Bite Mark Evidence, Should it be Used in Court Cases?

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2 years ago

I have written several articles law enforcement. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on Law Enforcement.

In May 1992, Noxubee County, Mississippi, was rocked by the discovery of the body of three-year-old Christine Jackson in a creek about 500 yards from her home. Two nights before, Jackson had been taken from her home in the middle of the night, raped and murdered.

Police found no signs of forced entry, which led them to suspect that the person who abducted the child must have been in the home. Police ignored the fact that a window near the child’s bed was broken and, therefore, could not be locked for safety. They soon arrested Kennedy Brewer, Jackson’s mother’s boyfriend.

Though a semen sample was recovered from the girl’s body, it was insufficient for DNA testing at the time. So the prosecution focused on the 19 marks found on the child’s body, which medical examiner Steven Hayne said he believed to be bite marks. Hayne called on Dr. Michael West, a forensic odontologist, to examine the marks on the girl’s body.

Dr. West was certain that the marks on Jackson’s body came from teeth and that those teeth “indeed and without a doubt” belonged to Brewer.

In fact, Dr. West matched Brewer’s teeth to the marks on Jackson’s body and excluded all other potential sources, a degree of certainty that is simply impossible because bite mark evidence has never been scientifically validated. Bite mark “experts” cannot even agree on the answer to the most basic of questions: Was this injury caused by teeth?

Despite conflicting testimony from another forensic dentist, Brewer was convicted and sentenced to death, almost entirely on Dr. West’s testimony.

Brewer, who is featured in Netflix’s new documentary series “The Innocence Files,” spent 15 years in prison, seven of those years on death row, for a crime he did not commit. In 2008, he and Levon Brooks, a man convicted of a very similar crime that also took place in Noxubee County two years before Jackson’s murder, were exonerated together with the help of the Innocence Project.

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people have been wrongfully convicted based on bite mark evidence (The Innocence Project)

Bite marks played a key role in the wrongful convictions of both Brewer and Brooks. At least 24 other people have been wrongfully convicted, arrested, or charged based on the use of bite mark evidence, but there are likely many more innocent people behind bars because of the use of this discredited science. Here’s everything you should know about bite mark evidence.

Bite mark analysis has never been validated

In 2009, the National Academy of Sciences released a groundbreaking report detailing problems with many forensic techniques in use in criminal proceedings. The report raised issues about the “substantial rates of erroneous results” in forensic disciplines including bite marks, and highlights its lack of scientific validation.

Six years after this report, Drs. Iain Pretty and Adam Freeman, the former president of the American Board of Forensic Odontology (ABFO), alarmed by an uptick in wrongful convictions based on bite mark analysis, set out to determine whether they could establish the reliability of their work. They carried out a study which asked ABFO-certified dentists to use a “decision tree” to analyze sets of bite marks — some from their own case files. Among other basic questions, they were asked to determine whether they were looking at a “bite mark,” something “suggestive of a bite mark,” something that was “not a bite mark,” or whether they had insufficient information to make a determination.

In all but a few cases, participants could not agree on whether or not they were looking at a bite mark.

“That was so horrifying. If experts can’t agree on the answer to that initial question: Is this or is this not a bite mark? That should trouble anybody,” Dr. Freeman emphasized.

After years of practicing bite mark analysis, Dr. Freeman decided that day to stop. Unlike Dr. West, who consistently used definitive language in proclaiming injuries to be bite marks on multiple occasions, Dr. Freeman said he never once felt comfortable enough to testify about the probability of a bite mark “match” in any case.

“If experts can’t agree on the answer to that initial question … That should trouble anybody.”

Dr. Adam Freeman Former President of the American Board of Forensic Odontology (ABFO)

Dr. Freeman continues to work as a dentist and forensic odontologist, examining teeth and dental records to help identify bodies in cases such as mass disasters, and testifying in court about the lack of scientific validity underlying bite mark evidence. He also appears in “The Innocence Files.”

