EAR PRINT EVIDENCE R v Kempster (No 2) [2008] 2 Cr. App. R. 19 (CA)

The battle between criminal methods and criminalistic science is ongoing. As criminals become more knowledgeable about forensic techniques (with the aid of dissemination of such techniques in the media), it is becoming more difficult to find fingerprints at crime scenes. In this context the use of ear print evidence, typically as a result of an intruder pressing his ear against a window, in order to hear tell-tale sounds of someone’s presence within the dwelling, has come to the fore. It has been estimated that ear prints are reported to be found at up to 15% of crime scenes. Although the idea of using ear prints as a means of identification is not novel, ear print identification has not featured previously in the courts of a number of jurisdictions, including the United Kingdom and South Africa. Acceptance of the validity of a new form of evidence is, however, invariably a controversial matter. Ear print evidence has proved to be a particularly thorny issue, as it has been accepted in jurisdictions such as Holland (where by 2006 there had been more than 200 instances of forensic ear print identification), Spain (where the first conviction based on occurred in 2001, and where, by 2006, 20 identifications had been made) and Switzerland (where the first ear print identification of a criminal was made in 1965), but rejected in the United States. In the case under discussion the question of the probative value of ear print evidence arose for consideration. The context for this case in the English law was provided by the case of R v Dallagher [2003] 1 Cr. App. R. 12 (CA), where a murder conviction founded upon an identification obtained by means of ear print evidence was overturned on appeal. The court of Appeal held, in the light of evidence from expert witnesses expressing doubt as to the reliability of ear print identification obtained subsequent to the trial, that the trial jury may have decided otherwise had this evidence been before it. The court therefore concluded that the conviction was unsafe, and ordered a retrial. In the course of the new investigation, however, it was discovered that the DNA profile obtained from an ear print found on a window at the crime scene, which had been unequivocally linked to the accused, did not in fact match that of the accused. After setting out the relevant facts pertaining to the case at hand, this note will proceed to discuss the nature of ear print evidence. The latter part of the discussion will briefly examine the nature of the rules relating to expert evidence in certain jurisdictions, in order to place the admissibility of this particular form of evidence in context.