Updated Nov. 1, 2000*
Netherlands Court Of Appeal At Amsterdam Rejects Ear Reliability
In Kunze, the prosecution had mounted a determined effort to establish "general acceptance" under the Frye test. To that effect, a dozen or more experts had been summoned to testify that earprint identification enjoyed that widespread recognition, though the state's witnesses failed to so testify, and that fact was strongly disputed by defense experts. The state's experts came from all over the United States. While their testimony convinced the trial court and the jury, their failure to testify as positively as the prosecutor had hoped convinced the appeals court that such testimony was not properly admissible as scientific evidence.
Key among the prosecution experts was a Dutch police inspector who has made an international reputation for himself as being the premier expert and researcher in the field, Cornelius Van der Lugt. (See, at this Website, a related story by clicking on Are Dutch Ears Different From American Ears.) He testified both at the week-long Frye hearing, and again at the trial in the State of Washington.
Apart from his appearance in Washington, Inspector Van der Lugt has testified on his ability to make unerring and positive identifications of crime scene earprints in several European countries as well. In a recent Dutch case, he stated in testimony that he was the only ear identification expert in the Netherlands (("Inmiddels ben ik eigenlijk the enige deskundige in Nederland op dit terrein") while he also admitted not possessing any academic training ("Ik heb immers geen academische opleiding"). In a British case, he testified that an earprint on a window pane was "a unique match" to the defendant.
Ear Identification From Photographic Evidence
Last year, the issue of ear evidence surfaced again in Holland, but in a slightly different context. It was not because of the purported identification of a latent earprint, but, instead, a comparison of the ear detail visible in a photograph taken by a surveillance camera with ear photographs taken of a suspect.
Technically, it would seem that the identification of an individual by ear characteristics visible in a photograph would offer a better chance for a meaningful comparison, since pressure distortion, so prevalent in ear impressions left upon a hard surface such as a door or window, would not be present to complicate the side-by-side comparison. Comparing ear detail visible in photographs was, in fact, the subject of the original work of the American author Alfred Iannarelli when he first published his book on Ear Identification.
In a case involving robberies at service stations, Inspector Van der Lugt testified to the identification of an individual on the basis of ear detail visible in photographs. The case was tried some time ago in the Dutch City of Utrecht. Mr. Van der Lugt compared the ear detail visible in computer enhanced photographs obtained from video cameras in service station robberies that had occurred in 1997 and 1998 with photographs of a suspect and concluded that some of them matched.
The case was deemed to be of sufficient importance that the Netherlands Forensic Institute at the Netherlands Ministry of Justice was asked to evaluate the issues involved. A question of whether all ears are unique was reframed in a more utilitarian way. The researchers concluded that, on the molecular level, ears would most certainly be unique, but the real question for forensic science was whether it was possible to observe enough details in the external ear to permit individualization. That question was deemed to be unanswered in the current state of knowledge.
After examining the evidence, a report was also prepared by Professor Dr. P.J. van Koppen (of the Law Faculty at the University of Antwerp, Belgium, and also of the Dutch Center for the Study of Criminology and Criminal Justice) and Professor Dr. H.F.M. Crombag (of the Law Faculty at the University of Maastricht). The report of November 5, 1999, concluded that the evidential value of ear photographs to establish identity was "problematical" ("De waarde van dit soort bewijsmiddelen is problematisch.") In commenting on Inspector Van der Lugt's statement that no two people have the same ear characteristics, the researchers stated that there was no proven basis for that statement. They also stated that while there is also no way in which ear uniqueness can be established categorically, the usefulness of such evidence could be established at least inferentially by experimenting with a data base containing the ear characteristics of a sufficient number of individuals. How many ears should be examined to obtain a sufficient database remains unresolved. The scientists calculated how many hours would be required to examine the ears of population samples of 100 and 500 individuals. They opined that the suggestion made by Prof. Moenssens (click on Ear Identification Research), proposing that a database comprising the ears of 10,000 adult individuals be used as a basis for comparison, was unworkable as involving an effort that was too time consuming in a practical sense.
According to reports from the Netherlands received on May 18, 2000, the suspect in the case was acquitted when two witnesses testified to diametrically opposed facts. Thus, the only evidence left against the suspect was the ear evidence. In the Dutch legal system, one piece of evidence alone is not enough for conviction and the suspect was therefore released.
*New Jurisprudence On Ear Evidence in Holland
The decision of the court of appeal in Amsterdam (Het Gerechtshof te Amsterdam), in its decision of May 8, 2000, emphasized in its opinion that ear identification lacked acceptance in the forensic community. Translating from the Dutch, the court said, in part:
“The court has especially considered that the determinative proof in this case was based upon an ear identification, which, in the current state of the development in forensic science and forensic knowledge should be considered with caution and reservations. On that issue, it is the court’s opinion that the result of the [ear identification] inquiry finds insufficient support in accepted evidentiary principles.” [Case No. 23-001847-99; Verdict No. 948/00. Translated from the Dutch]
This is a fairly strong statement, especially since it comes from the court of the country where the most prominent advocate of the reliability of ear identification, Cornelius Van der Lugt, who purports to be able to make “positive” ear identifications, lives and works.
The Netherlands Forensic Institute of the Ministry of Justice had been asked to furnish a second opinion in this case. The scientists conducted a number of experiments and we are privileged that we have been permitted to publish their findings. You can read the report by the scientists Drs. Hoogstrate, van den Heuvel, and Huyben as it was prepared by them by clicking on Ear identification based on surveillance camera's images .
This Website solicits comments from the readers and will publicize additional research that is brought to its attention.
*Dutch Text of Court of Appeal Decision of May 8, 2000:
Het hof heeft hierbij met name overwogen dat de als bewijs gepresenteerde uitkomsten van het in deze zaak verrichte oorindentificatie-onderzoek, gelet of the huidige stand van de forensische wetenschap and kennis dienaangaande, met behoedzaamheid en terughoudendheid moet worden beoordeeld. Op dit uitgangspunt steunt mede het oordeel van het hof that de uitkomsten van het onderzoek onvoldoende steun vinden in andere wettige bewijsmiddelen.
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