WEBVTT - #145 Wrongful Conviction: Junk Science - Bite Mark Evidence 0:00:00.840 --> 0:00:05.080 Imagine this. You're at your house. You're standing at the 0:00:05.080 --> 0:00:08.399 stove making dinner. You hear a knock at the door. 0:00:09.320 --> 0:00:13.600 It's the police. They ask you your name. They've been 0:00:13.640 --> 0:00:17.160 looking for you. The first thing you think is, oh, no, 0:00:17.800 --> 0:00:20.400 something must have happened to a friend or someone in 0:00:20.440 --> 0:00:24.800 my family. An officer looks you in the eye. They 0:00:24.840 --> 0:00:28.840 need to ask you some questions. What is it? What happened? 0:00:30.240 --> 0:00:32.800 They won't tell you. You'll need to go down to the 0:00:32.840 --> 0:00:36.159 police station. You agree to go with them, and you 0:00:36.280 --> 0:00:41.680 ask them over and over what's the problem. You're putting 0:00:41.720 --> 0:00:45.240 a small windowless room and you're very anxious, and you're 0:00:45.240 --> 0:00:50.400 told you wait here. Two plain closed detectives eventually come in. 0:00:50.840 --> 0:00:54.240 One sits across from you, or a rickety table separates 0:00:54.280 --> 0:00:56.600 you from him. The other comes to your side of 0:00:56.600 --> 0:00:59.760 the table and he sits so close to you that is, 0:01:00.040 --> 0:01:04.480 he is touching yours. He quickly begins accusing you of 0:01:04.640 --> 0:01:09.360 raping and murdering someone. He says a name that you recognize. 0:01:09.800 --> 0:01:13.200 It's your ex who you haven't been in contact with 0:01:13.480 --> 0:01:17.199 for years. The one sitting closest to you who tells 0:01:17.240 --> 0:01:19.720 you the murder happened last night and that the only 0:01:19.760 --> 0:01:22.400 way you can help yourself is to just admit what 0:01:22.480 --> 0:01:26.360 you did. He asked you where you were yesterday. At first, 0:01:26.440 --> 0:01:29.039 it's not easy to remember the mundane details of the 0:01:29.080 --> 0:01:32.840 past day. You were just told that your ex was murdered. 0:01:33.840 --> 0:01:36.560 But you take a deep breath and you try to focus. 0:01:37.560 --> 0:01:40.200 You were at work all day. On your way home, 0:01:40.240 --> 0:01:43.160 you went to the grocery store. Then you stopped and 0:01:43.200 --> 0:01:45.160 had a bureau of some friends at a local bar. 0:01:45.760 --> 0:01:49.040 Then you got gas at the gas station. You ran 0:01:49.080 --> 0:01:52.400 into one of your neighbors. You can remember sitting there 0:01:52.440 --> 0:01:57.840 across from those detectives, at least nine alibi witnesses. You 0:01:57.960 --> 0:02:00.640 tell this to the detectives, and this gets them even 0:02:00.680 --> 0:02:04.640 more pissed. They say, look, we don't believe you. We 0:02:04.800 --> 0:02:08.160 know you killed this woman. They tell you that the 0:02:08.240 --> 0:02:11.920 victim has bite marks all over her neck, on her shoulder, 0:02:12.080 --> 0:02:15.240 her inner thigh, and her arm. They tell you that 0:02:15.320 --> 0:02:18.720 the killer left those bite marks, that they can determine 0:02:18.760 --> 0:02:21.959 who committed this crime just by taking a dental impression 0:02:22.000 --> 0:02:24.760 of their teeth and matching it to the bite marks 0:02:24.800 --> 0:02:28.200 on the victim. And if you're so innocent, they say, 0:02:28.600 --> 0:02:30.880 if this is some big mix up, and you didn't 0:02:30.880 --> 0:02:33.720 really do this. Let us just take an impression of 0:02:33.760 --> 0:02:39.760 your teeth. Fine, let's do it. After more forceful accusations, 0:02:40.000 --> 0:02:43.320 they let you sit there, and sit there, and sit there. 0:02:44.600 --> 0:02:47.160 A few hours later, they send a man into the 0:02:47.200 --> 0:02:50.480 room wearing a white lab coat, and he certainly looks 0:02:50.560 --> 0:02:53.560 the part of a dentist. He takes out two metal 0:02:53.600 --> 0:02:57.600 bite plates and fills them with a silly putty like substance. 0:02:58.400 --> 0:03:01.800 He pushes these cold train into your mouth and tells 0:03:01.840 --> 0:03:05.680 you to bite down. The putty tastes like plastic. It 0:03:05.760 --> 0:03:09.840 hugs your teeth, then quickly firms up and drives. Then 0:03:09.840 --> 0:03:12.640 it's pulled from your mouth and there is a perfect impression. 0:03:14.000 --> 0:03:16.360 The cops come back in and they tell you you 0:03:16.400 --> 0:03:20.280 can leave the police station, but they also tell you you're 0:03:19.919 --> 0:03:24.280 not to leave town. Three sleepless nights later, you're at 0:03:24.320 --> 0:03:27.639 your house, laying awake in bed, and you're really overcome 0:03:27.639 --> 0:03:32.000 by anxiety. You're wondering, do I need an attorney or 0:03:32.080 --> 0:03:33.840 does that make it look like I may have actually 0:03:33.880 --> 0:03:36.840 done something wrong? How do I act? What am I 0:03:36.880 --> 0:03:42.720 supposed to do? And then your dog starts barking. This 0:03:42.840 --> 0:03:48.000 time they don't knock. Your front door is blown off 0:03:48.040 --> 0:03:50.680 its hinges by a swat team, and before you know 0:03:50.760 --> 0:03:54.480 what's happening, you are on the ground. You can clearly 0:03:54.520 --> 0:03:58.560 hear one of these cops yell at you don't fucking move. 0:03:59.360 --> 0:04:03.440 Your face is being pushed into the carpet. You're being handcuffed. 