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Case Study Law Of Evidence In South


Barefoot-Insole-Impression Evidence: The Curious Case of Mr. Jones's Feet

By Ben Lewis


Jeffrey Louis Jones has two very peculiar feet, so said the State of South Carolina. Mr. Jones’s feet are so remarkable that they have twice caused him to be sentenced to death. On both occasions, Mr. Jones’s convictions were overturned by the South Carolina Supreme Court, due in part to concerns over the reliability of barefoot-insole-impression evidence. Proponents of barefoot-insole-impression evidence maintain that individuals can leave different impressions on the insoles of the shoes they wear and that it is possible to determine, to an acceptable degree of certainty, who has primarily worn a particular pair of shoes by comparing the insoles of the shoes with the feet of the suspected wearer.


It is important to distinguish barefoot-insole-impression evidence from shoe-print-identification evidence. The former concerns impressions left by a suspect’s feet and toes inside a shoe or boot, whereas the latter concerns marks left by the exterior sole of the shoe or boot on the ground.[1] Shoe-print-identification evidence is deemed more reliable than barefoot-insole-impression evidence and is generally admissible.[2] There are only two barefoot-insole-impression-evidence experts in North America: Robert Kennedy and Bill Bodziak. Both became involved in Mr. Jones’s case.[3]


The Crime Scene and First Trial
At around 6.30 p.m. on Friday, February 2, 1996, Ms. Susie Furman and Mr. John Pipkin were at their home in West Columbia, South Carolina.[4] Ms. Furman was on the telephone with her friend Doris Moore. Ms. Moore heard the doorbell ring, followed by a strange man’s voice and then a scream from Ms. Furman before the phone line went dead. Mr. Pipkin’s stepson later found Ms. Furman and Mr. Pipkin dead. Both had been killed by blunt trauma to the head, likely caused by a number of blows from a hammer. The attack was described by the South Carolina Supreme Court as a “horrific assault.”


Mr. Jones and an alleged accomplice, James Brown, were subsequently arrested and charged with two counts of capital murder and related charges. The evidence against Mr. Jones was entirely dependent upon the testimony of Mr. Brown, Mr. Jones’s roommate. Mr. Brown had an extensive criminal record and a history of striking favorable plea deals with the Lexington County solicitor’s office, the same office responsible for the prosecution of Mr. Jones. The South Carolina Supreme Court thought Mr. Brown’s criminal record and plea-bargain history noteworthy enough to merit inclusion in what became known as the Jones I decision. Mr. Brown testified that he and Mr. Jones had robbed and murdered the victims after Mr. Jones had become displeased with Mr. Pipkin, his boss, for withholding an excessive amount from his paycheck to cover refreshments consumed by Mr. Jones while at work. Mr. Brown testified that he had smoked crack with Mr. Jones on February 2, 1996, and that Mr. Jones had then suggested robbing Mr. Pipkin. Mr. Brown further testified that the pair entered the Furman/Pipkin residence and that Mr. Jones struck Ms. Furman repeatedly with a brick. Mr. Brown confessed to hitting Mr. Pipkin once with a hammer, but claimed that Mr. Jones then took the hammer from him and proceeded to beat the victims to death.


The only physical evidence allegedly linking Mr. Jones to the murders was a single bloody boot print left at the crime scene. The print was linked to a pair of steel-toe boots that were recovered from the Jones/Brown residence and that the prosecution alleged belonged to Mr. Jones.[5] Ownership was disputed. At Mr. Jones’s first trial, the prosecution introduced barefoot-insole-impression testimony in support of its case. The South Carolina Supreme Court described such evidence in Jones I: “[t]he central thesis of ‘barefoot insole impression’ evidence is that the primary wearer of footwear, over time, begins to leave an impression of the wearer’s foot in the footwear insole.”[6] Proponents of barefoot-insole-impression evidence engage in certain analytical steps such as “[i]nked impressions of the suspected wearer’s feet” and “photos of the suspected wearer’s known insoles.” In addition, “a standing cast of the suspected wearer’s foot are compared to the impression in the boots, both visually and by using calipers to compare distances between toes and other features among the various exhibits.” Devotees of barefoot-insole-impression evidence maintain that it is possible to tell, to a reasonable degree of certainty, who has worn a particular pair of shoes if one has access both to the shoes and to the suspect’s feet.