But Dr. Freeman hasn’t been the only one to reject the use of bite mark analysis. Dr. Pretty, Dr. Cynthia Brzozowski and many other forensic dentists have also come to reject the discipline as unreliable.

Additionally, the Texas Forensic Science Commission called for an end to the use of bite mark testimony in criminal trials in 2016, after conducting a six-month investigation into its usage and determining that it “does not meet the standards of forensic science.” The move came after the Texas Court of Appeals vacated the murder conviction of Steven Chaney, whose wrongful conviction was based nearly entirely on bite mark evidence. Still, bite mark evidence continues to be admissible in courts across the country.

The problem with bite marks

Human dentition — the way in which our teeth are arranged — has not been proved to be unique to each individual. But, more fundamentally, the problem with using bite marks on bodies to identify perpetrators of crimes is that skin is a terrible recording medium for a bite mark.

In the Brewer case, Dr. West not only wrote in his report that the marks on the victims’ bodies were human bite marks, but that he was sure that they belonged to Brewer. As explained in “The Innocence Files,” the marks were likely left by crawfish that bit Jackson’s body after she was left in the creek.

It’s hard to determine the source of marks on a body because “what we’re looking at isn’t actually a bite mark indentation, we’re looking at the bruise that’s left over,” Dr. Freeman explained. “And a bruise doesn’t exactly approximate the teeth that made it because bruises are diffuse areas of blood under the skin … and some people bump into things and bruise easily, and others don’t.”

He added that skin is elastic, and this elasticity varies depending on how much fat a person has in their body or how old they are. Skin also holds tension and releases in different ways as you move, which would affect the impression teeth might leave on a person.

This means that if the same person bit two different people, the impressions or bruises they would leave wouldn’t necessarily match. And the way that these factors impact bite marks have never been studied among living people and likely never will be.

“You’re never going to get approval to do a study where you say, I’m going to bite 1,000 people and some of those people are going to have cancer or diabetes or sickle cell anemia, some of those people are going to be Black and white and Greek,” Dr. Freeman said.

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people exonerated since 1989 were wrongfully convicted based on false or misleading forensic evidence. (National Registry of Exonerations)

Why is bite mark evidence still being used?

“The scientific evidence is really clear that bite mark evidence can never be used,” Innocence Project strategic litigation staff attorney Dana Delger said. “But what we see in bite mark cases — what we see in discredited science cases generally — is that there’s an extreme mismatch between the law and science, and how they work together in the law.”

Courts generally look back on the previous decisions of other courts for reference when determining how to apply law, Delger explained.

“The notion is that the law shouldn’t really change very much — if that was the law yesterday, then it should be the law today, and it’ll be the law tomorrow — but that isn’t how science works at all,” she said.

Science changes rapidly with new information and research, but laws do not. That is one of the major hurdles in keeping bite mark comparison evidence out of criminal proceedings. And despite the rising chorus of voices in the scientific community and beyond calling out the unvalidated use of bite marks, some continue to believe in bite mark evidence and the ABFO still supports its use.

“That kind of recalcitrance can make it really hard to fight the battles we need to fight to exonerate our clients,” Delger said.

Eddie Lee Howard is one of these clients. Howard was convicted of the 1992 rape and murder of an 84-year-old woman in Mississippi. Though he always maintained his innocence, he was convicted in 1994 and sentenced to death.

Howard’s conviction was largely based on the testimony of Hayne and Dr. West — the same so-called experts who testified in Brewer’s case. Initially, Hayne did not report seeing bite marks on the body. However, after then-district attorney Forrest Allgood — also the prosecutor in Brewer and Brooks’ cases — identified Howard as the primary suspect in the case, Hayne said he had seen marks that could be bite marks. The victim’s body, which had already been buried at this point, was then exhumed and examined by Dr. West, who proclaimed that the marks were indeed bite marks and that they matched Howard.

“The scientific evidence is really clear that bite mark evidence can never be used.”

Dana Delger Innocence Project Strategic Litigation Staff Attorney

Just two years later, Dr. West became the first person to be suspended from the ABFO, and by 2006 he was forced to resign from the American Board of Forensic Pathology. Still, that same year, in response to an appeal, the Mississippi Supreme Court wrote of Dr. West’s testimony in Howard’s case: “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.”

