Taking a Bite Out of Bite-Mark Analysis
Last week, a post on bullying and false bullying claims was published on this site. It might seem weird at first to have a bullying post on a lawyer’s blog. This is because ordinarily, bullying is not something about which you should contact a lawyer about. There are multiple reasons, however, why it was published.
A new law about reporting bullying claims in schools was just signed by the governor after being passed by the General Assembly earlier this year. The Code of Virginia mentions bullying in multiple places and is, therefore, a part of the body of law in Virginia. Plus, it provides another opportunity to discuss flawed forensic science, like bite-mark analysis.
Remember Amabella in “Big Little Lies” from last week’s post? The latest evidence of the bullying she is receiving is a bite mark on her shoulder. Now, pretend that Amabella is an adult who has been assaulted. As part of that assault, there are signs of bite marks on her shoulder. Could those bite marks be used to prove who bit her?
It depends on who you ask. Prosecutors will usually say yes. In fact, bite-mark analysis has often been used as a kind of forensics known as "pattern matching" and has been in existence since the 1970s. Forensic experts take teeth molds from a suspect and use them to determine if they match the bite.
Problems with Bite-Mark Analysis:
Slowly, momentum is gaining to remove bite-mark analysis as a legitimate form of forensic science. In 2009, the National Academy of Sciences (NAS) published a report that decried the use of bite-mark analysis. Furthermore, the National Association of Criminal Defense Lawyers (NACDL) is attempting to remove the use of bite-mark analysis in courtrooms. Before leaving office in January 2017, then-President Obama’s Council of Advisors on Science and Technology “concluded that forensic bite-mark evidence is not scientifically valid and is unlikely ever to be validated.” In a separate conference, one of the officials on the council called for bite-mark analysis to be “eradicated,” according to Forensic Magazine.
The flaws are evident. The Innocence Project, as of 2015, had accomplished exonerations for 24 people because of faulty analysis. Remember the post on exonerations earlier this month? One of the four exonerations of Virginia residents last year – Keith Harward – was from a case built on bite-mark analysis. It turns out that the forensics in that case led to an incorrect conclusion. DNA evidence proved Harward’s innocence.
Will Bite-Mark Analysis Go Away?
It will be an uphill battle. Despite a lack of uniformity on how bite-mark analysis works, “no court has rejected bite-mark evidence,” according to the Richmond Times-Dispatch. Prosecutors are still interested in using this form of forensics and will be slow to allow its universal removal from the courtroom.
The dominoes are starting to fall. In the meantime, it is something that could still hurt citizens’ chances in court. If you are entering into a criminal case that is using bite-mark analysis as part of its evidence against you, you need a defense attorney who knows how to question the “science.” If this is you, call or e-mail today for a free consultation!
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