• Indiana has permitted the introduction of the existence of footprints apart from comparison.
Admission of footprint comparisons
• The correct standard for the admission of footprint comparisons was set out by the Court of Appeals in [Johnson], although the actual comparison testimony in that case was held to be erroneous.
• Evidence of the character of footprints found where the crime is discovered and of the similarity of those footprints to the shoes worn by the defendant is admissible to identify him as the guilty person.
• For the reason that footprints are large and the points of similarity are obvious (contrasted with fingerprints or palm prints), expert testimony is not required and the comparison may properly be made a subject of non-expert testimony.
See Livingston v. State, 544 N.E.2d 1364, 1370-71 (Ind. 1989)(citing Halbig v. State, 525 N.E.2d 288, 291 (Ind. 1988))(emphasis added)(“[The defendant’s] objection to the exhibits was not the comparison by [the witness] of the footprint and the boots because he concedes anyone can give an opinion on the similarity of footprints. . . .”)
• A witness is generally allowed to give his opinion as to their similarity, provided he bases his conclusion on measurements or peculiarities of the footprints.
See Wade v. State, 490 N.E.2d 1097, 1104 (Ind. 1986)(citing Hartleroad v. State, 470 N.E.2d 716, 717 (Ind. 1984))(“[A] non-expert as well as an expert may give his opinion, provided he bases his conclusion on measurements or the peculiarities of the footprints.”
See also Halbig v. State, 525 N.E.2d 288, 291 (Ind. 1988)(citing McNary v. State, 460 N.E.2d 145, 147 (Ind. 1984))(“A lay witness may give his opinion as to the character of footprints, provided he bases his conclusion on measurements or peculiarities of the footprints.”)
See also Burton v. State, 564 N.E.2d 318, 318 (Ind. Ct. App. 1990)(citing Halbig v. State, 525 N.E.2d 288, 291 (Ind. 1988))(“[The defendant] acknowledges the presence of authority permitting lay testimony as to footprint comparisons provided the conclusion is based upon measurements or peculiarities of the footprints.”)
• In some cases this provision has been relaxed and a witness may testify to his belief of similarity, but we think the better view is to require measurements or some definitive statement about peculiarities or identifying characteristics. This allows the trier of fact to determine the weight and credibility to be given the comparison.
• The question, then, is whether the witnesses based their opinions on measurements or peculiarities of the footprints.
Examples of applying the standard for the admission of footprint comparisons
• We find error in admitting the comparison of footprints to defendant's foot (shoe) because the witness failed to take measurements of the prints or testify specifically about any common peculiarities between the shoe and the print.
• [One witness] testified that police officers asked him to look at the bottom of the Defendant's shoes “to see if they matched the prints.” He then walked to the east side of his home where he observed two sets of footprints in the snow, one set going north and one going southeast. He stated . . . that he had observed the Defendant running away from his home in a southeasterly direction. He described the footprints in question as having been made by “a work shoe type sole or boot.” He further stated that, although he did not measure Defendant's shoes or the tracks in the snow, he did notice that the pattern on the bottom of Defendant's shoes was a “notched design” and that the footprints in the snow were the “same size and design as the defendant's boots.” [A second witness] described the footprints which were leading toward the southeast as “treaded footprints, like a boot or work shoe, very similar to the tread on a car” and more specifically as a “square nobby-type tread that . . . has many square protrusions approximately three eight's to a half inch long.” He then drew a picture of the pattern of the footprint at issue and stated that the Defendant was wearing boots with that design. [A third witness] testified that he examined both the footprints at issue and the boots worn by the Defendant. He stated that the length of the boot and the tread pattern were the same. We find that each witness presented a sufficient statement regarding the unique characteristics of the footprints to justify the admission of his opinion into evidence.
• In this case, the police officer stated that he based his comparison of the footprints on the particular diamond pattern of the shoe sole and the individual markings on the sole showing where it was worn. He testified that he observed these specific markings in the footprints he saw in the snow near defendant's residence and that the same diamond pattern and wear markings were present on the sole of the blue tennis shoes and in the footprints which defendant made after he was arrested. While the officer did not take specific measurements, he did show that he based his comparison in this case on specific identifying characteristics thus laying a proper foundation. . . . There was no error in admitting the testimony about the officer's comparison of footprints.
• [The defendant] also appears to argue that, because the shoeprint was determined to be a size nine and one half and his foot was found by a shoe salesman to be a ten-C, [the witness’s] testimony should not have been admitted. We believe that this issue bears on the weight to be given [the witness’s] testimony and not its admissibility.
Surrendering shoes and its relationship to the privilege against self-incrimination
• Now, as to the claim that [the defendant] was “compelled to testify against himself.” If [the defendant] had been compelled to do or say anything out of court that might tend to connect him with the crime, there would be room for the insistence that he was compelled to testify against himself, and a basis for the asserted violation of our state Constitution. In the instant case it was the shoes, and not the accused, that testified. It was the distinguishable feature of the heels of the shoes, especially the heel of the right shoe, observable by inspection, that gave evidence connecting the wearer with having made the tracks at or near the crib from which the corn was alleged to have been stolen. Beyond question, it was the shoes alone that could be considered as furnishing the link in the chain of circumstances connecting [the defendant] with the larceny.
Biggs v. State, 167 N.E. 129, 131 (Ind. 1929)(emphasis added)(citation omitted)
• Defendant . . . did not suffer abuse of constitutional rights by being required to surrender shoes for comparison with foot tracks found at the scene.