But the Innocence Project and the Mississippi Innocence Project continued to push for DNA testing of crime scene evidence. Tests done on the knife used in the crime and the victim’s nightgown in 2014 provided further evidence of Howard’s innocence. Yet, he remains on death row today for a crime he did not commit because wrongful convictions are so difficult to overturn. The Innocence Project is still fighting for justice on Howard’s behalf, and his appeal is currently being considered by the Mississippi Supreme Court.

Nearly a quarter of the 2,601 people who have been exonerated since 1989 were wrongfully convicted based on false or misleading forensic evidence, like bite marks, according to the National Registry of Exonerations.

How to end to the use of bite mark evidence

By adopting changed science statutes, states can pave the way for people wrongfully convicted based on bite mark evidence to seek justice. Such statutes create a path for innocent people to bring their cases back into court when the science used to convict them has changed or, as in the case of bite marks, been invalidated.

So far, six states — California, Connecticut, Michigan, Nevada, Texas and Wyoming — have adopted “change in science” statutes or court rulings to set this precedent after the Innocence Project and members of the Innocence Network lobbied for these crucial reforms. And you, too, can play a role in advancing justice by advocating for these legislative changes when such bills are being considered by your lawmakers.

While changed science statutes enable people who are wrongfully convicted to come back to court to have their cases reviewed, they don’t prevent people from being wrongfully convicted based on flawed forensic science in the first place.

Though the science behind bite marks has been debunked, it continues to be used in courts. And when presented as scientific evidence by so-called experts in court, bite marks seem to offer jurors a false sense of certainty.

Part of the problem, Delger said, is that most lawyers — defense attorneys and prosecutors — and judges aren’t versed in the science behind the evidence. But they should be.

“If you want to not only change what’s happening with bite marks, but to stop the next bite marks from getting into court, that requires judges to be extremely skeptical and thorough when they are considering the admission of scientific evidence,” Delger said.

“The stories of the men and women that have been exonerated, who were convicted based on what we now know to be faulty evidence, tell us that that is something we have an obligation to do — to really get in and understand the science so we can know whether we’re using something good or bad.”

Bite mark analysis has no basis in science, experts now say. Why is it still being used in court?

“It’s garbage,” said Keith Harward, who spent 33 years in prison for rape and murder based on bite mark evidence before DNA exonerated him.

Even now, as a free man, Keith Harward finds it hard to explain what it was like to sit in a courtroom, on trial for a rape and murder he knew he didn’t commit, watching someone considered an expert testify with certitude that bite marks on the victim’s leg matched his teeth.

“I still to this day wonder what the hell just went on,” he told NBC News at his home in North Carolina. “Sometimes I break down and bawl, because I can’t explain to you or anybody else, other than people who’ve been in my situation.”

No evidence connected Harward to the horrific 1982 crime, but he happened to be among a group of sailors from a Navy ship in dry dock in Newport News, Virginia, who were required to give dental impressions, since the assailant had been wearing a Navy uniform. Two forensic dentists told two separate juries that Harward’s teeth matched “to a scientific certainty” a bite mark on the rape victim’s skin. Harward spent 33 years in prison until, with the help of the Innocence Project, he was exonerated in 2016 by DNA evidence that pointed to another sailor as the killer.

Keith Harward talks to reporters as he is released from Nottoway Correctional Center in Burkeville, Va., on April 8, 2016.Daniel Sangjib Min / Richmond Times-Dispatch via AP file

The Innocence Project says Harward is among at least 36 people who have been exonerated after having been wrongfully convicted based on now-debunked bite mark comparisons. One of them, Eddie Lee Howard, was on death row in Mississippi when he was freed in 2021 after crime scene DNA was matched to someone else.

