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Friday, December 6, 2013

Israel's Supreme Court Rules Footprints are Problematic Evidence

Roman Zadorov

A Supreme Court ruling this week could aid the defense of Roman Zadorov, a former school security guard who is in prison for the 2006 murder of 13-year-old Tair Rada, but who is now being retried.

Zadorov was convicted in 2010 partly on the basis of footprints found at the crime scene that seemed to match his shoes. But the Supreme Court, ruling in an unrelated case on Tuesday, said that such prints, while not inadmissible as evidence, are problematic and of limited value – a conclusion that has become increasingly common worldwide in recent years.

The ruling dealt with the case of Nikolai Metzgura, 67, who was convicted by a district court of killing his former boyfriend at a building site in Jaffa. That conviction was based mainly on circumstantial evidence, including 11 shoeprints found at the crime scene on the dead man’s shirt and in the blood near his body. 

An expert witness for the prosecution, police Superintendent Yaron Shor, found similarities between these footprints and Metzgura’s shoes.

Shoeprint matches are generally rated on a seven-level scale: “no match, “can’t be ruled out,” “possible,” “very possible,” “high probability,” “very high probability” and “definite.” Of the 11 shoeprints at this crime scene, 10 were dubbed “possible” matches for Metzgura’s shoes and one was rated “very possible.”

Metzgura appealed his conviction via attorney Elkana Laist of the Public Defender’s Office. The appeal argued that shoeprints shouldn’t be admissible as evidence, presenting various scientific studies in support of this position.

On Tuesday, Supreme Court Justices Neal Hendel, Salim Joubran and Yoram Danziger, while not going so far as to rule that shoeprints should be inadmissible as evidence, did hold that they tended to be questionable as evidence, and of no value whatsoever in Metzgura’s case.

Writing the decision for the court, Hendel said that unlike fingerprint or DNA matches, there is no scientific basis for matching shoeprints. He also criticized the seven-level scale as being highly subjective.

“There is no uniformity in describing the level of correspondence [between two given shoeprints], and therefore, it’s not clear what the significance of each of these levels is or how one should determine that the correspondence is on this or that level,” he wrote. Hendel added that these verbal definitions aren’t based on any statistical data. “It seems we must say this evidence is limited,” he wrote.

Warning that reliance on such inexact evidence could have “undesirable consequences,” the justice continued: “In a technological age, one would expect an expert’s evidence – especially in a criminal trial – to be more scientific and more conclusive.”

Two cases very similar

The court nevertheless upheld Metzgura’s conviction, citing other grounds. But its conclusions regarding the limited evidentiary value of shoeprints could clearly have implications for Zadorov’s case, which resembles Metzgura’s in many ways. It should be noted that the same shoeprint expert witness, Superintendent Yaron Shor, testified for the prosecution in both cases.

In Zadorov’s trial, Shor concluded that three shoeprints found at the crime scene – Rada’s school in the Golan Heights town of Katzrin – definitely weren’t Zadorov’s. But he said that other prints found in the blood on Rada’s jeans did match Zadorov’s shoes.

Zadorov, who is also being represented by Laist, had appealed his conviction to the Supreme Court, but in an unusual ruling the justices ordered the case be returned to Nazareth District Court so new evidence could be considered. Laist had presented the Supreme Court with an opinion from an American expert who, in contrast to Shor, concluded that the marks in the blood on Rada’s jeans weren’t shoeprints at all. Nazareth District Court is supposed to issue its new verdict in another two weeks.

Hendel was aware of the implications that the Metzgura ruling could have for Zadorov’s case, and therefore stressed that his conclusion that the shoeprints had no evidentiary value whatsoever was specific to Metzgura’s case, rather than a general rule.

“It’s clear that my position as presented in this case is likely to have some implications for other cases,” he wrote. “But it’s not inconceivable that the analysis above could provide an impetus for developing or improving the scientific evidence in question in a way that would better meet the relevant criteria.”

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