Another Ear Print Conviction Reversed!
U.K. Court Of Appeal Orders New Trial – New Trial Halted!
By Andre A. Moenssens
Douglas Stripp Professor of Law Emeritus
University of Missouri at Kansas City
According to U.K. newspapers covering his ordeal and court records later produced, Mark Dallagher had been a small-time burglar in Huddersfield, West Yorkshire. His name would, however, become synonymous with "ear print evidence" in Great Britain upon his conviction of murder in 1998.
In May of 1996, a frail, arthritic and totally deaf elderly woman was smothered with a pillow at her home in Huddersfield. When the scene was examined, ear prints were found on the glass of the window immediately below the transom window which had been forced. The windows had been cleaned three or four weeks earlier. The detectives believed that the burglar put his ear to the victim’s window so that he could listen for the presence of persons inside. Unfortunately for him, Dallagher lived in the same neighborhood and was later charged with the crime, after two police experts matched an imprint left on the window of the 94-year-old victim’s home with Dallagher’s ear.
The defendant denied any involvement in the crime, said that he had been with his girl friend when the offense was committed, but she could not corroborate this because she was asleep at the time and on medication. While he was awaiting trial, the prosecution’s case gained steam when a jailhouse snitch told them Dallagher had confessed to him.
During the two-week trial that culminated in Dallagher’s conviction of murder on December 15, 1998, and his sentence to life imprisonment, the court was presented with expert testimony from Dutch ear expert Cornelis Van der Lugt that the latent ear impression found on the window of the victim’s home was "a unique match" to the comparison print taken from Dallagher. Mr. Van der Lugt testified that he was "absolutely convinced that the prints of the defendant’s left ear were identical with the prints of the left ear on the window." The other Crown expert, Professor Vanezis, considered Van der Lugt to be the ear print expert in the world, and corroborated the ear "match" though in slightly less positive terms. Professor Vanezis testified only that "it was very likely that it was this defendant who made those prints," although he could not be one hundred percent certain. Both experts conceded that it was desirable to accumulate a larger database of ear prints for study and that more research was needed.
Dr. Vanezis was, by his position as the Regius Professor of Forensic Medicine and Science at the University of Glasgow, invested with considerable prestige in the court’s eyes, and qualified easily as a recognized expert. The other Crown expert, Cornelis Van der Lugt, was, according to the court records, a Dutch police officer for 27 years and a lecturer at the Dutch Police College, but had no formal qualifications, nor did he have a research background: "He had simply become interested in ear print identification and read what was available on that topic. He had built up a portfolio of about 600 photographs and 300 ear prints and from his experience and what he had read he was satisfied that no two ear prints are alike in every particular." The trial court accepted his testimony readily. Neither the court nor counsel were aware that the same expert had previously opined in a written report that the print he would later identify at the trial as the defendant’s, was definitely not that of Mark Dallagher. The Court of Appeal, when it reversed Dallagher’s conviction, was not made aware of that earlier report either.
The conviction was a legal first in the U.K. The newspapers heralded the guilty verdict as "a great step forward for forensic evidence." At the time of conviction, the prosecutor told the BBC that "In planning to use the ear-print evidence we sought the advice of experts in order to prove that it could not have belonged to anyone else." This statement would prove to be extremely hollow nearly four years later – in January of 2004.
Meanwhile, where ear print identifications had been seriously challenged by the defense, the evidence had not faired well in courts around the globe. A conviction on ear print evidence obtained in 1998 in the United States would be reversed the following year. The case was State v. Kunze, 97 Wash.App. 832, 988 P.2d 977 (1999), and was one in which the same Dutch expert had played a major evidentiary role. (See Court Holds Earprint Identification Not Generally Accepted In Scientific Community). A Netherlands conviction based on an ear photographic identification by Mr. Van der Lugt, the Dutch expert testifying in his own back yard, would equally be reversed by the Dutch Court of Appeal decision of May 8, 2000. (See Ear Identification In The News Again – This time it’s ear photographs! )
The same result was to befall the prosecution in Dallagher’s case. Trial counsel, while cross-examining the Crown’s witnesses on the impreciseness of the ear comparison method, had not called any experts to contradict the Crown’s evidence. On appeal in Dallagher’s case, who was now represented by different counsel, additional testimony was produced from other international experts on behalf of the defense, most prominent among them being Dr. Christophe Champod, formerly a professor at the University of Lausanne, Switzerland, and at the time of his testimony a scientist employed by the (British) Forensic Science Service, and Professor Van Koppen of the University of Antwerp in Belgium, who had also done investigations in the practice of ear comparisons. Unlike the common practice in American courts, in the U.K. legal system, new or additional evidence can be presented for the first time on appeal.
