STATE v. David Wayne KUNZE - Court of Appeals of Washington, Division 2.
97 Wash.App. 832, 988 P.2d 977 (1999)
1 All footnote references to the record are omitted from this edited version of the opinion. The other footnotes have been renumbered.

2 There may have been more than one intruder. For convenience, we refer only to one.

3 This diagram is Exhibit 4 to the State's Offer of Proof and Memorandum of Law Re: Ear and Cheek Impression Evidence, Clerk's Papers at 352.

5 Some of these may have been taken at a later date, but that does not affect our analysis. For convenience, we refer to all of them as if taken at this time.

6 This was suggested in two articles that Millar had read.

7 As Grubb later put it, they were "look[ing] at the ear as a tool," and they were "trying to duplicate the use of that ear the same way as it would have been used at the crime scene." Report of Proceedings at 192.

8 As noted earlier in the text, Grubb did not know the amount of pressure that the intruder had used when making the latent print.

9 The record discloses two readable responses, each apparently secured for purposes of this case. Dr. C. Schott of Germany states in a letter that the use of earprints in criminal proceedings is "fully acknowledged by German and Austrian courts," and that earprints "have the same evidentiary value as the morphology [general shape] of the face, ears, and hands." Exhibit 18A, page 2. John Kennerly, a fingerprint officer in England, states in a letter that "[t]he forensic science community in the UK support the view that the external ear has a unique design and comparison of the features and characteristics can lead to a valued opinion in determining personal identity."

Exhibit 19. Neither statement distinguishes between class characteristics and individualizing ones, or between opinions of non-exclusion and opinions of inclusion.

10 Speaking to the degree of possible distortion, Van der Lugt said that "the [breadth] of an ear can be up to two and a half millimeters wider, and the length can go up to four millimeters from the original." Report of Proceedings at 706. He later clarified that these numbers were "average figures for distortion. It can be more. It can also be less."

11 Van der Lugt reiterated this method at trial when he said, "[I]t's obvious you choose the one print that fits the found print the most," then "use that as an overlay."

12 State v. Polite, No. 84-525 (14th Judicial Circuit, Fla. Jun. 10, 1985).

13 In excluding the earprint evidence, the Florida trial judge stated: The State's witness claims to have made a positive identification of the Defendant by comparing a latent earprint found at the crime scene with a known earprint
of the Defendant. This appears to be a case of first impression not only in Florida but also in the United States. There is almost no literature on earprint identification and certainly no case law on this issue of earprint identification to guide the Court. The State has offered two witnesses as "experts" to support the admissibility of the earprint identification. The Court finds that one of the State's witnesses, Alfred V. Iannarelli, is not to be recognized as an expert by the Court in determining the admissibility of this evidence.

The Court notes that there were no true scientific tests performed in making the earprint identification. This identification was performed strictly as a comparison test between a known earprint and a latent earprint. The State bases its data on the alleged uniqueness of ears between individuals to establish the reliability of the results of this type of identification. Forensic anthropologists recognize the possible uniqueness of an individual's ears but not as a means of identification.

The testimony presented to the Court suggests that there is a significant difference between comparing actual ears and photographs of ears and the comparing of earprints to each other. Earprints are impressions of an ear. The evidence shows that the ear is a three dimensional object and is malleable. There are no friction ridges as in fingerprints. Different pressures may cause different results with the same ear or different ears to have similar earprints. Furthermore, there are no studies concerning the comparisons of earprints to establish their reliability and validity as a means of identification. The reliability and validity of the results of comparisons of earprints are not recognized or accepted among scientists. There appears to be no science, as in odontology, existing at this time which makes the comparison of earprints possible due to the alleged uniqueness of an individual's ear characteristics. Furthermore, the comparison techniques used in this case are not sufficiently established to be deemed reliable. The comparison of earprints has not passed from the stage of experimentation and uncertainty to that of reasonable demonstrability. Clerk's Papers at 1073-74.

14 This case did not result in a published appellate opinion.

15 He also said that it has not been established, as a generally accepted principle, that no two ears are alike.

16 See also Report of Proceedings at 759 ("from a scientific point of view, we don't try to make things look the same ... we try to document similarities or differences without affecting the materials examined").

17 Apparently, the defendant's bloody fingerprint was found at the scene, and the victim's blood was found on items in the defendant's car.

