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.
It would be easy to interpret the six-Justice majority opinion in Biestek v. Berryhill1 as an invitation to agencies to make important decisions based on junk science, i.e., opinions of putative experts that are not supported by reliable data or analysis. I hope that agencies and lower courts resist that interpretation of the case, but it is an entirely plausible interpretation.
No court would admit evidence of the type the ALJ relied on as the basis for his critical finding that there are a significant number of jobs that Biestek can perform. If a district court admitted evidence of that type and relied on it as the basis for a finding in a bench trial, its decision would be summarily reversed on appeal.
The dissenting Justices expressed the hope that lower courts will not interpret the majority opinion as an invitation to uphold all uses of junk science by agencies. They suggested that the majority opinion might be just the first step of many in which the majority will provide agencies and courts with guidance that will discourage, if not eliminate, the risk that they will base their decisions on junk science.19
I hope the optimism of the dissenting Justices proves to be accurate, but it would be easy for lower courts to interpret the majority opinion as an invitation to allow agencies to rely on junk science in virtually all cases. The Court needs to follow Biestek with a series of opinions in which it makes it clear that an agency can rely on the unsupported opinion of a putative expert only in rare circumstances in which the agency has no other viable option and the agency has good reasons to excuse the expert from providing support for the opinion.
The misapplication of forensic science contributed to 52% of wrongful convictions in Innocence Project cases. False or misleading forensic evidence was a contributing factor in 24% of all wrongful convictions nationally, according to the National Registry of Exonerations, which tracks both DNA and non-DNA based exonerations.1
Because shifts in scientific understanding often take decades to emerge, individuals whose wrongful convictions were based on misapplied science might face difficulties in proving their innocence due to time limitations and high evidentiary standards. In addition, some state courts do not recognize discredited scientific evidence as new evidence of a wrongful conviction.
In the legal context, junk science is defined as evidence that is outside of mainstream scientific or medical views. Junk science does not have indicia of reliability and is not generally accepted. Despite the lack of scientific reliability, US courts, expert witnesses and juries are increasingly reliant on junk science in making causation decisions in complex medical liability cases. Courts have accepted junk science even where reliable scientific evidence is available. The United States silicone gel breast implant litigation is a prime example of this phenomenon. The issue of whether silicone breast implants are associated with disease has been a controversial subject for scientists and physicians, an emotional issue for women who have breast implants, and a lucrative business for the lawyers and expert witnesses who are the proponents of junk science. Junk science has provided to juries a quick and convenient explanation for claimed diseases or syndromes which have required years for reliable scientists to conclude are not related to breast implants. The breast implant litigation highlights the often dramatic difference between decisions based upon junk science and decisions grounded in scientific method, fact and reality. Recently, judges involved in the breast implant litigation have become concerned about the use of junk science in light of the growing body of legitimate scientific evidence that breast implants do not cause disease. Several judges have been motivated to take the unique and novel approach of convening scientific panels of independent experts to study the scientific issues and make findings to the court. Through the use of independent scientific experts, several judges have meaningfully assessed the evidence that the litigants present and have prevented or strictly limited the use of junk science in the courtroom. Using this procedure, other judges are weighing the evidence for future cases. This paper will briefly explore the background of mass tort medical products litigation and the development of junk science. The paper will then focus on the history of the breast implant litigation and the steps that the courts have already taken to combat junk science, including the use of scientific panels.
After that, they hit the jackpot. I devote a chapter to Ted Bundy. Mainstream media has been a huge problem in terms of perpetuating the myth of infallible forensic sciences. The media culture that has been built up in the post-World War II era has perpetuated this myth, and if you look back at the most well known junk sciences, much of it has been propelled by sensational trials. And bite mark evidence was central to the Ted Bundy case, because in the end, shockingly, there was really no other evidence to convict him the first time that he had been arrested right after the so-called Chi Omega murders.
Behind the lab, in a large office, MacDonell carefully catalogs his legacy. A thick book details every student who attended a Bloodstain Evidence Institute. A glass display case showcases mementos from police departments across the country. Stacks of VHS tapes chronicle courtroom triumphs and TV appearances.
Erroneous convictions, like most catastrophic mistakes in the criminal justice system, are rarely caused by a single identifiable act or weakness. Instead, multiple failures in the process can lead to a negative outcome. Of the 133 DNA exonerations, 98 percent also involved two to five additional contributing factors (see table 2). Only 2 percent (three cases) cited forensic science as the sole contributing factor. The largest number, 36 percent (48 cases), included forensic science and two additional factors.
State courts, however, can only reexamine faulty scientific evidence, and reverse unconstitutional convictions, if the legislature provides the tools to do so. One such tool is the ability to review post-conviction relief petitions based specifically on faulty science, a tool known as changed science writs.
State courts, however, can only reexamine faulty scientific evidence, and reverse unconstitutional convictions, if the legislature provides the tools to do so. One such tool is the ability to review post-conviction relief petitions based specifically on faulty science.
In the context of changed science writs, the question arises whether these writs should include relief for scientific evidence in other realms, such as eyewitness identification and false confessions. Notably, the Supreme Court has been reluctant to recognize and acknowledge scientific studies over the past forty years that demonstrate the unreliability of traditional eyewitness protocols; the Court has likewise abstained from requiring updated procedures for police and for courts in admitting the evidence. Some states have independently established greater requirements for reliability by creating state rules of evidence, state legislation enshrining best practices for police protocols, and state case precedent for ensuring more accurate eyewitness identifications with police and in courtrooms. However, for states that have to date failed to recognize the changed science of eyewitness identifications and false confessions, a changed science writ may free state courts to genuinely and substantively reevaluate scientific evidence. This Article acknowledges, but does not answer, that question.
And yet this evidence is regularly admitted in criminal trials, in part due to a lack of robust pretrial discovery. The PCAST Report, like the NAS Report, implored the criminal justice system to reexamine thoughtless admission of forensic evidence at trial and issued recommendations to ensure that criminal courts only admitted scientifically valid and reliable evidence. Notably, the Department of Justice refused to adopt the PCAST Report recommendations, and the Federal Bureau of Investigation objected to many PCAST Report findings.
Given the causal connection between court admissibility of flawed forensic evidence and resulting wrongful convictions, this next Part imperatively addresses key advancements in forensic science disciplines and accountability. As these disciplines gain reliability and accuracy, courts will see fewer wrongful convictions. Since the National Academy of Sciences report in 2009, avenues for ensuring greater reliability have been pursued, dropped, rejected, and stalled. This Part details advancements and encourages further work and effort down these avenues.
Finally, the TFSC has explicitly advised against the use of bite mark evidence in Texas, recommending that bite mark evidence not be admitted in criminal cases in 2016 at its current stage of unreliability. The TFSC conducted a systemic review of bite mark cases in Texas to determine if there