The jury at Mr. Jones’s first trial was allowed to hear barefoot-insole-impression evidence “matching” Mr. Jones to the steel-toe boots, which were in turn matched to the single bloody boot print at the crime scene. The jury thus heard “scientific” evidence putting Mr. Jones at the locus of the murders at or around the time they were committed. Mr. Jones was convicted of two counts of murder, first-degree burglary, armed robbery, and criminal conspiracy and received two death sentences and lengthy prison sentences on the related charges. Mr. Jones appealed his conviction to the South Carolina Supreme Court, questioning, inter alia, the validity of barefoot-insole-impression evidence. Mr. Jones raised issues relating not only to the latent unreliability of such evidence but also to the manner in which the evidence in his case had been analyzed—neither the agent who performed the barefoot-insole-impression analysis, nor any other agent in the South Carolina State Law Enforcement Division (SLED), had ever undertaken this type of test before. Indeed, SLED did not even have a written protocol for this type of analysis.


The Jones I Decision and Second Trial
In Jones I, the South Carolina Supreme Court considered the admissibility of barefoot-insole-impression evidence under the appropriate legal standards. The admissibility of such evidence is governed by Rule 702 of the South Carolina Rules of Evidence. The Jones I court referred to a four-pronged test: (i) The evidence must assist the trier of fact; (ii) the expert must be qualified; (iii) the underlying science must be reliable; and (iv) the probative value of the evidence must outweigh its prejudicial effect. The trial court’s decision was reviewed for abuse of discretion. The Jones I court reviewed the trial testimony of Robert Kennedy, one of the two experts in this field, including his admission that he was still in the process of collecting data to determine which standards were appropriate for comparison purposes. The court also mentioned Mr. Kennedy’s acknowledgment that previous work in this field had been discredited. The South Carolina Supreme Court in its unanimous Jones I opinion concluded:


In our opinion, it is premature to accept that there exists a science of “barefoot insole impressions” . . . the trial judge erred in permitting expert testimony purporting to demonstrate that ‘barefoot insole impression’ testing revealed appellant’s foot to be consistent with the impression made by the primary wearer of the “steel toe” boot. The admission of this evidence mandates reversal of appellant’s convictions.


This unanimous slap-down did not deter Mr. Jones’s prosecutors. Mr. Jones found himself back in the Lexington County Circuit Court, facing retrial. Once again, the state sought to use barefoot-insole-impression evidence to secure the death penalty for Mr. Jones.[7] Both sides secured the services of one of the two experts in this field, the state retaining Robert Kennedy, and defense counsel retaining Bill Bodziak. The defense did not intend to call Mr. Bodziak as a trial witness and was no doubt somewhat surprised when the state subpoenaed Mr. Bodziak to testify at trial. Defense counsel’s attempts to quash the subpoena were unsuccessful, and Mr. Bodziak testified at Mr. Jones’s retrial. The jury once again heard barefoot-insole-impression evidence, which the state argued had become scientifically reliable in the period between Jones I and the retrial. Mr. Jones may have felt a certain unpleasant déjà vu when he was convicted of two counts of murder and one count each of first-degree burglary, armed robbery, and criminal conspiracy. Mr. Jones was sentenced to death for each count of murder and was awarded lengthy prison sentences on the related charges. He appealed.


The Jones II Decision
The South Carolina Supreme Court heard Mr. Jones’s second appeal on April 7, 2009. By 2009, concerns about “junk science” and the misleading impact it may have on jurors were widespread. It has been suggested that the adversarial system has failed to unearth and discount faulty forensic science,[8] possibly due to lack of funding for defense counsel and a lack of scientific expertise at the criminal-defense bar. In addition, jurors find “scientific” evidence particularly compelling. This phenomenon is sometimes referred to as the “CSI effect” and, when coupled with unreliable forensic science and analysis, can lead to miscarriages of justice. Such concerns reached Congress (if not the Lexington County Solicitor’s Office) and the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006 became law on November 22, 2005. That statute authorized the National Academy of Sciences to conduct a study on forensic science. The resulting report, “Strengthening Forensic Science in the United States: A Path Forward” was published in 2009. The report detailed a number of concerns regarding forensic science and stated that, “[w]ith the exception of nuclear DNA analysis . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”


