Forensic bitemark identification: weak foundations, exaggerated claims

Michael J Saks¹, Thomas Albright², Thomas L Bohan³, Barbara E Bierer⁴, C Michael Bowers⁵, Mary A Bush⁶, Peter J Bush⁷, Arturo Casadevall⁸, Simon A Cole⁹, M Bonner Denton¹⁰, Shari Seidman Diamond¹¹, Rachel Dioso-Villa¹², Jules Epstein¹³, David Faigman¹⁴, Lisa Faigman¹⁵, Stephen E Fienberg¹⁶, Brandon L Garrett¹⁷, Paul C Giannelli¹⁸, Henry T Greely¹⁹, Edward Imwinkelried²⁰, Allan Jamieson²¹, Karen Kafadar²², Jerome P Kassirer²³, Jonathan 'Jay' Koehler²⁴, David Korn²⁵, Jennifer Mnookin²⁶, Alan B Morrison²⁷, Erin Murphy²⁸, Nizam Peerwani²⁹, Joseph L Peterson³⁰, D Michael Risinger³¹, George F Sensabaugh³², Clifford Spiegelman³³, Hal Stern³⁴, William C Thompson³⁵, James L Wayman³⁶, Sandy Zabell³⁷, Ross E Zumwalt³⁸

Affiliations

¹ Regents Professor, Arizona State University, Phoenix, AZ, USA.
² Professor and Conrad T. Prebys Chair, Salk Institute for Biological Studies, La Jolla, CA, USA.
³ President of the Forensic Specialties Accreditation Board, CO, USA.
⁴ Professor of Medicine, Harvard Medical School, Boston, MA, USA, and Brigham and Women's Hospital, Boston, MA, USA.
⁵ Associate Clinical Professor, Ostrow School of Dentistry of USC, Los Angeles, CA, USA.
⁶ Associate Professor, SUNY at Buffalo School of Dental Medicine, Buffalo, NY, USA.
⁷ Director, South Campus Instrument Center at the State University of New York School of Dental Medicine, New York, NY, USA, and Adjunct Professor of Art Conservation, Buffalo State College, Buffalo, NY, USA.
⁸ Bloomberg Distinguished Professor and chair of the Molecular Microbiology and Immunology Department, Johns Hopkins School of Public Health, Baltimore, MD, USA.
⁹ Professor of Criminology, Law & Society, University of California, Irvine, USA.
¹⁰ Galileo Professor of Chemistry and Professor of Geological Sciences, University of Arizona, Tucson, AZ, USA.
¹¹ Howard J. Trienens Professor of Law and Professor of Psychology, Northwestern University, Chicago, IL, USA.
¹² Senior Lecturer, School of Criminology and Criminal Justice, Griffith University, Mt Gravatt, QLD, Australia.
¹³ Professor of Law, Beasely School of Law, Temple University, Philadelphia, PA, USA.
¹⁴ Acting Chancellor and Dean and the John F. Dagardi Distinguished Professor of Law, University of California Hastings College of the Law, San Francisco, CA, USA.
¹⁵ Lecturer in Law, University of California Hastings College of the Law, San Francisco, CA, USA.
¹⁶ Maurice Falk University Professor of Statistics and Social Science (emeritus), Carnegie Mellon University, Pittsburgh, PA, USA.
¹⁷ Professor of Law, University of Virginia, Charlottesville, VA, USA.
¹⁸ Distinguished University Professor and the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law, Case Western Reserve University, Cleveland, OH, USA.
¹⁹ Deane F. and Kate Edelman Johnson Professor of Law and Professor, by courtesy, of Genetics, Stanford University, Stanford, CA, USA.
²⁰ Edward L. Barrett, Jr. Professor of Law Emeritus, University of California, Davis, USA.
²¹ Director, The Forensic Institute in the UK, Glasgow, UK, Professor of Forensic Sciences (visiting), Staffordshire University, Stoke on Trent, UK, and University of West Scotland (honorary), Scotland, UK.
²² Commonwealth Professor & Chair of Statistics, University of Virginia, Charlottesville, VA, USA.
²³ Distinguished Professor of Medicine, Tufts University School of Medicine. Boston, MA, USA.
²⁴ Beatrice Kuhn Professor of Law, Northwestern Pritzker School of Law, Chicago, IL, USA.
²⁵ Consultant, Department of Pathology, Massachusetts General Hospital, Boston, MA, UK, and Professor of Pathology at Harvard Medical School, Cambridge, MA, USA.
²⁶ Dean, UCLA School of Law, Los Angeles, CA, USA.
²⁷ Associate Dean for Public Interest & Public Service Law, George Washington University Law School, Washington, DC, USA.
²⁸ Professor of Law, New York University School of Law, New York, NY, USA.
²⁹ Chief Medical Examiner, Tarrant County, Texas, Fort Worth, TX, USA.
³⁰ Recently retired Professor, School of Criminal Justice and Criminalistics, California State University, Los Angeles, USA.
³¹ Professor of Law, Seton Hall University School of Law, Newark, NJ, USA.
³² Professor Emeritus of Biomedical and Forensic Sciences, School of Public Health, University of California, Berkeley, CA, USA.
³³ Distinguished Professor of Statistics, Texas A&M University, College Station, TX, USA.
³⁴ Ted and Janice Smith Family Foundation Dean and Professor, Department of Statistics, University of California, Irvine, USA.
³⁵ Department of Criminology, Law & Society, Department of Psychology and Social Behavior, and the School of Law (affiliated), University of California, Irvine, USA.
³⁶ Office of Research, San José State University, CA, USA.
³⁷ Professor of Mathematics and Statistics, Northwestern University, Evanston, IL, USA.
³⁸ Forensic Pathologist, New Mexico Office of the Medical Investigator, Professor of Pathology at the University of New Mexico School of Medicine, Albuquerque, NM, USA.

