Following with my previous blog’s theme of prosecutorial misconduct, here is a recent standout in the NYC courts’ process of determining science-affirmed expert testimony versus ‘forensic’ claptrap of a baser kind. This story exposes how lawyers bend facts to suit their own purposes.
No doubt any court within this jurisdiction could call the following ‘legal advocacy’ on the part of a DA doing her job. I call it reverse logic bias (eg. predispositional bias) which starts with a conclusion, then works back through evidence and opposition concepts to ‘reconstruct the truth’ as a means of prosecutorial attack.
The scenario of this battle involves US courts continuing to accept bitemark probabilities as relevant and reliable evidence. One court in Texas opined that it is “soft science’ subject to acceptance via its believers believing in it. Much like phrenologists (those who profiled criminals from bumps on their skulls) and so on.
This is an excerpt from the fourth article on forensic misconduct and errors published three weeks ago in the Washington Posts’s The Watch. Journalist Radley Balko is talking about portions of DA Mourges’ brief before Judge Wiley. She is pleading for the admissibility of bitemark evidence in the DEAN case.
Mourges’ opposition was composed of research based experts in odontology and statistics. If you read the full 4th article, Mourges is in favor of the
phrenologists dentists extolling their own virtues of science as “working men and women,” (??)
“In another portion of the brief, Mourges selectively quotes part of the report, cutting out some critical language. She writes:
When Dr. Kafadar and her NAS committee created the NAS report, they wrote a summary assessment of forensic odontology. In it they said that “the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail or positive identification …
That ellipsis is important, as is the word that comes before the quote. Here’s the passage quoted in full:
Although the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, and no large population studies have been conducted. In numerous instances, experts diverge widely in their evaluations of the same bite mark evidence, which has led to questioning of the value and scientific objectivity of such evidence.
Bite mark testimony has been criticized basically on the same grounds as testimony by questioned document examiners and microscopic hair examiners. The committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others.
The report only acknowledges the near consensus within the community of bite mark analysts for the purpose of criticizing them. Mourges’s selective quotation implies that the report says the relevant scientific community accepts bite mark matching. The full passage reveals that the report is essentially pointing out just the opposite: The insular community of bite mark analysts may believe in what they do, but the larger scientific community is far more skeptical.”
Maybe a 5th article is in order about some recent research that throws these “working men and women” further into the dustbin regarding reliability.
I applaud your work. I note that the Texas court’s distinction about the level of reliability needed for expert testimony to be permitted into evidence relies on the fact that although nearly all states have adopted Frye or Daubert, essentially none have adopted Kumho Tire. Therefore, the state courts are mostly free to determine what is “science” and therefore what has to undergo scrutiny for reliability.