The South Carolina Supreme Court reversed Mr. Jones’s convictions and sentences for a second time in Jones II.[9] Interestingly, the Jones II court did not find fault with the state’s subpoena of Mr. Bodziak or the trial judge’s decision to deny Mr. Jones’s motion to quash the subpoena. The court explained that barefoot-insole-impression evidence and the existence of only two experts in the field created an extremely rare factual situation in which the state could compel testimony from a non-testifying expert witness retained by the defense.[10] However, the court did not agree with the state’s argument that barefoot-insole-impression evidence had become scientifically reliable in the period between Jones I and the retrial.[11] The court noted that there had not been any subsequent research developments validating barefoot-insole-impression evidence. The court also pointed to other failures of the SLED agent who performed the barefoot-insole-impression analysis, namely that the known shoes of Mr. Jones were size 10.5, yet the steel-toe boots were size 9.5. The agent also failed to obtain exemplars from other residents of the house where the steel-toe boots were found, despite the fact that Mr. Brown lived in the same property and had admitted leaving another pair of boots in the same room on the day of the murder. The Jones II court held that barefoot-insole-impression evidence was not admissible, as the state did not present any evidence to indicate that the evidence had become scientifically reliable. The court held that a harmless-error analysis could not be employed, as there was no other physical evidence linking the defendant to the crime scene. A concurring opinion by Justice Pleicones, the author of Jones I, sought to foreclose the possibility of barefoot-insole impression being used against Mr. Jones in the future. So ends, one hopes, our latter-day Sisyphus’ s barefoot journeys between Lexington County Circuit Court and the Supreme Court of South Carolina.


Keywords: barefoot insole impression evidence, Jones I, Jones II


Ben Lewis is an associate in the New York, New York, office of Hogan Lovells US LLP.


 


  1. In Hurrelbrink v. State, 46 S.W.3d 350 (Tex. App. 2001), a rare third class of imprint evidence was considered-a bloody sock print was found at the crime scene, which the state sought to link to the defendant through expert testimony.
  2. See, e.g., United States v. Ford, 481 F.3d 215, 218 (3d Cir. 2007) ("The Court found that there was general acceptance of shoeprint analysis in both the federal courts and the forensic community, the theory has been subject to peer review and publication, the potential error rate is known, and there are standards and techniques commonly employed in the analysis.") (reviewing the trial court's admission of shoeprint analysis).
  3. See State v. Jones, 383 S.C. 535, 541-542, 681 S.E.2d 580, 583 (S.C. 2009) (Jones II). The Jones II court referred to an extract from Mr. Bodziak's book "Footwear Impression Evidence" concerning barefoot-insole-impression evidence: "There have been many previously reported 'identifications' of a suspect as the wearer of a shoe. The consensus among experienced examiners is that identifications are rare because the random individual characteristics necessary for an identification are rarely encountered. Although, in theory, random individual characteristics could exist in a foot and be transferred to a shoe or foot impression, those characteristics are normally not present nor are they retained with the detail necessary to achieve an identification."
  4. State v. Jones, 343 S.C. 562, 566, 541 S.E.2d 813, 814 (S.C. 2001) (Jones I).
  5. Jones II, 383 S.C. at 539.
  6. Jones I, 343 S.C. at 572.
  7. Jones II, 383 S.C. at 581.
  8. See, e.g., Brandon Garrett & Peter Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, by, 95 VA. L. REV. 1 (2009). The authors-the latter of whom is the co-founder and co-director of the Innocence Project-reviewed the forensic-science testimony by prosecution experts in the trials of defendants who were later exonerated by post-conviction DNA testing. According to Garrett and Neufeld, in 60 percent of the cases reviewed, forensic experts called by the prosecution provided invalid testimony at trial.
  9. The Court of Appeals of North Carolina considered barefoot-impression evidence in State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145 (2001), concluding that barefoot-insole-impression testimony of Robert Kennedy was improperly admitted but that its admission constituted harmless error. The Jones II court cited an additional decision in which barefoot-insole-impression evidence was rejected. R. v. Dimitrov, 68 O.R.3d 641 (Ontario Ct. App. 2003).
  10. Jones II, 383 S.C. at 586.
  11. The Jones II opinion mentions three jurisdictions that have admitted barefoot-insole-impression evidence. See Thiel v. State, 762 P.2d 478, 485 (Alaska App. 1988); United States v. Ferri, 778 F.2d 985 (3rd Cir. 1985); Hurrelbrink v. State, 46 S.W.3d 350 (Tex. App. 2001) (dealing with a slightly different issue as this case concerned a bloody sock print left at the scene rather than barefoot-insole-impression evidence. Mr. Kennedy testified for the defendant and stated that a socked foot on a cement floor does not provide the clarity where it can be said that the impression only belongs to one person). In addition, barefoot-insole-impression evidence was admitted in State v. Hasan, 205 Conn. 485, 534 A.2d 877 (Conn. 1987).

 

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Examples of technology-facilitated stalking and how to get legal help

Content provided by Youthlaw, adapted with permission by Women’s Legal Services NSW. The examples used in this guide are drawn from DVRCV’s SmartSafe research (2013) and are based on experiences of women in Victoria.

