FORENSICS and LAW in FOCUS @ CSIDDS | News and Trends

Today’s subject is a brief look back at how pattern evidence from bruised human skin got into the case law of every state in the US. Its not a pretty process, as I describe below.

Scientists learn from their past studies which includes unsuccessful experimentation. The recognition and use old data to construct new theories and experimental hypotheses is part of  scientific progress. But scientific tenets don’t seem to apply to dentists who deal in bitemark IDs. They  liken themselves as still being relevant for courts. One caveat: these days they disappear when DNA is available

Assumptions of personal rather than fact of empirically proven nature were and still are acceptable by judges and rules of evidence. One past AAFS/ABFO president (among other forensic types) said, after the 2009 NAS Report on bitemarks laid out all its “scientific” mumbo-jumbo”, that hard scientific proofs (meaning testing that allows repeatability among numerous research agencies) are unattainable in forensics regarding this type of evidence. Carrying such logic further, this implies courts should still rely on expert testimony founded on opinions of “reasonable certainty.”  I think he forgot how this lawyer-developed certainty of opinion has led to dozens of innocent defendants ending up in prison. Hundreds of bitemark cases from past decades seem cloaked in some “cone of silence” protection created by both the AAFS and its underling bitemark-board, the ABFO.  At this point, all we have are the cases summaries from judicial literature.

Here is one case.

The dentists mentioned in the following 1980 appellate acceptance of the bitemark craft were lauded as “crime fighters.” Their progeny of today wish for a return to glory.

I will just highlight the “reasonable certainty”statements in this often-cited case of expert statements which never have been scientifically proven.  A few comment will be included.

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.”

A typical “I see it, therefore it is” statement.

“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.”

“Dissimilarities” between any purported bite evidence and a suspect are now allowed to be dismissed by merely saying “this is caused by dynamic biting force and pressure. (California v. Eric Frimpong. 2008.)  Defendant was convicted. 

“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.”

Classic statement that has yet to be proven. It hints to the following “leap of faith.”

“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.”

This analogy to fingerprint  comparisons has been used over the decades by bitemark dentists for its powerful effect. It rapidly falls apart, as there has never been a successful study or series of studies on the subject. An attempt in 1986 by the ABFO ultimately was rejected due to lack of repeatability amongst its members. 

“He denied that embalming a body would distort a bite mark.”

Never been tested. Forensic pathologists would find this an amazing statement. Used numerous times in many precedent setting bitemark cases. 

“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 analysis 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.”

Remember this point, Sloan is still “good law” in most states.

Per se, the  title “whistleblower” does not apply to me. I do not work for a governmental or public company. I am a health care provider. I am self employed. I have the “physician do no harm” philosophy  as my mantra. “Practicing” for 39 years has enabled me to marvel over newer and more effective therapeutics for helping patients heal and enjoy themselves. Those years have also allowed me to acquire an aptitude to weed out quackery and ineffective, dangerous, or at least overblown “cures” and “therapies” that frequently arise. I particularly hate the liars, obfuscators and “white wash” experts who hawk their wares to the public who generally trust health professionals.  I have applied this measure of scrutiny during my forensic career as well. For twenty years since DNA profiling began its ascent into the  forensic community. The forensic swags who boasted their forensic wares at the expense of public safety in Monday’s NYT article have been my target for 20 years.

There are numerous safeguards in the health care industry composed of state regulation statutes, audits of treatment records and professional standards which affect compliance and performance to protect the public’s best interests and concerns.

In the forensic science kingdom, there is no governmental oversight. There is a “self rule” environment that has existed since its infancy in pre-WWI Germany, Britain and the US. This is a self policing responsibility that is reflected in the few forensic organizations who volunteer as the protectors of public when forensic science or “non-science” interacts in the criminal justice system. Some of us call these groups “good old boy” social clubs capitalizing on the rampant popularity of CSI “careers” they promote. The biggest of these groups were heavily represented in all of the last five years of Congressional forensic “fact-finding” forays.

So, what happens when some forensic “whack jobs” run amok? Not much of anything as Monday’s NYT piece and the linked Radley Balko 2009 article show too well. Maybe not, if the MS Supreme Court wakes up about Eddie Lee Howard’s case. If they do, it could lead the way for other reversals of “bitemark identification” convictions. IF, the court takes the opinion that the 2009 NAS Report bashing “bitemark identifications” controls the playing field of forensics. That would be a huge leap forward.

If you have the stomach, view the horrors of the “approved method of forensics” seen in Howard (approved by the ABFO until 2013). Tragically, the one case mentioned by the NYT and Balko is NOT the only forensic train-wreck in the ABFO’s portfolio.

Don’t expect the government, or the forensic clubs to do anything proactive. When asked, AAFS reps have responded that theirs is not the proper “forum.” Or that, “we will send it to committee.”  Or, “we are happy to have our elite members participate in the National Forensic Science Commission.” Noteworthy: a recent addition to the NFSC has  been involved in a Louisiana conviction case which later became an exoneration.

One last on criminal justice system. The court’s do not promulgate forensic science changes on the systemic judicial level. Even when a long accepted-in-court forensic method gets the boot by a combination of unacceptable failures and media/public defender opposition. Double especially when the NYT-expressed forensic “short-comings” have permeated criminal cases for decades, as in MS and most states. Its not their job.

BTW, this is not a confession.