Dr. Champod, who had done a study of "ear marks" that was published in the (American) Journal of Forensic Sciences, testified that "a high variability between ears does not imply necessarily that a high variability is expressed in marks left by different persons" and that the evidence as to that is limited. He also stressed that the methodologies for comparison used by Mr. Van der Lugt and Professor Vanezis depended heavily at every stage on subjective comparisons and tolerances, raising questions as to the value to be attributed to a match. Dr. Champod concluded that "establishing the source of an unknown ear print by a comparison with ear prints from known donors cannot be regarded as generally accepted in the scientific community." He further opined that there was no empirical research, and no peer review, to support the conclusion that robust decisions can be founded on comparisons which in turn are critically dependent on the examiner’s judgment where there are no criteria for testing that judgment. Crime scene ear print comparisons with those of known individuals can be useful to assist in the early stages of an investigation, Dr. Champod asserted, and can be used to definitely eliminate a particular suspect. The meaning of a "match," however, was said to be unmeasurable. He noted that during his experience in Switzerland, suspects whose ears appeared to match crime scene ear marks were found to have had genuine and corroborated alibis.
According to the appeals court decision, "Dr. Champod’s conclusions seems to be that at the present time ear print comparison can help to narrow the field, and may eliminate, but cannot alone be regarded as a safe basis on which to identify a particular individual as being the person who left one or more prints at the scene of a crime. He points out that neither the Forensic Science Service in the United Kingdom nor the Federal Bureau of Investigation in the United States carry out ear print comparisons."
Professor Van Koppen’s testimony ran along similar lines. His report concluded, "The validity of ear identification is unknown. The research that is necessary to say anything on the validity of ear identification has not been conducted. On top of that the method used by Van der Lugt and Vanezis is subjective to an extent that they are unable to explain how they came to their judgment that there is a match between the ear mark found at the crime scene and the ear print from the suspect."
In considering both the U.K. and U.S. legal precedents on the admissibility of novel scientific evidence, the Court of Appeal in Dallagher’s case seemed to regard the American case of Frye v. United States, 293 F. 1013 (1923), which requires the "general acceptance" of novel scientific evidence in an appropriate scientific community, as erecting a standard for admissibility that was too strict. It chose, instead, to follow what it regarded to be the more lenient Daubert standard (see Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 [1993]) and Federal Rule of Evidence 702, both of which the Court regarded as requiring only a general relevancy of proffered expert testimony – a characterization of Daubert that is sure to be regarded with disbelief by American lawyers. Thus, it held that the decision to admit the evidence of Mr. Van der Lugt and Professor Vanezis was not error and found ear identification not to be so unreliable as to preclude admission of the Crown’s expert witnesses.
The Court did concur, however, with the view expressed in another British Court of Appeal precedent, which had stated, in a DNA case, that "The scientist should not be asked his opinion on the likelihood that it was the defendant who left the crime stain, nor when giving evidence should he use terminology which may lead the jury to believe that he is expressing such an opinion."
In its opinion rendered on July 25, 2002, the Court of Appeal (Criminal Division) sitting in the Royal Courts of Justice in London, quashed Dallagher’s conviction on the ground that it was "unsafe." [See, R. v. Mark Anthony Dallagher, In the Supreme Court of Judicature - Court of Appeal (Criminal Division) - No. (2002) EWCA Crim 1903.] The appellate tribunal did order a retrial within two months of the decision date. That retrial would ultimately result in the prosecution presenting no evidence and in the court declaring Dallagher to be innocent on January 22, 2004.
Why did the prosecution change its six years-held position that Dallagher was guilty? . . . When the Dutch expert had originally examined the latent ear print he would later identify as having been made "positively" by Dallagher, his initial report, discovered after the appeals court’s reversal, indicated a positive exclusion of Dallagher as the possible maker of the ear print at the victim’s residence. Mr. Van der Lugt’s original report offered as his conclusion that the latent crime scene ear prints were DEFINITELY NOT (underlined twice in the Van der Lugt report) made by Mark Dallagher.
That is not the only late development. A DNA analysis of the latent ear print on the basis of which Dallagher was convicted also showed he could NOT have produced it. See the related story at
DNA Evidence Proves Ear ID Wrong.
Disclosure:
In the interest full disclosure, the author of this article desires to make it known that he was retained by the defense during the pendency of Dallagher’s appeal and prepared a report. He did not testify before the Court of Appeal because at the time of the hearings the author had suffered a disabling physical condition that prevented him from traveling. His report, while received by the Court of Appeal, was declared not to add anything "of any value" to the testimony of Drs. Champod and Van Koppen.