Example 1

Dora has a domestic violence protection order (also known as an intervention order or apprehended violence order) against her ex-partner but he has been sending her abusive text messages and contacting her via Facebook. She is confused as to whether her ex-partner’s actions constitute a breach of the intervention order, and if it is a breach, how she provides evidence

Risk factors

  • Abusive text messages, calls and unwanted Facebook contact form a pattern of stalking behaviour
  • Stalking is recognised as a risk factor for serious violence, including homicide
  • Dora’s ex-partner is also breaching the intervention order. Repeated breaches are a predictor of future serious violence

How can the law protect her?

  • Dora’s ex is likely to be breaching the Order by sending her abusive text messages
  • Dora’s ex may also be breaching the Order by contacting her on Facebook, depending on what the conditions in her Order say. For example, if it includes a condition that prevents her ex-partner from contacting her
  • It is a criminal offence to breach a condition of an intervention order and if Dora reports this to police, police should investigate. If the police do not investigate, she should consider making a police complaint or getting legal assistance from a Community Legal Centre
  • If Dora no longer has a copy of the intervention order to check the conditions, she can contact the Local Court or local Magistrates Court to get another copy or ask police for help

What evidence can be used to help her?

  • Dora should print out any screen-shots from Facebook as soon as she can, in case her ex deletes any relevant posts or Facebook takes the content down
  • She should keep any text messages from him that may breach the Order in her phone and take screen shots and email them to herself or a person she trusts for safe keeping, in case her phone breaks down
  • For more assistance with evidence gathering, email smartsafeplus@dvrcv.org.au for information on the SmartSafe+ App
More Information

 Example 2

Edith is distressed after her ex-partners family and friends have contacted her on Facebook with messages from her ex-partner. Edith has a domestic violence protection order (also known as an intervention order or apprehended violence order) but is unsure if this covers his family and friends contacting her. She has had trouble getting these forms of contact being taken seriously by police and has been advised to just close her Facebook account

Risk factors

  • When a perpetrator uses family and friends to contact a victim/survivor he is exhibiting stalking behaviour.
  • This is known as proxy stalking
  • Stalking is associated with significant risk of additional violence and also homicide

How can the law protect her?

  • The Order Edith has against her ex-partner may include a condition that states her ex cannot direct anybody else to engage in conduct that is prohibited by the order, or ‘contact her buy any means’ which may extend to getting others to contact her or harass her
  • If Edith tells police about her concerns that her ex is breaching the order but police do not act, she should ask to speak to the sergeant-on-duty or Domestic Violence Liason Officer for clarification. If she still feels police are not taking her concerns seriously enough, she should seek advice from her local Community Legal Centre
  • If she is advised the order does not prevent her ex’s friends or family from contacting her, she should consider making an application to vary the Order to prevent this happening; or seek advice on whether she can apply for an intervention order against his friends and family separately
  • If Edith no longer has a copy of Order, she can contact the Local Court or local Magistrates Court to get another copy or ask police for help

What evidence can be used to help her?

  • Edith should print out any screen-shots from Facebook that show evidence of her ex’s friends and family contacting her via message or posts
  • Even if she is not sure whether their messages are a breach of the Order, she should save screen-shots of them and print them out just in case the messages or posts are deleted before she can get police to take action or get the legal advice she needs
  • For more assistance with evidence gathering, email smartsafeplus@dvrcv.org.au for information on the SmartSafe+ App
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 Example 3

Tara experienced many forms of domestic violence, including sexual violence, from her ex-partner. He has uploaded intimate videos online of her that were taken during their relationship. He is using these videos to threaten her. She does not have a domestic violence protection order (also known as an intervention order or apprehended violence order) and feels embarrassed to tell anyone about what has happened

Risk factors

  • Intimate partner sexual violence is a risk factor for further violence
  • Men who sexually abuse their partners are also more likely to use controlling behaviour such as stalking
  • The use of threats and intimidation also put Tara at risk for additional violence

How can the law protect her?

  • Tara can report her ex-partner to police because he has committed a number of crimes including, for example, using a carriage service to menace, harass or offend
  • The police may apply for a domestic violence protection order on Tara’s behalf
  • Tara can also go to her Local Court or local Magistrates Court and apply for a domestic violence protection order (also known as an intervention order or apprehended violence order). She can tell the court clerk that she is embarrassed about talking about or showing the content in public and the court should try to respect her privacy and dignity as much as possible
  • Given the history of domestic violence and the nature of his threats, the court is likely to find make an Order to protect her. The court can make it a condition of an Order that her ex cannot continue to distribute or publish the videos or any other images of her online

What evidence can be used to help her?