18 Kunze claims that Van der Lugt's last answer violated one of the trial court's orders in limine, and that the trial court erred by not granting a mistrial. We need not reach that claim, because the problem should not recur on retrial.

19 See ER 701 (dealing with lay testimony "in the form of opinions or inferences"); ER 702 (dealing with expert testimony "in the form of an opinion or otherwise").

20 See ER 701; ER 702; Riccobono v. Pierce Cy., 92 Wash.App. 254, 267-68, 966 P.2d 327 (1998).

21 Compare ER 701 with ER 702. See also Advisory Committee Note to Federal Rule of Evidence 701, 56 F.R.D. 183, 281 (FRE 701's requirement that lay opinion be "rationally based on the perception of the witness" is "the familiar requirement of first-hand knowledge or observation").

22 ER 701; Advisory Committee Note to Federal Rule of Evidence 701, 56 F.R.D. 183, 281; (requirement that lay opinion be "rationally based on the perception of the witness" is "the familiar requirement of first-hand knowledge or observation"); Washington's comment to ER 701 (under ER 701, "[t]he emphasis belongs on what the witness knows and not on how he is expressing himself"); State v. Carlson, 80 Wash.App. 116, 124, 906 P.2d 999 (1995).

23 ER 702. When an expert desires to apply scientific knowledge to the facts of the particular case, his or her opinion must also, of course, rest on appropriate case-related facts. See ER 703; Riccobono, 92 Wash.App. at 267-68, 966 P.2d 327; Advisory Committee Note to Federal Rule of Evidence 703, 56 F.R.D. 183, 283.

24 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, ----, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999).

25 Michael J. Saks, Merlin and Solomon: Lessons from the Law's Formative Encounters with Forensic Identification Science, 49 Hastings L.J. 1069, 1081 (1998); see also Harold Tuthill, Individualization: Principles and Procedures in Criminalistics 16 (1994) ("Criminalistics is the science of individualization.").

26 John I. Thornton, The General Assumptions and Rationale of Forensic Identification: Evaluation of Source, § 20-21, in MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY (David L. Faigman, David H. Kaye, Michael J. Saks & Joseph Sanders eds., 1997).

27 Because of this proposition, the State's reliance on People v. Marx, 54 Cal.App.3d 100, 126 Cal.Rptr. 350, 77 A.L.R.3d 1108 (1975), is misplaced. Marx was a murder case with bitemark evidence. When the appellate court and the trial court looked at the evidence, they could see "the extent to which the purported bite marks [on the victim's body] appear to conform generally to obvious irregularities in defendant's teeth." 126 Cal.Rptr. at 356 (emphasis added). As a result of these readily discernable irregularities, the evidence showed one or more individualizing characteristics.

28 Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C.Cir.1923); State v. Copeland, 130 Wash.2d 244, 255, 922 P.2d 1304 (1996); State v. Jones, 130 Wash.2d 302, 307, 922 P.2d 806 (1996); State v. Cannon, 130 Wash.2d 313, 325, 922 P.2d 1293 (1996).

29 State v. Greene, 139 Wash.2d 64, ----, 984 P.2d 1024, 1027 (1999); Copeland, 130 Wash.2d at 255, 922 P.2d 1304; Jones, 130 Wash.2d at 306, 922 P.2d 806; Reese v. Stroh, 128 Wash.2d 300, 306, 907 P.2d 282 (1995); State v. Russell, 125 Wash.2d 24, 40, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995); State v. Riker, 123 Wash.2d 351, 359, 869 P.2d 43 (1994); State v. Janes, 121 Wash.2d 220, 232, 850 P.2d 495, 22 A.L.R.5th 921 (1993); State v. Cauthron, 120 Wash. 2d 879, 886, 846 P.2d 502 (1993); State v. Ortiz, 119 Wash.2d 294, 310-11, 831 P.2d 1060 (1992); State v. Lord, 117 Wash.2d 829, 850, 822 P.2d 177 (1991); State v. Martin, 101 Wash.2d 713, 719, 684 P.2d 651 (1984) (citing Frye, 293 F. at 1014).

30 Greene, 139 Wash.2d at ----, 984 P.2d at 1028; Cauthron, 120 Wash.2d at 896, 846 P.2d 502; Lord, 117 Wash.2d at 851, 822 P.2d 177.

