DAVID KUNZE CASE; PART THREE; A FORENSIC SCIENTIST'S VIEWS ON EARPRINT EVIDENCE; LULLING FACT-FINDERS INTO FALSE BELIEFS;

"THERE IS AN EVEN GREATER DANGER THAT WELL-MEANING LABORATORY EXAMINERS WILL, WHEN DEFENDING THEIR LIVELIHOOD ON THE WITNESS STAND, OVERSTATE THE PROBATIVE VALUE OF THEIR FINDINGS AND THUS LULL A FACT FINDER INTO THE FALSE BELIEF THAT THE FORENSIC EVIDENCE PROVES MUCH MORE THAN IT ACTUALLY DOES. SINCE FORENSIC EVIDENCE IS ORDINARILY PRODUCED ONLY BY THE PROSECUTION, THE RESULT IS, INEVITABLY, A CONVICTION THAT RESTS ON LESS SOLID SCIENTIFIC GROUNDS THAN THE FACT FINDER HAS REASON TO BELIEVE."

ANDRE MOENSSENS; EDITORIAL COMMENT;Forensic-Evidence.com;

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Andre Moenssens authored Fingerprints and the Law (1969) and Fingerprint Techniques (1971), was the senior co-author of Scientific Evidence in Civil and Criminal Cases (5th edition, 2005), and Cases and Comments on Criminal Law (7th edition, 2003). He has also written dozens of articles, presentation and position papers, books and book chapters, and commentaries on criminal justice and the forensic evidence.

"In other stories on this site we have told our readers about the ear print evidence experience which caused David Kunze and Mark Dallagher to spend years in prison until their convictions were reversed," Moenssen's editorial comment, published under the heading "Ear Print Case Commentary Blames "Forensic Science," begins;

"The forensic sciences are being blamed for these lapses, and they deserve the blame when earnest and well-meaning police experts seize upon a novelty that "sounds good" and rush in, using unproven and potentially unreliable expert conclusions to obtain convictions without having engaged in the careful scientific scrutiny that is expected of persons who profess to act as "scientists," the editorial comment continues;"

"If forensic science wants to be taken seriously, at a minimum such rush-to-judgment stampedes on novel evidence that has not been exposed to careful testing for accuracy and reliability must stop.

Mark Dallagher’s ordeal caused by ear print evidence has been criticized widely in the U.K. On February 3, 2004, the London Times (OnLine edition), ran an article by Roger Ede titled, "Wrongful convictions put forensic science in the dock." See http://www.timesonline.co.uk/article/0,,200-984075,00.html Ede is, himself, a co-author of a 2003 book on forensic practice in criminal cases published in the U.K. In the story, the author comments on a number of wrongful convictions that have occurred in Great Britain. These cases dealt with different branches of the forensic sciences. About the ear print case, Ede said:

"Mark Dallagher was jailed in 1998 after a prosecution expert told his trial that an earprint on a window at the home of the victim, a 94-year-old-woman, was certainly his. That evidence has since been discredited and new DNA evidence has implicated a different person. Mr. Dallagher was cleared last month."

"Forensic Science" is a broad label, under which many different disciplines labor. Some of these disciplines can point to many years of experience and have amassed a voluminous professional literature that sits atop of accumulated data supporting a good-faith belief in the worth of its findings. Friction ridge impression evidence is one of these. Forensic document examination is another. There are others. But research can never stop in any field. No matter how convinced in the infallibility of a profession’s tenets one may be, research challenging its conclusions is always desirable and should never be abandoned. After all, if the belief in the reliability of a science is so powerful, any additional research is simply likely to keep reinforcing the foundation for that belief. Additional research is not an enemy of established forensic sciences that are worthy of trust. But such research will ferret out instances where the trust is unwarranted.