Four separate governmental scientific bodies have concluded that bite mark analysis has no basis in science. That includes the President’s Council of Advisors on Science and Technology, which said in 2016 that “available scientific evidence strongly suggests that examiners not only cannot identify the source of bitemark with reasonable accuracy, they cannot even consistently agree on whether an injury is a human bitemark.” The National Institute of Standards and Technology, the gold standard of measurement science, said in 2022 that bite mark forensics “lacks a sufficient scientific foundation” because “human dental patterns have not been shown to be unique at the individual level.”

One 2016 study found that self-described experts couldn’t distinguish between human and animal bite marks. Others have documented how marks in human skin change over time through healing or decomposition.

“People that were board certified did not agree about what a bite mark was,” said Adam Freeman, a forensic dentist who once “drank the Kool-Aid” of bite mark analysis but has since become one of its biggest critics within the profession. “If a science is not a science, and it’s not reproducible, and it’s not reliable, courts of law should not allow it in, period.”

A photo of a mold of Keith Harward’s teeth used in his trial.Court exhibit

Yet bite mark analysis has been used in thousands of cases. And while it has increasingly been successfully challenged by defense lawyers, no court has ruled it inadmissible.

“There are still many people — and we don’t even know how many — still in jails because of bite mark testimony,” Freeman said. “It really is horrifying that this still is allowed to be used in courts of law, where these are issues of life and liberty.”

Chris Fabricant, an Innocence Project lawyer and author of “Junk Science and the American Criminal Justice System,” said his team has consistently blocked the introduction of bite mark evidence in courts around the country, even as it continues to seek the exoneration of defendants imprisoned based on the discredited discipline. But he said none of the forensic dentists who testified based on what are now discredited methods have been held accountable.

“My sense of outrage is what gets me out of bed every day,” he said.

Freeman said, “I can tell you that literally thousands of human years have been spent in jail” based on faulty testimony.

Bite mark photos used in the trial of Keith Harward.Court exhibit

There is no data showing how often bite marks have been used in prosecutions. Anecdotal evidence suggests that the number has declined steeply, but that prosecutors still sometimes try to introduce bite marks at trial.

Professional associations of forensic odontologists responded to the NIST report by saying that while they agree with “many details” in the report and “know the issues surrounding bitemarks and acknowledge past concerns,” the NIST’s rejection of bite mark evidence is too broad.

“Critics continue to overlook the strides made … by forensic odontology to address these concerns. It is crucial to reiterate that the cases where odontologists misidentified bite perpetrators occurred in the 1980s and 1990s. Today’s odontologists do not adhere to the standards that were in place during that era, yet we continue to be judged by them.”

‘It is a nasty place’

Charles McCrory is spending his 38th year behind bars, convicted of killing his wife. The bite mark expert in his case recanted his testimony, saying he now knows he cannot say whether a bite mark on the victim matched McCrory’s teeth. Yet the Alabama courts have declined to free McCrory.

Charles McCrory.Alabama Department of Corrections

Alabama’s Court of Criminal Appeals ruled earlier this year that the jury was capable of deciding on its own whether the bite marks matched, a finding that ignores science suggesting such perceived visual matches cannot be valid. The court also cited other evidence in the case, including a witness who said he saw McCrory’s truck at the house during the time of the murder. No physical or forensic evidence links him to the crime.

Three years ago, after the bite mark evidence in his case collapsed, McCrory was offered a deal: Plead guilty and walk free. He refused.

“I refused to take it because I didn’t kill her,” McCrory told NBC News from his prison facility. “I did not kill my wife.”

A photo presented as evidence of a bite mark in the trial of Charles McCrory. A penny is used to show scale.Court exhibit

The Innocence Project is now pursuing appeals through the federal courts.

“Prison is hard — a lot of the stories that you see on the news about prisons, particularly Alabama prisons, are true,” McCrory said. “It is a nasty place, and it’s not a place I would wish on anyone.”

“I don’t give up hope,” he said. “And certainly there’s days of disappointment and days when you’re down and out … but I just believe that somewhere there’s a truth in this that will come out, and you can’t give up. That’s just not an option.”

