Bite Mark Evidence Isn’t Reliable But It’s Still Used Against Defendants in Texas

Lots of criminal defense attorneys have their fingers crossed here in Texas, hoping that sooner rather than later everyone is going to acknowledge and understand that bite mark evidence isn’t worthy of respect much less use in a criminal case where someone’s freedom is in jeopardy. For many years, defense lawyers have recognized that evidence of bite marks simply isn’t reliable.

It’s not just bite mark evidence that isn’t reliable — there are other kinds of forensic evidence that we have to argue against in case after case because it’s not worthy of consideration by the fact-finder. For details here, read our earlier posts that include:

• FBI Scandal: Forensic FBI Experts Give False and Flawed DNA Evidence To Get Convictions 
• THE CRUEL REALITY OF CRIMINAL EVIDENCE: IT’S JUST NOT THAT RELIABLE
• Texas Criminal Defense Lawyers Do Not Trust Prosecutor’s Crime Lab Forensic Evidence, When Will Public Become Aware that Crime Lab Results Aren’t Like TV Forensics? 

Nevertheless, bite mark evidence is considered just fine to put before a jury by many lawyers in this country. For instance, the American Bar Association “Trial Practice Bite Mark Evidence” states the following, noting that “given recent DNA exonerations, it is critical that bite mark evidence be challenged”:

Courts have admitted bite mark comparison evidence in homicide, rape, and child abuse cases. In virtually all the cases, the evidence was first offered by the prosecution. A typical case involves the identification of a defendant by matching his dentition with a mark left on the victim. In several cases, however, a victim’s teeth have been compared with marks on a defendant’s body. A few cases have involved bite impressions on foodstuffs found at a crime scene, and one case involved a dog bite. No reported case has rejected bite mark evidence. Indeed, its acceptance is so well established that courts have taken judicial notice of the validity of bite mark evidence.

Bite Mark Evidence Gets Challenged – Finally

The big news this week is that the Innocence Project is pushing the Texas Forensic Science Commission to recognize that bite mark evidence shouldn’t be considered as worthy evidence to be used by prosecutors in Texas courtrooms. And the Innocence Project has lots of ammunition to back their position: bite mark evidence has been the contributing factor in many a wrongful conviction both in the State of Texas and across the country.

Additionally, at the federal level, the National Institute of Standards and Technology (NIST) is turning its eye to the problems with bite mark evidence, with a White House official arguing to a national NIST conference that bite mark evidence should be “eradicated” in the United States.

What is Bite Mark Evidence?

Bite mark evidence is part of “forensic dentistry.” It takes bite marks left on the victim or found on the alleged attacker in a crime and compares the marks with dental records or dental impressions, arguing that when the bite marks “match” the dental impressions then there is evidence that the alleged defendant did indeed commit the crime.

Bite mark evidence isn’t new. There was bite mark evidence used at the Salem Witch Trials (for a wrongful conviction).

Maybe the most famous case in recent memory was the use of bite mark evidence in the murder trial of notorious serial killer Ted Bundy.

Ted Bundy: Maybe the Most Famous Bite Mark Case

Ted Bundy was charged with the rape and murder of three co-eds at the Chi Omega sorority house on the Florida State University campus. (Bundy would end up being considered responsible for the murders of over 100 women in over 30 states).

In the Chi Omega case, bite mark evidence was used to tie Bundy to the crime. The police found bite marks on the body of victim Lisa Levy. The bite marks were compared to Bundy’s teeth, and admitted to prove that Bundy was responsible for her death since Bundy’s crooked tooth pattern appeared to be a match for the bite mark pattern left on Lisa Levy’s body.

(You can compare photos of the bite mark and Bundy’s bite pattern photo here.)

Bundy’s conviction with its forensic bite mark evidence has gone far toward prosecutors relying upon bite mark evidence in other cases to get convictions. Today, many prosecutors will still point to theTed Bundy case as some kind of talisman for how bite marks should be considered as almost traditional prosecution evidence — even though forensic research has challenged bite mark reliablity.

Challenging Bite Mark Evidence in Court

This isn’t a recent discovery, either, the fact that bite mark evidence should be trusted in criminal evidence. In 1999, a study was released by the American Board of Forensic Odontology which reported a 63% rate of false identifications when bite mark evidence was used. After that, an investigative expose by the Chicago Tribune revealed that there was no standardized protocols for bite mark analysis; ask a different expert, you might get a different answer.

There’s a reason that bite marks should not be used as evidence. They can be changed by stretching the skin. They age and become distorted very quickly. Teeth can change, too: even cavities can change the bite pattern of someone, blocking any correlation between their current bite pattern and the pattern shown in a bite mark in a criminal case file.

Right now, a Texas criminal defense lawyer must fight against the introduction of bite mark evidence on a case by case basis. If the prosecutor wants to use it, then the defense lawyer has to move the court to exclude it, arguing that it’s not reliable and not worthy of respect as evidence in a criminal proceeding.

Efforts being made by the Innocence Project and others will go a long way toward justice in our state. The time has come for bite mark evidence to be recognized as unscientific and unreliable across the board. Doing so will prevent its use by prosecutors from the get-go, and stop the case by case challenges that have to be mounted right now.

And if the defendant doesn’t have a lawyer, or if that lawyer doesn’t move to exclude that bite mark evidence? Well, it’s still possible today for the bite mark to come into evidence against the defendant. Unfair, but true — and that’s not justice, is it?

For more information, see our Web Resources Pages or visit Michael Lowe’s Case Results.