The real danger in disciplines that have existed for a long time is not that their underlying premises will be proved wrong, but that experts in the field will go farther than research and experience of the past justify. There is a danger that methodologies that are used for some purposes will be misused, often unintentionally and in good faith, to achieve results which the methodologies cannot warrant. There is an even greater danger that well-meaning laboratory examiners will, when defending their livelihood on the witness stand, overstate the probative value of their findings and thus lull a fact finder into the false belief that the forensic evidence proves much more than it actually does. Since forensic evidence is ordinarily produced only by the prosecution, the result is, inevitably, a conviction that rests on less solid scientific grounds than the fact finder has reason to believe."

Harold Levy...hlevy15@gmail.com;

MARK DALLAGHER CASE: PART SIX; INTRODUCTION OF NEW SCIENCE INTO THE CRIMINAL COURTS; A BARRISTER SPEAKS OUT;

“THIS IS ANOTHER EXAMPLE OF THE DANGERS OF THE POLICE FOLLOWING SCIENTISTS TOO CLOSELY WHEN THE SCIENTISTS ARE BUILDING A SCIENCE, NOT FOLLOWING A SCIENCE”.

JAMES STURMAN Q.C;

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British barrister Neil Baki makes an important distinction between scientists who are building a science - and scientists following a science - in a article published in the Criminal Bar Quarterly on March 1, 2009 under the heading, "New Science."

"Establishing the validity of new scientific techniques and theories, and the basis for their interpretation, is essential before evidence derived from them can be used in Court," this section of Baki's article begins.

"It is not always straightforward for Judges to decide whether to admit forensic evidence," it continues;

"The Court of Appeal has recently considered earprint, lip-reading and facial mapping evidence. Indeed, polygraph tests are currently being used in criminal trials in many other countries including Canada and the United States.

Sir Alec Jeffreys has expressed his concern about the lack of protocol in the UK for deciding whether to admit scientific evidence, in relation to the validation of new scientific techniques.

The results of this lack of clarity can be seen in the case of Mark Dallagher, the first man in the UK who was convicted of murdering an 84 year old woman by using an ear-print.

His Counsel, James Sturman Q.C. told the Court, “This is another example of the dangers of the police following scientists too closely when the scientists are building a science, not following a science”.

English courts have used this technique and obtained convictions in three other cases even though it has been widely discredited mainland Europe and the United States.

Daubert Principles:

The UK Court should be more rigorous in its approach to new scientific techniques.

Most states in the US follow well defined procedures to establish whether evidence from a particular scientific technique should be admitted.

According to the Frye Test (named after a defendant in a murder case in 1923), Court can only admit evidence derived from a novel scientific method once it has gained general acceptance within the scientific community to which it belongs.

This test was further developed in the Daubert Test which has four criteria:
(i) whether the theory or technique can be (and has) been tested);

(ii) whether it has been subjected to peer review and publications;

(iii) in the case of a particular technique, what the known or potential rate of
error is or has been;

(iv) whether the evidence has gained widespread acceptance within the scientific ommunity.

The introduction of a similar such test in the UK may serve as a gate-keeping test and act as an early warning sign, particularly in the context of our adversarial system.

Harold Levy...hlevy15@gmail.com;

MARK DALLAGHER CASE: PART FIVE; UNRAVELLING OF AN "EXPERT"; A LONG OVERDUE BLOW TO EARPRINT COMPARISON EVIDENCE; THE TELEGRAPH;

"THE APPEAL COURT AIRED CONCERNS ABOUT MR VAN DER LUGT'S EXPERTISE. HE WAS A POLICE OFFICER OF 27 YEARS EXPERIENCE BUT HAD NO FORMAL QUALIFICATIONS. HE HAD "SIMPLY BECOME INTERESTED IN EAR PRINT IDENTIFICATION".

THE JUDGES RULED DALLAGHER'S CONVICTION UNSAFE BUT ORDERED THAT HE REMAIN IN PRISON PENDING A RETRIAL.

