Amnesty Hearings — Durban — 2000-07-24

UNKNOWN: Of course.
MR VISSER
"... a misidentification by photographic superimposition of skull and anti-mortem photograph has been reported ..."
you say - well, they say one, well let's leave that aside and we go on to read -
"... the error was confirmed after positive identification using fingerprints ...",
so what he is saying here is there is on record a misidentification.  Be that as it may, the article goes on to say -
"... this illustrates the danger of over-estimating the capability of this method.  In conclusion, despite some limitations in obtaining a positive identification, the Computer Aided Facial Reconstruction and Video Superimposition methods are very useful in enhancing the process of identification, especially in the case of a severely decomposed or mutilated body and skeleton remains."
That would meet with your approval as well?

UNKNOWN: Yes.

MR VISSER: Alright.  You see Professor, why I read that to you is because it appeared to us when we received your report and when we received this article, that you were aligning yourself with the article and yet, if you look at your results and conclusions at the last page thereof, you say
"... I am satisfied that there is an excellent match between the photographs examined, and the skull in question, and I am of the view therefore that it is (and I stress this) highly likely that the skull is part of the remains of Ntombi Kubheka."

UNKNOWN: That is right.

MR VISSER: Now, that is not the same as saying it is a possible?

UNKNOWN: It is not the same as saying it is a positive.

MR VISSER: That is true, that is true.  But are you then saying it is indeterminate?

UNKNOWN: Not at all, I am saying that in my experience and bear in mind also, I have now another seven or eight years experience in this work from when that article was written in, well that was published in 1996, it was written a lot earlier than that and based on software that we used in the earlier stage, and I spent a lot of time looking very carefully at the skull and the photograph in different positions, we took a great deal of care, and this is a very carefully considered opinion and as you can see, I stress that it is not a positive identification, but nevertheless it is still an excellent match.

MR VISSER: Yes.

UNKNOWN: And it is on that basis that I say "very likely".

MR VISSER: Likely, alright.  Now, coming to the category of positive identification, I noticed in the article that the author there said that, or seemed to suggest that video superimposition cannot ever be a positive identification and if that is so, certainly Dr Loth disagrees with him.

UNKNOWN: I have never said that.

MR VISSER: No, no, I am not saying you did, I am saying that the article seems to suggest that and I read that to you just now, but if that is the suggestion, can we be in agreement that there could be in fact, such a positive identification that it could be beyond reasonable doubt, in fact?

UNKNOWN: In this case you mean?

MR VISSER: No, no, in general.

UNKNOWN: In any case?  Well, as the article says where you have a number of landmarks, more landmarks that you can compare and also if you have teeth marks as well, then you can make an assessment where you can actually do a positive identification.  This has been done on teeth marks, on a skull photo superimposition, and we have done it ourselves with a case that was presented in Italy three years ago.  But the problem remains that in virtually all other cases, unless you have some quite extraordinary bony abnormality of the skull, which you can match up, then I would have to say that you cannot positively identify.

MR VISSER: Yes, well you have just come very close to what I am going to put to you straight away, because in the Forensic Science Second Edition, which I mentioned to you earlier, there is a paper by Iskan & Loth and what they say is this, and I would like to read it to you, and forgive me, it is a little long, but I believe it is relevant.  It starts off by saying
"... numerous prospective matches survive initial screening, but most of these will wind up in the "indeterminate" category.  This is due to the fact that a large number of very similar features are shared by the members of any given age, sex, race group or nationality and this cannot be deemed diagnostic identity."
I then skip two sentences and I read the following -
"... if no idiosyncratic characteristics or factors of individualisation can be isolated and matched, the comparison can only be considered indeterminate or inconclusive."
So what they are saying is you start off with a possible, but if you cannot find individualistic features in comparison with either what you know from evidence of this person, anti-mortem or from the photograph, in your comparison with the skull that you are examining, it can at best be termed indeterminate.

UNKNOWN: Well, I think it is perhaps an emphasis situation here, I am saying that with, when I look at the skull and photograph, I look at as many landmarks as I can on both and we do quite close contour match, and we use two different photographs.  My view is that you can say more than indeterminate, my view is that if you get an excellent contour match, that says a great deal about the matching process, but I would agree to the extent that it is inconclusive when we are saying whether or not we are looking at positive identification.

MR VISSER: Yes.

UNKNOWN: It cannot conclude it is a positive identification, no, I agree with that entirely.

MR VISSER: So, can we agree then that you and Dr Loth and the rest agree that in the absence of an individualistic discernible similarity, there cannot be a positive identification, am I putting that correctly?

UNKNOWN: Correct.

MR VISSER: Thank you.  How many landmarks do you use when coming to conclusions in regard to identification from radiography of the skull?

UNKNOWN: We don't use radiography of the skull.

MR VISSER: Alright.  How many landmarks do you use on the skull of Ms Kubheka here, in this case?

UNKNOWN: It varies.  I think in this case we used 37, but sometimes we use 40, it depends on whether or not we feel it applicable.  We have used less.  As far as the superimposition is concerned, what I stress is important here, is contour matching.  There are landmarks at certain points, yes, but it is important that you match the profiles, the contours of the actual image.

MR VISSER: And how many landmarks would you use for contour matching?

UNKNOWN: Well, you don't use landmarks for contour matching, as such, you are using contours.

MR VISSER: Right well, can I just refer you to a work which is called Forensic Analysis of the Skull by Iskan and Helmer, you have heard of Helmer?

UNKNOWN: Richard Helmer, yes, he's with us today in South Africa, yes - sorry, in Washington, I beg your pardon.

MR VISSER: Well, if he is here, I would be surprised to hear.  I was looking up everybody I could find.
	At page 180 we find the following, it says under "Conclusions - Discussions and Conclusions", 
"... this chapter presents an analysis of the relationship between the landmarks on the face (which you have been talking about) and corresponding locations on radiography of the skull."
and he says this, he says -
"... four groups of standards, using a total of 58 examining targets have been established for identifying a skull by superimposition.  These include eight targets for the examining lines, nine for contour curve (I think which is what you have referred to), 13 for soft tissue thickness, and 28 for the relevant relationships of the landmarks."
Would that be an over-kill or would you say that would be what is necessary to do?