Chapter 9 - Bitemark Evidence and Miscarriages of Justice

Abstract

This chapter provides an overview of the adversarial process in the U.S. criminal justice system regarding a specific type of scientific evidence used to convict defendants: bitemark identification. This subset of forensic odontology (dentistry) principally identifies humans from dental records. Dentists call it “shape analysis” when testifying in criminal courts, but the forensic field considers it “pattern analysis.” The scenario involves the courts’ slow response to scientific advances, which reflects poorly on this long-accepted method of an outdated and flawed forensic “discipline.” Bitemark proponents are currently battling for survival against both new science (DNA and other research) and their record of assisting in wrongful convictions and incarcerations. Simply put, they have misidentified innocent criminal defendants for decades. Unfortunately, the battle is being fought in a piecemeal manner (case by case) due to the multistructured U.S. court system and lax judicial forensic quality control, because there is no federal governmental oversight on forensic science of this type of “impression evidence.” Each state’s court system being independent (i.e., each has its own case law and attitudes of accepting forensic evidence) and constitutionally allowed to support or reject forensic evidence prevents a global decommissioning or eliminating judicial admission of this type of evidence. Coupled with this lack of technical and scientific oversight, prosecutors are also immune from legal scrutiny and sanctions when they continue to use bitemark evidence as proof of guilt. Nor do they admit mistakes when their bitemark cases have been quashed on appeal, the convictions vacated, and the defendant exonerated. The appellate system in some cases has responded to the availability of postconviction DNA science to quash prosecutorial bitemark evidence used at trial and to overturn convictions. As previously mentioned this is reflected in the exoneration cases. However, this new evidence is commonly opposed by prosecutors in postconviction appeals. They present arbitrary excuses and ill-founded theories of continued guilt that perpetuate the legal debate for years in many cases. To date, no U.S. court has been capable of undertaking a legitimate scientifically relevant inquiry and determining this type of evidence is invalid. This is despite decades of criticism and bad cases.