THAT HEARING BEGAN IN MANCHESTER LAST JUNE BUT WAS HALTED AFTER THE RECEIPT OF NEW EVIDENCE AND THE LAUNCH OF A FRESH INQUIRY. IT RESUMED YESTERDAY WITH THE CROWN SAYING IT WOULD OFFER NO EVIDENCE. THE DEFENCE REVEALED THAT DNA FROM ONE OF THE ORIGINAL EARPRINTS SHOWED IT COULD NOT HAVE BEEN MADE BY DALLAGHER."

THE TELEGRAPH:

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The unravelling of earprint evidence in Europe and North America was described in a story which appeared in The Telegraph on January 22, 2004, without a by-line, under the heading, "'Breakthrough' looks less and less convincing."

The sad part of the story is that Mark Dallagher remained behind bars for seven horrific years as a murderer while the reputations of Cornelis van der Lugt and his pseudo science became unravelled.

Although several people had been convicted in England because of earprint evidence - which the courts had begun to accept as fact - it had become apparent, however, that there is little scientific basis for this.

The reality was that experts did not have a database of earprints, nor a scientific method of comparing prints, apart from laying the suspect's print on top of the one found at the scene and examining them for differences.

Prof Peter von Coppen, of Leiden University in Holland, had issued a paper disputing earprint evidence in which he said: "There has been no research done in which you can say, for instance, what the national distribution of lobes is, so you don't know if the earprint is one which would match 80 per cent of everyone else's or whether it has unique characteristics."

Far too many innocent persons would have been avoided horrific consequences - including the death penalty - if judges had exercised their gate-keeper function and protected them from so-called experts such as, Charles Smith, Michael West, Steven Hayne, Louise Robbins and Cornelis van der Vugt.

"Two smudged earprints made by a burglar who pressed his head to Dorothy Woods's window before jemmying it open were the only clues police found when they discovered the 94-year-old spinster murdered in her bed," the Telegraph story began.

"The West Yorkshire police turned to Cornelis van der Lugt, a Dutch former scenes of crime officer who had made himself the world expert in the fledgling science of earprint identification," it continued;

"At the trial of 26-year-old Mark Dallagher, it was the Dutchman's testimony that sealed a conviction.

Prof Peter Vanezis, a leading British forensic scientist, did not go quite as far as Mr van der Lugt in saying the evidence pointed to Dallagher, but said he thought it "highly likely" that Dallagher left his earmarks on the window above Miss Woods's bed.

The case was hailed as representing an important breakthrough in forensic techniques. "We now have another weapon in our arsenal against crime," said one investigating officer.

The Crown Prosecution Service went further, claiming in its 1999 annual report that the case had "made legal history".

But even as that report was published, the scientific evidence underpinning the conviction was unravelling.

A court in the United States upheld an appeal by David Kunze who had been convicted of aggravated murder on the evidence of Mr van der Lugt that his earprints had been found at the crime scene. The judges said Mr van der Lugt's theories on earprints were "not generally accepted in the forensic science community" and his evidence should have been inadmissible.

In May 2000 a court in Amsterdam overturned a conviction in another case where van der Lugt had given expert evidence. The Dutch court said that the infant discipline of earprinting should be treated "with caution and reservations".

Dallagher continued to protest his innocence, claiming that he had been at home with his girlfriend on the night of the killing in 1996. His appeal was heard in July 2002.

The Appeal Court aired concerns about Mr van der Lugt's expertise. He was a police officer of 27 years experience but had no formal qualifications. He had "simply become interested in ear print identification".

The judges ruled Dallagher's conviction unsafe but ordered that he remain in prison pending a retrial.

That hearing began in Manchester last June but was halted after the receipt of new evidence and the launch of a fresh inquiry. It resumed yesterday with the Crown saying it would offer no evidence. The defence revealed that DNA from one of the original earprints showed it could not have been made by Dallagher.

Despite Dallagher's acquittal, Mr van der Lugt told The Telegraph that his faith in earprinting remained strong. He is involved in a multi-million pound European Union-funded research project that aims to produce European earprinting standards."

