that he “applied the principles and methods reliably to the facts of the case.” Accordingly, consistent with our holding in Allen, we conclude that the district court did not abuse its discretion in admitting FBI Examiner Smith's expert testimony regarding the shoe print evidence.
Smith, 697 F.3d at 634-35.

The First Circuit noted that a number of other circuits seemed to agree with this approach to foot ware expert testimony, citing the following case examples of the broad agreement:


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