31 Greene, 139 Wash.2d at ----, 984 P.2d at 1028; Copeland, 130 Wash.2d at 255-56, 922 P.2d 1304; Jones, 130 Wash.2d at 307, 922 P.2d 806; Cauthron, 120 Wash.2d at 888, 846 P.2d 502; State v. Black, 109 Wash.2d 336, 342-43, 745 P.2d 12 (1987); Martin, 101 Wash.2d at 721-22, 684 P.2d 651; State v. Hayden, 90 Wash.App. 100, 109, 950 P.2d 1024 (1998).

32 State v. Noltie, 116 Wash.2d 831, 851, 809 P.2d 190 (1991); Hayden, 90 Wash.App. at 106, 950 P.2d 1024. Such use can be the subject of judicial notice when not subject to reasonable dispute. ER 201(b).

33 Jones, 130 Wash.2d at 307, 922 P.2d 806; Cauthron, 120 Wash.2d at 888, 846 P.2d 502; Martin, 101 Wash.2d at 721-22, 684 P.2d 651; State v. Cissne, 72 Wash.App. 677, 680-84, 865 P.2d 564, review denied, 124 Wash.2d 1006, 877 P.2d 1288 (1994). We do not intend the statement in the text to be exclusive. We leave open the possibility that general acceptance can be found in other ways also.

34 Cauthron, 120 Wash.2d at 887, 846 P.2d 502; see also Greene, 139 Wash.2d at ----, 984 P.2d at 1027; Jones, 130 Wash.2d at 307, 922 P.2d 806; State v. Buckner, 125 Wash.2d 915, 917, 890 P.2d 460 (1995); Russell, 125 Wash.2d at 41-42, 882 P.2d 747; Hayden, 90 Wash.App. at 109, 950 P.2d 1024.

35 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); Carlson, 80 Wash.App. at 125, 906 P.2d 999.

36 Daubert, 509 U.S. at 592, 113 S.Ct. 2786; Carlson, 80 Wash.App. at 125, 906 P.2d 999. ER 104(a) provides, "Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination it is not bound by the Rules of Evidence except those with respect to privileges."

37 ER 201(b); Bellevue v. Lightfoot, 75 Wash.App. 214, 222, 877 P.2d 247 (1994), review denied, 125 Wash.2d 1025, 890 P.2d 464 (1995); see Lord, 117 Wash.2d at 852, 822 P.2d 177 ("general acceptability of microscopes is unquestionable").

38 Copeland, 130 Wash.2d at 255, 922 P.2d 1304; Jones, 130 Wash.2d at 307, 922 P.2d 806; Cauthron, 120 Wash.2d at 887, 846 P.2d 502; Carlson, 80 Wash.App. at 125, 906 P.2d 999.

39 Jones, 130 Wash.2d at 307, 922 P.2d 806; Cauthron, 120 Wash.2d at 887, 846 P.2d 502; Carlson, 80 Wash.App. at 125, 906 P.2d 999. Compare General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997) (federal appellate courts review for abuse of discretion).

40 When asked "whether the uniqueness of the human ear as a basis for personal identification ... is generally accepted in [t]he Netherlands and elsewhere among those engaged in forensic identification," Van der Lugt answered, "It is accepted, yes." Report of Proceedings at 728 (emphasis added). He did not say "generally accepted," and we have no way of knowing whether the omission was intentional or inadvertent. He also did not say where "elsewhere" was, and it seems unlikely, in light of the testimony given by other witnesses, that he meant to include the United States of America.

41 Cauthron, 120 Wash.2d at 887, 846 P.2d 502.

42 We do not overlook pressure distortion, but we think that its effects on "lifting" an earprint (as opposed to "matching" the print with another one, or determining the significance of a "match") go to weight rather than admissibility. The ordinary juror knows that the human ear is malleable, and he or she can readily understand, especially when aided by cross-examination, that malleability might skew a latent print.

43 We do not overlook pressure distortion, but we think that its effects on this type of "eyeball comparison" as opposed to its effects on declaring the significance of the comparison go to the weight rather than admissibility. Aided by cross-examination, the ordinary juror can readily understand that malleability may affect a comparison of similarities and differences.

44 Of course, Kunze may challenge in front of the jury the reliability of any evidence admitted under this or either of the two preceding paragraphs. See People v. Lewis, 160 Mich.App. 20, 27, 408 N.W.2d 94, 98 (1987).

45 Thornton, supra, at § 20-4.2.