Harward, released in 2016, is living proof that a second act is possible after decades spent wrongfully locked up. Awarded $1 million in compensation by Virginia, the 67-year-old lives quietly in rural North Carolina, taking occasional RV trips with his girlfriend and puzzling over smartphones and social media.

But he also continues to speak out about bite mark evidence, which robbed him of half his life and kept him from attending his parents’ funerals.

“It’s garbage. It’s crap. It doesn’t mean anything,” he said.

A few years ago, he traveled to a conference of forensic dentists in New Orleans to confront them about bite marks. Many were sympathetic, he said, but there is an old guard that clings to the past.

“How many times do you have to be told you’re wrong before you give it up?” he said.

WHISTLING PAST THE GRAVEYARD: WHY IT’S SO HARD TO RID THE COURTS OF JUNK SCIENCE

A new book by the Innocence Project’s Chris Fabricant charts the rise and fall of bite-mark evidence and “science” in the service of law enforcement.

STEVEN MARK CHANEY had nine alibi witnesses. From morning to night, his movements on June 21, 1987, were well documented. Nonetheless, he was convicted and sentenced to life in prison for the murders of John and Sally Sweek, drug dealers Chaney had previously bought cocaine from and to whom he supposedly owed $500 — his alleged motive for brutally murdering them that day in their Dallas, Texas, apartment. There was nothing to tie him to the crime, save for a supposed bite mark found on John’s arm that several forensic dentists said matched Chaney’s dentition.

Bite-mark evidence rests on a deceptively simple foundation: that human dentition is as unique as DNA; that skin is a suitable substrate to record that alleged uniqueness; and that forensic dentists are adept at identifying wounds, usually bruises or abrasions, that have been made by teeth and then determining whose teeth did the biting. As it turns out, none of these claims are supported by any research, and today bite-mark evidence, which has led to at least 35 wrongful convictions and indictments, is considered junk science.

But while science has discredited the practice, bite-mark analysis is still admissible in many courts. Once a form of evidence is accepted by a judge, legal precedent makes it incredibly difficult to keep even the most questionable forensic practices out of court.

When Chris Fabricant joined the Innocence Project in 2012 to head up its new strategic litigation division, he made it his mission to eradicate bite-mark evidence from criminal cases. In his new book, “Junk Science and the American Criminal Justice System,” Fabricant charts the rise and fall of bite-mark analysis through the group of dentists who created the practice and three of the wrongful convictions that followed, including Chaney’s. He was finally exonerated in 2018. In an interview with The Intercept, Fabricant discussed how bite-mark evidence and other questionable fields of forensic science made their way into the criminal justice system, why they’re so difficult to eradicate, and what can be done about it. This interview has been edited and condensed for clarity.

A lot of people don’t realize that almost all forensic science is created by police. It’s “science” in service of law enforcement. Can you talk about how bite-mark evidence fits into this framework?

I’ve spent 10 years litigating the admissibility of this evidence and finding all the many victims of this junk science. But where did it come from? Who invented this and why? What was unusual about the exploration of bite-mark evidence in junk science is that you can really find the source. The origin story is available in a way that is hard to really pinpoint for most other forensic techniques.

I had to file a lawsuit to get access to the American Board of Forensic Odontology archives, and that’s where I found some of the original source material. There was this idea that maybe you can match teeth to bite marks; people are speculating about it, it was starting to get a little bit in the water, there were some seminars, and some dentists were starting to get into it. I cited this article I found that Dr. Lowell Levine had written, a few years before the first bite-mark case, openly saying that there was no science here but lobbying for a role in the criminal legal system. They needed a case, and they found the case. And then they were off to the races.

That’s the Walter Marx case from the 1970s. Tell us about Marx and the impact that case had on the proliferation of junk science in the criminal legal system.

The People v. Walter Marx is one of the most significant legal opinions in forensic sciences ever published, even though it’s somewhat obscure. And the influence of the Marx case is still reverberating today.