PMID: 28852538
PMCID: PMC5570687
DOI: 10.1093/jlb/lsw045

Forensic bitemark identification: weak foundations, exaggerated claims

Michael J Saks et al. J Law Biosci. 2016.

. 2016 Nov 23;3(3):538-575.

doi: 10.1093/jlb/lsw045. eCollection 2016 Dec.

Authors

Affiliations

¹ Regents Professor, Arizona State University, Phoenix, AZ, USA.
² Professor and Conrad T. Prebys Chair, Salk Institute for Biological Studies, La Jolla, CA, USA.
³ President of the Forensic Specialties Accreditation Board, CO, USA.
⁴ Professor of Medicine, Harvard Medical School, Boston, MA, USA, and Brigham and Women's Hospital, Boston, MA, USA.
⁵ Associate Clinical Professor, Ostrow School of Dentistry of USC, Los Angeles, CA, USA.
⁶ Associate Professor, SUNY at Buffalo School of Dental Medicine, Buffalo, NY, USA.
⁷ Director, South Campus Instrument Center at the State University of New York School of Dental Medicine, New York, NY, USA, and Adjunct Professor of Art Conservation, Buffalo State College, Buffalo, NY, USA.
⁸ Bloomberg Distinguished Professor and chair of the Molecular Microbiology and Immunology Department, Johns Hopkins School of Public Health, Baltimore, MD, USA.
⁹ Professor of Criminology, Law & Society, University of California, Irvine, USA.
¹⁰ Galileo Professor of Chemistry and Professor of Geological Sciences, University of Arizona, Tucson, AZ, USA.
¹¹ Howard J. Trienens Professor of Law and Professor of Psychology, Northwestern University, Chicago, IL, USA.
¹² Senior Lecturer, School of Criminology and Criminal Justice, Griffith University, Mt Gravatt, QLD, Australia.
¹³ Professor of Law, Beasely School of Law, Temple University, Philadelphia, PA, USA.
¹⁴ Acting Chancellor and Dean and the John F. Dagardi Distinguished Professor of Law, University of California Hastings College of the Law, San Francisco, CA, USA.
¹⁵ Lecturer in Law, University of California Hastings College of the Law, San Francisco, CA, USA.
¹⁶ Maurice Falk University Professor of Statistics and Social Science (emeritus), Carnegie Mellon University, Pittsburgh, PA, USA.
¹⁷ Professor of Law, University of Virginia, Charlottesville, VA, USA.
¹⁸ Distinguished University Professor and the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law, Case Western Reserve University, Cleveland, OH, USA.
¹⁹ Deane F. and Kate Edelman Johnson Professor of Law and Professor, by courtesy, of Genetics, Stanford University, Stanford, CA, USA.
²⁰ Edward L. Barrett, Jr. Professor of Law Emeritus, University of California, Davis, USA.
²¹ Director, The Forensic Institute in the UK, Glasgow, UK, Professor of Forensic Sciences (visiting), Staffordshire University, Stoke on Trent, UK, and University of West Scotland (honorary), Scotland, UK.
²² Commonwealth Professor & Chair of Statistics, University of Virginia, Charlottesville, VA, USA.
²³ Distinguished Professor of Medicine, Tufts University School of Medicine. Boston, MA, USA.
²⁴ Beatrice Kuhn Professor of Law, Northwestern Pritzker School of Law, Chicago, IL, USA.