Harold Levy...hlevy15@gmail.com;

MARK DALLAGHER CASE: PART 4; FIRST INTERVIEW ON RELEASE AFTER 7 YEARS ; GUINEA PIG FOR NEW "SCIENCE"; THE TOLL THAT IT TAKES; THE YORKSHIRE POST;

"MARK DALLAGHER, A SMALL-TIME BURGLAR FROM HUDDERSFIELD, LATER BECAME THE FIRST PERSON IN BRITISH HISTORY TO BE CONVICTED ON THE EVIDENCE OF AN EARPRINT AFTER POLICE EXPERTS SAID THEY WERE 100 PER CENT SURE THAT HIS WAS AN EXACT MATCH FOR THE MURDERER'S. IT WAS SUPPOSED TO BE THE NEXT BIG THING IN CRIMINAL INVESTIGATIONS – A NEW TYPE OF EVIDENCE AS TRUSTWORTHY AS A FINGERPRINT WHICH COULD PROVE CRUCIAL IN THE FUTURE. YET MR DALLAGHER WAS RELEASED IN JANUARY THIS YEAR AFTER NEW DNA GENETIC EVIDENCE PROVED CONCLUSIVELY THAT THE EARPRINT COULD NOT HAVE BEEN HIS........."

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"HIS SINGLE BED IS SURROUNDED BY PHOTOGRAPHS AND CARDS, AND HE REFERS TO HIS BEDROOM AS HIS "CELL". IT IS THE ONLY PLACE, HE SAYS, WHERE HE FEELS SAFE FROM THE WORLD THAT LET HIM DOWN SO BADLY.

"YOU CAN'T JUST TAKE A MAN'S WHOLE LIFE OFF HIM, TAKE HIS FREEDOM AWAY FROM HIM AND JUST PUT HIM AWAY FOR EIGHT YEARS AND THEN KICK HIM BACK OUT AFTER EIGHT YEARS AND SAY, 'OK, GO ON, YOU'RE ALL RIGHT.'

"IT DOESN'T WORK LIKE THAT," HE SAYS.

REPORTER KATE O'HARA: YORKSHIRE POST;"

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Reporter O'Hara's story, containing the first interview with Mark Dallagher following his release, ran on September 29, 2004, under the heading, "Earmarked – for rough justice."

The story carried the sub-heading: "An earprint on a window pane landed Mark Dallagher in prison for seven years for a murder he did not commit. Now he breaks his silence about the flawed evidence."

"WHEN 94-year-old Dorothy Wood was murdered, the only real clue to her killer was an earprint left as he listened at her window," the story begins;

"Ms Wood, a retired health visitor who was profoundly deaf, was found dead in bed at her home in Whitby Avenue, Fartown, on May 7, 1996. She had been smothered by a pillow," it continues;

"Mark Dallagher, a small-time burglar from Huddersfield, later became the first person in British history to be convicted on the evidence of an earprint after police experts said they were 100 per cent sure that his was an exact match for the murderer's.

It was supposed to be the next big thing in criminal investigations – a new type of evidence as trustworthy as a fingerprint which could prove crucial in the future. Yet Mr Dallagher was released in January this year after new DNA genetic evidence proved conclusively that the earprint could not have been his.

In his first interview since being released in January after a "grotesque miscarriage of justice" that saw him locked up for seven years, he still looks shocked that investigators could get it so spectacularly wrong.

Shaking his head constantly during an hour-long documentary that follows him throughout his time in prison, his appeal, his retrial and eventual release, Mr Dallagher says he is finding it hard to cope with life since his release.

He has moved in with his fiancee, yet has his own room which he has fashioned into a mirror image of the cell he spent seven years bitterly fighting to escape from. He folds up his towel and flannel after washing, and packs his soap and toothbrush neatly onto the stack, just as he did in prison.

His single bed is surrounded by photographs and cards, and he refers to his bedroom as his "cell". It is the only place, he says, where he feels safe from the world that let him down so badly.

"You can't just take a man's whole life off him, take his freedom away from him and just put him away for eight years and then kick him back out after eight years and say, 'OK, go on, you're all right.'

"It doesn't work like that," he says.

"Because I'm struggling, you know, and I'm 30 years old but I'm struggling going to town centres and getting a bus and using a pay phone. Everything is hard, everything. I don't know how to use mobile phones, and I don't know how to work DVD players. I'm having to learn everything."

A jury unanimously found Mr Dallagher, formerly of Honoria Street, Fartown, Huddersfield, guilty of smothering Ms Wood, after being told by a Dutch expert that the famous earprint must have been his.

But a retrial was ordered by the Court of Appeal in 2002 after his conviction was found to be unsafe.

A new investigation was launched, and in January, when the prosecution offered no evidence against him, Judge Sir Stephen Mitchell formally found him not guilty of Ms Wood's murder.

Yet nobody has ever apologised to Mr Dallagher for taking seven years of his life, and no one has been convicted of Ms Wood's murder. West Yorkshire Police say they consider the matter "closed".

For Mr Dallagher, who told his fiancee and his father Mick that he would commit suicide if he lost his appeal, the matter is far from closed.

His voice cracking with emotion, he says: "I'm fighting for my life here, that's all I've been able to do. But there is still a murderer out there."

West Yorkshire Police said last night: "Having re-examined the case, the force has not found any evidence to lead to the prosecution of any other suspects for the murder of Dorothy Wood.

"Therefore we consider the matter closed until any further admissible evidence comes to light.""

Harold Levy...hlevy15@gmail.com;

MARK DALLAGHER CASE: PART THREE; BBC REPORT OF HIS MURDER CONVICTION LAUDED ROLE PLAYED BY "EXPERT" EARPRINT EVIDENCE; "A GREAT STEP FORWARD";

"NORMAN SARSFIELD, OF WAKEFIELD CROWN PROSECUTION SERVICE, SAID THE VERDICT WAS "A GREAT STEP FORWARD FOR FORENSIC EVIDENCE".

HE SAID: "THIS IS PROBABLY THE FIRST TIME THAT SUCH EVIDENCE HAS BEEN USED SUCCESSFULLY IN A MURDER TRIAL AND WILL FORM THE BASIS OF CASE LAW IN THE FUTURE.

"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." "

BBC CORRESPONDENT: JOHN CUNDY;

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UK: The BBC's December 15, 1998 report lauded the contribution expert earprint evidence had made to Mark Dallagher's murder conviction;

Readers would have rested content that thanks to science the right man had been convicted and justice was done - which, of course, turned out to be anything but the truth;

The story, by correspondent John Cundy, ran under the heading, "Ear print catches murderer." (Dallagher who had vociferously protested his innocence from the outset was now a murderer);

Sub-headings included: "Dorothy Wood (centre) was suffocated with a pillow during a burglary," and, "An innovative if bizarre piece of evidence," "Dallagher's distinctive earprint was found on Mrs Wood's window," and "Great step forward."

"A man has been convicted of murdering an elderly spinster on the basis of "earprint" evidence, in what is believed to be a legal first," Cundy's report began.

"Mark Dallagher, 25, from Huddersfield, West Yorkshire, was caught after police matched an imprint left on the window of the 94-year-old victim's home with his ear," the report continued;

"Dorothy Wood, who was frail and profoundly deaf, was smothered with a pillow at her home in Fartown, Huddersfield in May 1996. the report continued;

"The court heard evidence during the two-week trial from international ear experts including Cornelis Van Der Lugt of the Netherlands, that the ear print was a unique match to Dallagher.

Detectives believe Dallagher put his ear to Mrs Wood's window to listen for signs of anyone in the house.

Norman Sarsfield, of Wakefield Crown Prosecution Service, said the verdict was "a great step forward for forensic evidence".

Jonathan Hallewell reports: Dallagher denied being the murderer
He said: "This is probably the first time that such evidence has been used successfully in a murder trial and will form the basis of case law in the future.

"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."

Dallagher, who denied murder, was jailed for life at Leeds Crown Court.

Afterwards his sister, who declined to give her name, insisted he was innocent and said she planned to appeal."

Harold Levy...hlevy15@gmail.com;

MARK DALLAGHER CASE: PART TWO; "EXPERT" EARPRINT EVIDENCE PUTS MAN BEHIND BARS FOR SEVEN YEARS BEFORE HE'S CLEARED BY DNA; TELEGRAPH STORY;

"IN THE WEEK OF THE JUDGMENT IN THE ANGELA CANNINGS CASE - WHICH HAS LED TO A REVIEW OF 258 CONVICTIONS WHERE COT DEATH EXPERTS TESTIFIED - THIS RAISED FRESH QUESTIONS ABOUT EXPERT EVIDENCE, HE ADDED.

MR STURMAN SAID: "THIS IS ANOTHER EXAMPLE OF THE DANGERS OF THE POLICE FOLLOWING SCIENTISTS TOO CLOSELY WHEN THE SCIENTISTS ARE BUILDING A SCIENCE NOT FOLLOWING A SCIENCE.""

SEAN O'NEILL: THE TELEGRAPH;

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The Telegraph story by reporter Sean O'Neill ran under the heading, "Expert evidence flaws clear 'earprint killer'" on January 23, 2004;

"A man convicted of murder on the basis of an earprint was acquitted at a retrial yesterday after the expert evidence that jailed him was shown to be flawed," the story began.

"The collapse of the case against Mark Dallagher, which made legal history in 1998 when he became the first man to be convicted of murder by earprint evidence, is another blow to the credibility of expert witnesses," the story continued;

"The handful of convictions obtained using earprint identification techniques may now have to be re-examined.

Dallagher, 31, was cleared at the Old Bailey of murdering 94-year-old Dorothy Woods after a DNA analysis of earprints left at the murder scene undermined expert testimony that they were made by him.

A jury at Leeds Crown Court had found him guilty in 1998 after Cornelis van der Lugt, a Dutch former policeman turned earprint expert, said he was "absolutely convinced" that Dallagher had made the prints found on Miss Woods's window.

The prosecution claimed that Dallagher, a convicted burglar, had left the prints while listening at the window before breaking into the house in Huddersfield in May 1996.

But following an appeal, a retrial and a fresh police investigation the Crown said it had "anxieties" about the case and was offering no evidence against Dallagher.

James Sturman, QC, defending, said Dallagher was the victim of "a grotesque miscarriage of justice" who had spent almost six years in prison and always maintained his innocence.

"The killing of Dorothy Woods was a wicked crime that had nothing to do with Mark Dallagher," said Mr Sturman.

In the week of the judgment in the Angela Cannings case - which has led to a review of 258 convictions where cot death experts testified - this raised fresh questions about expert evidence, he added.

Mr Sturman said: "This is another example of the dangers of the police following scientists too closely when the scientists are building a science not following a science."

Sir Stephen Mitchell, the judge, said "this most unfortunate saga" was now at an end.

"It was the most terrible killing and the centrepoint of the evidence was the earprint - scrutiny and examination of earprints was then in its infancy," he added.

The judge said it was "refreshing" that West Yorkshire police had carried out a new inquiry leading to Dallagher's acquittal.

He recorded a not guilty verdict and wished Dallagher well.

The defendant, who was in court with his fiancee, Karen De'ath, thanked the judge.

Outside court, Neil O'May, Dallagher's solicitor, said his client wanted police to pursue the case to find the real killer.

"DNA evidence flatly contradicts the original prosecution case because the DNA found was not Mark Dallagher's," said Mr O'May.

"Mr Dallagher has been very angry about the way he has been prosecuted and the reliance on so-called expert earprint evidence.

"This is another case where a serious miscarriage of justice has occurred because of unreliable science."

West Yorkshire police admitted that new evidence "challenges the science of earprint identification". A police spokesman said: "Having re-examined the case the force has not found any evidence to lead to the prosecution of any other suspects for the murder of Dorothy Wood.

"Therefore we consider the matter closed until any further admissible evidence comes to light.""

Harold Levy...hlevy15@gmail.com;

MARK DALLAGHER CASE: PART 1; MORE ON BRITISH REPORT CALLING FOR EXPERT WITNESS REFORMS: "THE TELEGRAPH" CITES NOTORIOUS EARPRINT EVIDENCE CASE;

"IN ANOTHER CASE MARK DALLAGHER, 30, SPENT NEARLY SEVEN YEARS IN JAIL PROTESTING HIS INNOCENCE AFTER AN OLD BAILEY JURY WAS TOLD BY AN EXPERT, A DUTCH POLICE INSPECTOR, THAT EARPRINTS FOUND AT A MURDER CRIME SCENE MATCHED HIS EXACTLY."

REPORTER CHRISTOPHER HOPE: THE TELEGRAPH; PHOTO: MARK DALLAGHER'S SO-CALLED "DISTINCTIVE" EARPRINT;

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In his report on the release of the British Law Commission report earlier this week reporter Christopher Hope refers to the Dallagher case - in which then 30-year-old Mark Dallagher was wrongfully convicted after a jury was told by an "expert" that earprints found at a murder crime scene matched his exactly.

The Dallagher case is a classical example of judges abandoning their gatekeeper function in the face of non-scientifically proven evidence as demonstrated by Drs. West and Hayne in the U.S.A. with their ludicrous "bitemark" theories, Dr.Louise Robbins (also U.S.A.) and her destructive footprint evidence, and Dr. Charles Smith in Canada who saw things during an autopsy on a child that no-one else could see.

Hope's story ran under the the following heading (fully reflective of the government's spin): "Criminals could have been wrongly freed by the courts because of unreliable evidence from expert witnesses, the Government's law advisers say today."

"The Law Commission is recommending a new "quality test" which expert witnesses will have to pass before giving evidence in criminal trials, Hope's story, published on April 6, 2009, begins;

"The crackdown comes after a series of miscarriages of justice arising from unsafe evidence from expert witnesses," the story continues;

"Jeremy Horder, the Commissioner leading the project, added that some guilty criminals had been wrongly freed.

Prof Horder said: "There have been miscarriages of justice in recent years where prosecution expert evidence of doubtful reliability has been placed before Crown Court juries.

"There may also have been unwarranted acquittals attributable to such evidence.

"We want to ensure that the criminal courts have the means to authenticate expert evidence and be satisfied that the information before them is sound."

The Law Commission will propose at the start of a three-month consultation that judges adopt a new "statutory test for determining the admissability of an expert witness in criminal proceedings".

If an expert witness does not pass the test, then his or her evidence cannot be heard in court.

Prof Horder added: "We want to ensure that the criminal courts have the means to authenticate expert evidence

and be satisfied that the information before them is sound."

The Commission also recommends new guidelines for Crown Court judges and magistrates' courts to help them determine whether expert evidence is sufficiently reliable to be admitted.

One of the most high profile miscarriages of justice was in 1999, when Sally Clark was jailed for killing her 11-week-old son Christopher in December 1996, and eight-week-old Harry in January 1998.

An appeal in 2000 failed, but she was freed in 2003 after a fresh appeal. She was found dead in 2007.

The jury at her trial was told by an expert witness, Professor Sir Roy Meadow, that the probability of two natural unexplained cot deaths in a family was 73 million to one. Other experts said the odds were about 200 to one.

In another case Mark Dallagher, 30, spent nearly seven years in jail protesting his innocence after an Old Bailey jury was told by an expert, a Dutch police inspector, that earprints found at a murder crime scene matched his exactly.

After the Court of Appeal ordered a retrial, a DNA sample from the earprint proved it was not Mr Dallagher's.

In December 2007 the biggest criminal investigation in the history of British sport collapsed after a series of police and Crown Prosecution Service blunders which led to the inquiry being branded "incompetent''.

The error which finally sank the case was the prosecution's reliance on an Australian racing steward as their expert witness. He was ridiculed in court when he admitted he did not know the rules of UK horse racing."

Harold Levy...hlevy15@gmail.com;