Marx was indicted for murdering his landlord. There was circumstantial evidence pointing to Marx, but no physical evidence. And this victim had a bite that almost took her nose completely off. It was a very unusual bite mark because it was in cartilage. Cartilage will hold the pattern of whatever instrument was used to inflict the injury with much more fidelity than skin. Skin cannot record teeth marks or any other type of instrument that created an injury. So it was a perfect case in that way, and all the problems that are associated with interpreting a bruise on skin were not present. It was still junk, but it wasn’t as junky as what we get into later.

Three dentists testified against Marx. He was convicted based on the bite-mark evidence, which the trial judge allowed into evidence, and then what the court says on appeal about that decision is important and implicates a host of other pattern-matching forensics. What did the opinion say?

The trial judge conceded that this technique had not been researched in a laboratory, the fundamental assumptions had not been tested through scientific research or clinical application. It was simply matching teeth to an injury.

Subsequent to that, the reasoning was adopted, and the Marx case was cited by state supreme courts around the country for the introduction of bite-mark evidence. But beyond that, the same reasoning was applied to many other pattern-matching techniques. And pattern-matching techniques cover a lot of ground, right? You’re talking about fingerprints, you’re talking about firearms, tool marks, shoe prints, tire treads, hair microscopy. The thinking that went into that was, this is not really the type of scientific evidence that we need to be concerned about. It’s simple, it’s not really science, it’s just matching things. That line of reasoning has shielded all these unreliable forensic techniques from real judicial scrutiny.

You describe this as “scientifically illiterate case law” that has obscured the need for rigorous scientific inquiry. Because it’s like, if this practice has been sanctioned by the courts, why in the world would anyone go and conduct foundational research into it? So what has been the impact of scientifically illiterate case law on the trajectory of junk science in the criminal legal system?

You don’t have to look any further than the Charles McCrory case in Alabama, which is going on right now, to see the impact of a terrible decision like People v. Marx. Because People v. Marx was cited in an Alabama case, State v. Hadley, in 1987. And that case was used by the trial court to deny McCrory a new trial in 2022 — even though we have more than 35 wrongful convictions and indictments involving bite-mark evidence — which is astonishing. You can draw a straight line from Marx, who was probably guilty, straight to Charles McCrory, who is definitely innocent.

What we have is the difference between law and science. Science is this process that is always moving forward. Hypotheses are abandoned once they’re falsified. And that’s a continuous process, always improving on the knowledge. And law rests on precedent — precedent that doesn’t advance, or if it does, it’s slow.

The process of science in relation to the process of the way law develops are in direct conflict. And if we’re going to use scientific evidence, we have to do a better job of keeping up with science. And that means not introducing forensic techniques in criminal court unless and until they’ve been scientifically evaluated and demonstrated to be reliable.

We should have something like the Food and Drug Administration that is testing these forensic techniques before they’re used to make life and liberty decisions. We do that with aspirin; we do it with toilet paper. We don’t do it with forensic sciences.

Tell me a bit about how you got involved in Steven Chaney’s case.

When I went to the Innocence Project, the strategic litigation department, I was looking for test cases. I was very interested in focusing on bite marks because it was such an obvious form of junk science. I had put out the word to the defense bar across the country, and we took every bite-mark case we could find. And then Dallas public defender Julie Lesser called me about Steven Chaney’s case and said that a dentist had testified that Chaney’s teeth were a one-in-a-million match. And I was like, this is a case that we’re going to litigate.

Resources

innocenceproject.org, “Why Bite Mark Evidence Should Never Be Used in Criminal Trials: Nearly a quarter of people exonerated since 1989 were wrongfully convicted based on false or misleading forensic evidence, like bite marks.” By Daniele Selby; nbcnews.com, “Bite mark analysis has no basis in science, experts now say. Why is it still being used in court?” By Ken Dilanian and Michael Kosnar; theintercept.com, “WHISTLING PAST THE GRAVEYARD: WHY IT’S SO HARD TO RID THE COURTS OF JUNK SCIENCE A new book by the Innocence Project’s Chris Fabricant charts the rise and fall of bite-mark evidence and “science” in the service of law enforcement.” By Jordan Smith;

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