  • Tara should keep any evidence of her ex making threats to upload the content or any other exchanges between them that show he is behaving in a menacing, harassing or offensive way and/or in a way intended to cause her physical or mental harm (including self harm)
  • This could include text messages, voicemail messages, emails or messages and posts on social media. It could also include any witnesses who might have seen or heard him making threats to her, including Tara herself
  • Tara needs to keep track of how to contact any witnesses if she needs them to give evidence in court for an intervention order application or to police if they investigate
  • It is important that any witnesses, including Tara, remember as much detail about what they saw or heard as possible so they should write down a chronology (including times and dates) to help them remember and keep a diary to keep track of any further incidents that might be relevant
  • Tara may consider recording a conversation without her ex’s knowledge as evidence of his threats. She should seek legal advice about doing this. For more information of whether covert recordings are lawful, see your relevant State/Territory Surveillance Devices Guide below
  • To be successful in proving any criminal charges against Tara’s ex in court so she should keep as much evidence of his abusive, harassing and violent behaviour as possible
  • For more assistance with evidence gathering, email smartsafeplus@dvrcv.org.au for information on the SmartSafe+ App
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Example 4

Eva’s husband controlled her use of her iPhone and installed an app on the phone so that he could track her using GPS. He was also physically abusive. When she left him the domestic violence crisis worker advised her to turn off the location services on her phone. She has a domestic violence protection order (also known as an intervention order or apprehended violence order). Her husband is still harassing her with text messages and phone calls and he is following her but by the time she calls the police her husband has gone

 Risk factors

  • Perpetrators who exhibit controlling behaviour such as monitoring the use of a phone and tracking victim/survivors via GPS, are more likely to be violent to their partner
  • Following and tracking are stalking behaviours that increase the risk of future violence and homicide
  • Eva is also at a high risk as she has recently separated from her husband. There is a high risk for lethal violence within the first two months of women leaving the perpetrator

How can the law protect her?

  • If Eva has a domestic violence protection order against her husband, it may contain specific conditions that prevent him from stalking, harassing her or, putting her under surveillance
  • If Eva’s husband is breaching the order, he is committing a criminal offence and Eva can report this to police who should then investigate
  • Eva’s husband could also be charged with one or more criminal offences for surveillance or physical abuse, for a list of the possible crimes involved, see the legal guide for your State/Territory below

What evidence can be used to help her?

  • Eva should keep all the abusive text messages he sent her on her phone and her phone service provider should be able to provide her with records of her call history if she asks for them. In case text messages are automatically deleted off a phone over a period of time, Eva should consider screenshotting the text messages or using an App to download them off her phone
  • Depending on the capabilities of her phone and the records her phone service provider keep, she may be able to retrieve evidence of downloading the app and how her husband used it to keep her under surveillance (eg login details and frequency)
  • If Eva took any photographs of her injuries from when her husband physically assaulted her or if she went to a doctor, she should provide this information to police
  • Even if Eva cannot get some of this evidence, she may be able to prove he committed a criminal offence through her own testimony as a witness or anyone else who saw or heard something that would support her claims
  • For more assistance with evidence gathering, email smartsafeplus@dvrcv.org.au for information on the SmartSafe+ App
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 Example 5

Emily is confused and upset because her ex-partner is court-ordered to contact her via her mobile phone in order to organise visits with their child, yet he uses these times to abuse and threaten her with violence

Risk factors

  • Threats of violence, emotional and psychological abuse are all indicators for the continuation of abuse, including physical violence

How can the law protect her?

  • Making a threat to kill or seriously harm a person is a criminal offence in any situation and no court order gives a person the power to make such threats
  • Emily can report the threats to police and police may charge Emily’s ex-partner with an offence such as making a threat to kill or cause serious harm or using a carriage service to harass, menace or offend, depending on the circumstances
  • Emily can apply for a domestic violence protection order (also known as an intervention order or apprehended violence order) if she feels she is at risk of further family violence from her ex. Police may also apply for this Order on her behalf
  • In the course of applying for an protection order, the court should make new orders that override existing Family Court orders for contact with the children if necessary to protect Emily and/or the children

What evidence can be used to help her?

  • Emily should keep the messages on her phone and she should take a screen shot of the messages from her phone, if possible, and send it to her email or another person she trusts for safekeeping
  • Tara may consider using an App to record telephone conversations with her ex’s without his knowledge as evidence of his abuse. She should seek legal advice about doing this. For more information of whether covert recordings are lawful, see your relevant State/Territory Surveillance Devices Guide below
  • For more assistance with evidence gathering, email smartsafeplus@dvrcv.org.au for information on the SmartSafe+ App
More Information

State & Territory Information

For more information, please click on the relevant State or Territory.

Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia