Bitemark Case Law: The Judicial failure by accepting bitemark experts as “qualified to identify” defendants

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“Bitemark Identification” acceptance stems from this list of appellate cases starting in 1975 (Marx). This is a short list of the seminal cases (allowing the jury of decide the evidence declared to be science) that flowed from this first appellate decision from California. The glaring inability of the courts to separate these dentists’ mere opinion from science-determined practices is truly the story of how junk science gets into our criminal and civil court system. Many of the dentists listed as experts are/were members of the AAFS/ABFO consortium of forensic “scientists.”

Excerpts from 25 Appeal Court decisions in which appeal of bitemark evidence admissibility was denied.

People v. Marx, 54 Cal. App. 3d 100 – Cal: Court of Appeals, 2nd Appellate Dist., 5th Div.

Three dentists testified on behalf of prosecution. One dentist testified on behalf of defendant. The three prosecution experts were: Reidar Sognnaes, a dentist and professor at UCLA medicine school;Gerald Vale, a dentist and lawyer and chief of forensic dentistry with the Los Angeles Coroner’s office; and Gerald Felando, a dentist in private practice. The project of identifying the teeth which made the bite on the victim was conducted in part as a joint effort. Each of the three experts used somewhat different analytic techniques.

None of the prosecution experts specifically identified the other tooth-bite cases. There was no evidence of systematic, orderly experimentation in the area.Moreover, in this particular case, there was thefurther difficulty that although the victim died on February 3, casts of her nose were not taken until March 25, after an autopsy had been performed and she had been embalmed, buried, and exhumed.

People v. Milone, 356 NE 2d 1350 – Ill: Appellate Court, 2nd Dist. 1976

Dr. Lester Luntz, the State’s leading expert testified that, in terms of quality for comparison purposes, the bite mark on the victim’s thigh was an excellent specimen. The marks were clear, the quality of the marks was good, and because the victim was already deceased when the bite was inflicted, the skin and underlying tissue provided an unchanging medium for the marks. As the most experienced of the expert witnesses, Dr. Luntz testified that in the course of his work as a dentist and instructor in forensic dentistry he had seen between 200 and 300 bite marks in human skin and had been called upon to give his opinion in five bite-mark cases. In comparing the defendant’s dentition to the bite mark in the instant case, Dr. Luntz enumerated 29 points of comparison between the marks and the defendant’s dentition which led him to identify positively the defendant as the perpetrator of the bite. In addition, Dr. Luntz was able to produce an explanation for the distortion which appeared in one segment of the bite mark by inflicting bite marks on human skin, with casts of defendant’s teeth.

Dr. Harold Perry, an orthodontist for 20 years and chairman of the Department of Orthodontics at Northwestern Dental School, testified that he had seen over 40,000 casts of teeth in his work and that in his opinion, every individual’s dentition is as distinct as his fingerprints. He concurred with the positive identification made by Dr. Luntz and pointed out that less than 1% of the population would have a fracture of the left central incisor as was observed in the casts of the defendant’s teeth and the bite mark on the victim. He stated that this correlation, along with a number of other outstanding characteristics present in both the mark and the defendant’s dentition, could leave no doubt that defendant had inflicted the bite.

Dr. Irwin Sopher, M.D., dentist, and forensic pathologist, testified that, compared to numerous bite marks he had seen on human bodies or read about in forensic literature, the bite mark in question was good in terms of definity of points, clarity, lack of distortion, and lack of decompositional change. He also found numerous unique and specific points of identification which enabled him to concur with the other State experts in their positive identification of Richard Milone as the perpetrator of the bite.

The four forensic odontologists called by the defendant testified that it is far easier to exclude a suspect through bite-mark comparison than to positively identify a subject through the marks left by his teeth. All four pointed out areas of inconsistency between the bite mark and the moulds of defendant’s teeth, and for this reason either denied that a positive identification could be made, or specifically ruled out the defendant as the person responsible for the tooth marks on the victim.

In rebuttal, the State witnesses explained why the inconsistencies pointed out by the defense experts existed, and steadfastly held that defendant’s teeth made the impression on the victim’s thigh.

 

Milone v. Camp, 22 F. 3d 693 – Court of Appeals, 7th Circuit 1994

 

It is clear that the probative value of the odontology evidence presented by the state was not so outweighed by its prejudice to Milone as to deny him a fundamentally fair trial. With respect to its probative value, while the science of forensic odontology might have been in its infancy at the time of trial, as Milone asserts, certainly there is some probative value to comparing an accused’s dentition to bite marks found on the victim. With respect to the prejudice to Milone caused by the admission of what he claims was unreliable evidence, he had ample opportunity to persuade the trial judge to discount the testimony of the state’s expert: Milone was able to cross-examine the state’s expert both in regard to his credentials and in regard to the general reliability of the science of bite mark identification, and Milone presented several experts of his own to testify that he could not have made the mark found on Sally’s thigh. Accordingly, it was not constitutional error for Illinois to have allowed the admission of the bite mark evidence.

 

People v. Middleton, 54 NY 2d 42 – NY: Court of Appeals 1981

Dr. Levine testified, with a reasonable degree of medical certainty, that the bite wounds had been inflicted by defendant. Conceding that the accuracy of the comparison could be affected by the quality of the specimen, the number of marks on the skin and distortions in the skin, Dr. Levine noted that segments of the 12 teeth identifiable from the five wounds were perfectly consistent with defendant’s teeth, that indeed he could find no inconsistency despite the fact that teeth have unique characteristics of arrangement, shape, angle and size, and that the odds against the characteristics found identifying defendant being duplicated in any other person’s mouth were “astronomical”. While the weight of that evidence was, of course, for the jury there clearly was proper foundation for its admissibility.

People v. Slone, 76 Cal. App. 3d 611 – Cal: Court of Appeals, 2nd Appellate Dist., 4th Div.

Comparing defendant’s dentition to the bite mark photographs and replicas, Dr. Berg could not exclude defendant’s dentition. Further, Dr. Berg found a minimum of 10 points of significant correlation between the bite mark that was on Barbara’s body and defendant’s dentition. Of the 414 dentitions culled from thousands of records at the U.C.L.A. clinic, Dr. Berg found only three which had any points of similarity to the bite mark; he made wax impressions of these dentitions and studied them further. They were eventually ruled out.

After many hours of examination and study, Dr. Berg came to the conclusion that “it is very highly probable that the bite mark on the victim was perpetrated by the teeth belonging to the defendant.” Dr. Berg thought it “[v]ery highly improbable” that some individual other than defendant had inflicted the bite.

In the opinion of Dr. Vale, it was highly probable that the bite mark on the body of the decedent, Barbara Collins, was made by the teeth of the defendant. It was also Dr. Vale’s opinion that the term “highly probable” was equatable with the term “reasonable dental certainty.” The possibility of someone else having made the bite was “extremely slight.”

 

State v. Sager, 600 SW 2d 541 – Mo: Court of Appeals, Western Dist. 1980

Dr. Luntz concluded that the bite mark reflected in the photograph of the breast of the victim was beyond a reasonable doubt placed upon the victim’s breast by appellant.

Dr. Furness testified he had viewed approximately 150 bite mark cases and that if one dissimilarity appeared, this would exclude the person as a suspect. He further stated that although it might appear to the layman that bite marks appear similar, it is impossible for two humans to make exactly the same bite mark. He explained his analysis depicted in the visual aids used as exhibits explaining how the teeth corresponded to the bite marks, describing the reasons for assigning each of the points of similarity. The points of similarity were assigned on the basis of corresponding positions, high spots, spacing irregularities and outer surfaces of the teeth. He denied that embalming a body would distort a bite mark. He concluded that in his opinion, “based upon reasonable medical and dental certainty” that the person from whom the casts were obtained inflicted the wound depicted in the colored photograph. It was his opinion that appellant was the perpetrator of the bite mark.

While the experts in the instant case arrived at opposite ends of the conclusion spectrum in their interpretation of the particular evidence, one common denominator emerges from their voluminous testimony and the extensive number of exhibits. That common denominator is that forensic odontology, inclusive of bite mark identification, is an exact science. It is exact in the sense that through acceptable scientific procedures, an expert can form an opinion useful to the courts in their quest for the truth.

 

Com. v. Henry, 569 A. 2d 929 – Pa: Supreme Court 1990

Next, appellant argues that it was error for the trial court to have denied his pretrial motion in limine to preclude the Commonwealth from making reference to bite mark evidence through the testimony of Dr. Dennis Asen, a general practicing dentist. Dr. Asen testified as to the source and nature of bite marks found on the victim’s body. Because the appellant did not dispute that he caused the marks, this claim actually concerns the dentist’s testimony that the bite marks were attacking or sadistic in nature.

Appellant claims that the dentist is unqualified to state that the bite marks were attacking or sadistic because there is no generally accepted scientific procedure for comparing bite marks. Although it is true that the American Dentistry Association does not recognize forensic odontology as a specialty, and there is no board certification in forensic odontology, Dr. Asen testified that he had taken courses, attended lectures and read the professional literature concerning forensic odontology. Further, he testified that he had done research into the categorization of human bite marks and that he was able to distinguish lunatic and fighting bite marks from attacking or sadistic bite marks and from sexually oriented bite marks. The essence of the distinction is that fighting bite marks are less well defined because they are done carelessly and quickly, whereas attacking or sadistic bite marks are made slowly and produce a clearer pattern. According to Dr. Asen, the sadistic bite mark is one of the most well-defined. Sexual bite marks are also well defined, but usually have a red center, produced by sucking tissue into the mouth. The dentist testified that the bite marks produced in this case were extremely well-defined, and were attacking or sadistic in nature. The legal significance of this testimony is that it might have been considered by the jury as part of their determination that the homicide was committed by means of torture.

 

 

People v. Smith, 63 NY 2d 41 – NY: Court of Appeals 1984

THE BITE MARK EVIDENCE

Defendant’s major point in support of his request for a new trial concerns the admissibility of a photograph of a bite mark allegedly made by him in August 1977 on the nose of another victim, Marilee Wilson. In its presentation of the case the prosecution originally set out to identify the bite mark on Donna Payant’s body by comparing a stone model of defendant’s teeth to a photograph of the mark on Donna Payant’s body. However, Dr. Campbell, a prosecution expert, testified on cross-examination that, for purposes of identifying bite marks, human skin was the ideal material in which to take bite mark impressions. The prosecutor argued that in light of that testimony the People should be permitted to introduce the Wilson photograph

The chief expert witness for the People, Dr. Levine, testified that he could make a positive identification by comparing a photograph of a bite mark to a stone cast of teeth, but the best means for identifying a bite mark would be comparison with another bite mark made in skin in similar circumstances. According to Levine, photo comparison of different bite marks on the same victim is an accepted technique. Levine testified that, though there has been little occasion for comparison of bite marks on different persons, among forensic odontologists such a procedure was reliable and accepted, and he named seven such odontologists (among 45 to 50 in the Nation) who have recognized it. Levine had himself used this technique previously and on one occasion testified in court on the procedure. For the defense, the principal expert witness, Dr. Luntz, testified that the comparison of a 1977 photograph of a bite mark on a nose with a 1981 photograph of a bite mark on a chest was not generally accepted as a reliable technique for identifying the biter. He noted differences in the elasticity of skin and in skin properties depending on the affected area of the body, and observed that skin is not a good medium for registering bite marks. Dr. Luntz testified that photographs create distortions, but acknowledged that he had relied on a photo-to-photo comparison for purposes of excluding a suspect as the biter.

 

Bundy v. State, 455 So. 2d 330 – Fla: Supreme Court 1984

 

Both experts explained that because of the wide variation in the characteristics of human teeth, individuals are highly unique so that the technique of bite mark comparison can provide identification of a high degree of reliability.

 

Kennedy v. State, 640 P. 2d 971 – Okla: Court of Criminal Appeals 1982

 

Dr. Glass also prepared microscopic slides of injured tissue sections. Using a light-polarizing lens on his microscope, he was able to detect a foreign material in the breast tissue sections which he believed to be calculus, a calcified substance which collects on teeth. He also detected the presence of a birefringent material which can be found in a human’s mouth; and a type of bacteria which would not be found outside of the alimentary canal.

Additionally, he said that the numerous types of microorganisms present in the wounds were consistent with a finding that the bites had been made by someone who had a significant amount of gingivitis.

The evidence being allowed, Dr. Glass testified he was of the opinion that the models of the appellant’s teeth were consistent with the bite marks on the victim’s breasts.

 

State v. Temple, 273 SE 2d 273 – NC: Supreme Court 1981

 

Dr. Webster testified that based on his experience of examining the teeth of thousands of individuals for over twenty years, he believed that each individual has an unique and distinctive dentition.

Dr. Webster stated that defendant’s dentition was unusual and distinctive in that there was a malalignment causing the front teeth, or central incisors, to point backwards toward the back of the head, and causing the lateral incisors to point outward.

 

People v. Marsh, 441 NW 2d 33 – Mich: Court of Appeals 1989

 

Dr. Fox commenced his examination the same day. He took photographs and an impression of suspected bite marks and then removed the tissue itself for further study. A tissue sample was sent to another doctor to examine under a scanning electron microscope for cellular damage. Where cellular damage is observed, and the damage (indenture) is severe enough, a comparison of the cellular damage to a particular tooth may lead to a positive identification on whether the tooth made the mark.

Because no cellular damage was observed, Dr. Fox did his analysis by making a comparison between an enlarged photograph of the surface marking on the skin and a tracing of defendant’s bite mark.

On cross-examination, Dr. Fox was candid about the difficulty skin, as a medium, poses for bite-mark analysis. Dr. Fox also concluded that he could not say with reasonable certainty that the marks were made by defendant’s teeth. However, he opined that there were two marks that were consistent with defendant’s teeth and that there was no discrepancy in the pattern of the marks which would totally rule out defendant.

 

Brooks v. State, 748 So. 2d 736 – Miss: Supreme Court 1999

 

Dr. Hayne also found bite marks on Courtney’s wrist. Dr. Michael West, a forensic odontologist, was called in to examine the bite marks. Dr. West gave extensive testimony regarding the tests he had conducted in reaching the conclusion that the bite marks had been made by Brooks. Brooks’ expert, Dr. Harry Mincer, testified that while he could not say with medical certainty that Brooks made the bite marks, neither could he exclude Brooks as the biter.

Brooks was convicted of capital murder. He was sentenced to life in prison.

 

Bludsworth v. State, 646 P. 2d 558 – Nev: Supreme Court 1982

 

The court found the expert, a forensic odontologist, to be properly qualified. The expert witness acknowledged the inherent limitations in his investigation. Because the bite mark was located on pliable tissue, the expert testified that it was impossible to make an ideal comparison between the bite mark and a dental impression of either appellant; however, the expert was able to testify, based on a reasonable dental certainty, that the bruises on Eric’s scrotum were caused by human teeth.

 

State v. Richards, 804 P. 2d 109 – Ariz: Court of Appeals, 2nd Div., Dept. B 1990

 

He demonstrated that the bite was human and identified the four teeth that marked the victim’s skin. Dr. Campbell testified that the exemplar showed unique markings, some of which corresponded with the markings on the victim’s skin. He concluded that the bite mark was consistent with appellant’s dentition.

 

Carter v. State, 766 NE 2d 377 – Ind: Supreme Court 2002

 

The defendant contends that the trial court erred in allowing bite mark evidence from a forensic odontologist to be admitted into evidence. Dr. Edwin Parks testified that the bite mark on the victim was more likely than not caused by the defendant.

n 1977 this Court could find “no reason why [bite mark] evidence should be rejected as unreliable….” Niehaus v. State, 265 Ind. 655, 661, 359 N.E.2d 513, 516 (1977). The analysis of bite mark evidence was a relatively new procedure in 1977, id., and the defendant does not argue that it has become less reliable.

 

Niehaus v. State, 359 NE 2d 513 – Ind: Supreme Court 1977

 

Dr. Standish acknowledged that the identification of suspects by this manner of comparison between marks in human tissue and the teeth of suspects was a relatively new procedure and had not yet been extensively used. He further acknowledged that this was the first occasion of his having personally undertaken such a determination. From this, the defendant contends that the field is not sufficiently recognized for reliability as to qualify as an area of expertise and that Dr. Standish was not sufficiently experienced in the area to qualify as an expert.

As for the qualifications of Dr. Standish, we deem it unnecessary to go into great detail. His testimony revealed that he was a graduate dentist with some thirty years of practice and teaching experience. He had become interested in this subject several years earlier, had attended twelve to fifteen lectures and read thirty to forty articles upon the subject by others experienced in the field.

 

 

 

State v. Garrison, 585 P. 2d 563 – Ariz: Supreme Court 1978

 

Appellant complains of the testimony of an expert witness, Homer Richardson Campbell, Jr., a dentist, that there is an eight in one million probability that the teeth marks found on the deceased’s breasts were not made by appellant. The witness, Campbell, is a board certified specialist in forensic dentistry and a member of the American Society of Orthodontology. His testimony is that the wounds in the deceased’s breasts had ten points of similarity with appellant’s teeth. He testified:

“My conclusion was that the bite marks on the deceased, and the bite marks produced by the model that I received, were consistent, the marks were consistent with those being made by the teeth that I received.”

He further testified:

“* * * the probability factor of two sets of teeth being identical in a case similar to this is, approximately, eight in one million, or one in two hundred and fifty — one in one hundred and twenty-five thousand people.”

 

Dr. Campbell in the course of his experiments made about 50 wax impressions and about 30 acetate plates. Only three impressions and four acetate plates were produced at the trial. The remainder were destroyed. Dr. Campbell testified that he threw away probably 26 acetate plates and that they were thrown away “because essentially they have no value at all” and because “they didn’t reproduce the marks as seen in the photographs.” The reason some of the impressions and acetate sheets didn’t reproduce the marks as seen in the photographs was because the bite on the wax was not made from the same angle or the same force as those on the deceased’s breasts.

In State v. Willits, supra, if the evidence had not been destroyed, it might have tended to exonerate the defendant. But that is not true in the instant case. The wax impressions and acetate plates which were destroyed had no evidentiary value whatsoever. They were simply material from which no conclusions could be made, either as to innocence or guilt, because they did not duplicate the conditions under which the wounds on the deceased’s breasts were inflicted. They would not have tended to exculpate appellant had they been preserved.

 

Howard v. State, 701 So. 2d 274 – Miss: Supreme Court 1997

 

 

The State’s case relied heavily upon the testimony of a dentist, Dr. Michael West, who testified that he matched one of the bite marks to the impressions of Howard’s teeth. The State presented no blood, semen, or other evidence to prove that Howard had committed rape, but relied upon circumstantial evidence of bruises and bites upon the victim.

Dr. West testified that the science of dentistry recognized that teeth are unique, and that bite marks can “be identified back to the perpetrator or biter.” Dr. West also stated that bite-mark evidence is similar to fingerprint identification.

 

State v. Armstrong, 369 SE 2d 870 – W Va: Supreme Court of Appeals 1988

 

The paper towel was on top of the trash and appeared to have been chewed. Mr. James contacted the police, who gave the paper towel to the State Medical Examiner, Dr. Irvin M. Sopher. Dr. Sopher, who has doctorate degrees and experience in both medicine and dentistry, made casts of what appeared to be teeth impressions on the paper towel.

While showing the jury the bite-mark evidence, Dr. Sopher testified that each person’s teeth structure and alignment are unique; that the appellant’s teeth were irregularly aligned and several were crooked, and that such irregularity facilitates confirmation of the match between a suspect’s teeth and a bite mark; and that an examination of each tooth indicates an exact, perfect match between the appellant’s teeth and the bite-mark pattern on the paper towel, with no incompatibility. Dr. Sopher therefore concluded with a reasonable degree of dental certainty that “the bite-mark pattern in the towel is that of the teeth of Keith Armstrong, to the exclusion of all other individuals.”

Many of the courts have emphasized that the reliability of bite-mark evidence, unlike most scientific evidence, is, when presented properly in the particular case, readily apparent; it is a “common sense” type of comparison.

 

Commonwealth v. Cifizzari, 492 NE 2d 357 – Mass: Supreme Judicial Court 1986

 

The doctor testified that the impression showed nothing because the skin was only bruised; the teeth did not break through the skin. He explained that bruising occurs as a result of the fracturing or tearing of blood vessels, and that the blood circulation indicates where the teeth were. He also said that bruise marks will remain on the body for about twenty-four to thirty-six hours. The witness had studied the subject of bruising in his postgraduate program in oral pathology.

He noted that the upper right central tooth was “retrouded.” The doctor acknowledged that the defendant’s front tooth had been missing at the time the imprint was taken, however, he stated that the root does not normally move. He said that the tooth that had been attached to the root was palatally displaced. On cross-examination, Schwartz testified that it is very difficult for trauma, in combination with the loosening of teeth, to cause relocation of the natural teeth in a human being over a two-year period.

 

State v. Kleypas, 602 SW 2d 863 – Mo: Court of Appeals, Southern Dist., 2nd Div. 1980

 

Then, upon cross-examination, Dr. Gier was asked: “You aren’t telling us that it is your opinion that the defendant made the bite marks, are you?” He answered: “It’s my opinion that within a reasonable scientific certainty that the bite marks were made by the defendant.” Thereafter, counsel for the defendant developed the opinion of Dr. Gier that statistics relative to the number of people with very similar bite marks had not been accepted by the forensic dental field; but, he added the number would be very, very low. The defendant then moved to strike the entire testimony of Dr. Gier for the reason that it had not been shown there was a recognized science with regard to bite marks. The motion was overruled.

People v. Watson, 75 Cal. App. 3d 384 – Cal: Court of Appeals, 1st Appellate Dist., 1st Div. 1977

 

In addition to testifying to a number of experiments attempting to duplicate the bite marks, Dr. Beckstead stated his opinion that “The possibilities of having another individual with exactly the same separations that Mr. Watson has, with the teeth on the same angle, with the same width of teeth, the teeth in the same position in the skull, exerted the way they were with the same opening and closing thrust is highly unlikely.”

 

Verdict v. State, 868 SW 2d 443 – Ark: Supreme Court 1993

 

 

The video deposition of Dr. Michael West was played to the jury. West testified that the bite on Kelly’s thumb matched the pattern of Verdict’s teeth and that without a doubt he was the biter.

The circuit court was entirely correct in the case before us that a bite mark timed by Dr. West to have occurred minutes before death is relevant to show who might have been present at that time. In sum, the circuit court was right in finding that Dr. West’s testimony was relevant and reliable.

 

People v. Holmes, 601 NE 2d 985 – Ill: Appellate Court, 1st Dist., 2nd Div. 1992

 

Dr. John Kenney and Dr. Lowell Johnson testified as experts for the State that certain marks on the victim’s body were bite marks inflicted by defendant. However, Dr. Larry Pierce and Dr. E. Stephen Smith testified as experts for the defense that the marks were not bite marks and that they were not inflicted by defendant. It is clear that all of these witnesses were qualified to testify as bite mark experts.

About csidds

Dr. Michael Bowers is a long time forensic consultant in the US and international court systems.
This entry was posted in Bitemarks, forensic science reform, junk forensic science, National FOrensic Science Commission and tagged , , , , . Bookmark the permalink.

1 Response to Bitemark Case Law: The Judicial failure by accepting bitemark experts as “qualified to identify” defendants

  1. csidds says:

    Reblogged this on FORENSICS in FOCUS @ CSIDDS | News and Trends and commented:

    Risks to public safety from bad forensic “science” has the US courts system partly responsible. Courts allow over-reaching prosecutors to use these experts in order to convict.

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