²⁵ Consultant, Department of Pathology, Massachusetts General Hospital, Boston, MA, UK, and Professor of Pathology at Harvard Medical School, Cambridge, MA, USA.
²⁶ Dean, UCLA School of Law, Los Angeles, CA, USA.
²⁷ Associate Dean for Public Interest & Public Service Law, George Washington University Law School, Washington, DC, USA.
²⁸ Professor of Law, New York University School of Law, New York, NY, USA.
²⁹ Chief Medical Examiner, Tarrant County, Texas, Fort Worth, TX, USA.
³⁰ Recently retired Professor, School of Criminal Justice and Criminalistics, California State University, Los Angeles, USA.
³¹ Professor of Law, Seton Hall University School of Law, Newark, NJ, USA.
³² Professor Emeritus of Biomedical and Forensic Sciences, School of Public Health, University of California, Berkeley, CA, USA.
³³ Distinguished Professor of Statistics, Texas A&M University, College Station, TX, USA.
³⁴ Ted and Janice Smith Family Foundation Dean and Professor, Department of Statistics, University of California, Irvine, USA.
³⁵ Department of Criminology, Law & Society, Department of Psychology and Social Behavior, and the School of Law (affiliated), University of California, Irvine, USA.
³⁶ Office of Research, San José State University, CA, USA.
³⁷ Professor of Mathematics and Statistics, Northwestern University, Evanston, IL, USA.
³⁸ Forensic Pathologist, New Mexico Office of the Medical Investigator, Professor of Pathology at the University of New Mexico School of Medicine, Albuquerque, NM, USA.

PMID: 28852538
PMCID: PMC5570687
DOI: 10.1093/jlb/lsw045

Abstract

Several forensic sciences, especially of the pattern-matching kind, are increasingly seen to lack the scientific foundation needed to justify continuing admission as trial evidence. Indeed, several have been abolished in the recent past. A likely next candidate for elimination is bitemark identification. A number of DNA exonerations have occurred in recent years for individuals convicted based on erroneous bitemark identifications. Intense scientific and legal scrutiny has resulted. An important National Academies review found little scientific support for the field. The Texas Forensic Science Commission recently recommended a moratorium on the admission of bitemark expert testimony. The California Supreme Court has a case before it that could start a national dismantling of forensic odontology. This article describes the (legal) basis for the rise of bitemark identification and the (scientific) basis for its impending fall. The article explains the general logic of forensic identification, the claims of bitemark identification, and reviews relevant empirical research on bitemark identification-highlighting both the lack of research and the lack of support provided by what research does exist. The rise and possible fall of bitemark identification evidence has broader implications-highlighting the weak scientific culture of forensic science and the law's difficulty in evaluating and responding to unreliable and unscientific evidence.

Keywords: admissibility; bite mark; expert evidence; forensic science.

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