0:04:03.920 --> 0:04:06.560 You're told you're being charged with the rape and murder 0:04:06.560 --> 0:04:09.760 of your ex who you haven't seen or spoken to 0:04:09.920 --> 0:04:17.640 in years. At your trial, the prosecution gets two experts 0:04:17.640 --> 0:04:21.400 in bite marks, called odentologists, an impressive sounding title for 0:04:21.480 --> 0:04:26.159 a forensic dentist, and they explain how the ridges, angles, peaks, 0:04:26.160 --> 0:04:30.679 and valleys of your teeth, these unique characteristics, perfectly matched 0:04:30.720 --> 0:04:34.240 with the bite marks on the victim. They say things 0:04:34.279 --> 0:04:37.960 to the jury that sound really impressive. There's a one 0:04:38.000 --> 0:04:40.440 in a million chants that these bite marks are anyone 0:04:40.480 --> 0:04:43.640 else's but the defendants, they say, and we know that 0:04:43.880 --> 0:04:50.800 to a degree of scientific certainty. The jury seems to 0:04:50.839 --> 0:04:55.039 be completely buying this, and why not? It all sounds 0:04:55.120 --> 0:05:01.040 so rational, so infallible. You're thinking, I'm really screwed here, 0:05:02.120 --> 0:05:09.360 but you know you're innocent. Countless innocent men and women 0:05:09.760 --> 0:05:14.839 have lived this horrific nightmare. Their wrongful convictions are based 0:05:14.839 --> 0:05:21.040 on evidence presented by odentologists, the quote unquote scientific experts 0:05:21.040 --> 0:05:28.240 and bitemark evidence. I'm Josh Duben, civil rights and criminal 0:05:28.240 --> 0:05:31.919 defense attorney, an innocent ambassador to the Innocence Project in 0:05:31.960 --> 0:05:36.200 New York. Today on wrongful conviction junk science, We're going 0:05:36.200 --> 0:05:40.960 to explore bitemark evidence. Like other forms of junk science 0:05:41.040 --> 0:05:44.960 used in criminal trials, bitemark evidence does not benefit crime 0:05:45.040 --> 0:05:48.320 victims or their loved ones, So why is it treated 0:05:48.360 --> 0:05:52.400 like credible science. It turns out that the charade of 0:05:52.440 --> 0:06:06.640 bitemark evidence is actually older than the United States. On 0:06:06.680 --> 0:06:10.120 April thirtieth, sixteen ninety two, a reverend by the name 0:06:10.160 --> 0:06:13.760 of George Burrows was arrested and accused of torturing young 0:06:13.800 --> 0:06:17.159 women into witchcraft. It was alleged that he would inflict 0:06:17.279 --> 0:06:22.000 various forms of physical harm on them, pinching, strangling, and yes, 0:06:22.400 --> 0:06:27.240 biting them. The evidence against Burrows was really thin, but 0:06:27.320 --> 0:06:30.560 the only physical evidence were the alleged bite marks that 0:06:30.640 --> 0:06:33.760 the prosecution claimed his teeth left on the flesh of 0:06:33.760 --> 0:06:38.200 his victims. At his trial, Reverend Burroughs was pulled by 0:06:38.200 --> 0:06:41.760 the face around the courtroom and his mouth was pride open. 0:06:42.680 --> 0:06:45.640 A stick was used to point out the unique characteristics 0:06:45.680 --> 0:06:49.520 of Burrow's teeth, the peaks, the angles of his molars, 0:06:50.360 --> 0:06:52.359 and then they were compared to what the court was 0:06:52.400 --> 0:06:56.359 told were bite marks on the young girls. Burrows was 0:06:56.440 --> 0:07:00.000 convicted and publicly hanged. While he stood on a ladder 0:07:00.080 --> 0:07:02.919 waiting the tightening him a noose around his neck, he prayed. 0:07:03.680 --> 0:07:07.159 He recited the Lord's prayer, and a collective gasp, like 0:07:07.240 --> 0:07:10.160 a creeping wave, rolled through the crowd that had gathered 0:07:10.160 --> 0:07:13.760 to watch his hanging. Because the Lord's prayer was considered 0:07:13.800 --> 0:07:20.600 impossible for a witch, and so bite mark evidence was born. 0:07:20.720 --> 0:07:26.880 In the bloodthirsty hysteria of the Salem witch trials, Burrow's 0:07:26.920 --> 0:07:29.720 recitation of the Lord's Prayer should have been a sign 0:07:30.000 --> 0:07:33.160 that something was wrong with his conviction, that he wasn't 0:07:33.160 --> 0:07:37.520 a witch after all, Because it turns out the angry, 0:07:37.680 --> 0:07:41.240 frenzied mob that was so quick to accuse, convict, and 0:07:41.360 --> 0:07:45.679 hang George Burrows had in fact executed an innocent man. 0:07:46.800 --> 0:07:50.040 Twenty years after he was put to death, George Burrows 0:07:50.160 --> 0:07:54.400 was declared innocent. He was in another town altogether, on 0:07:54.480 --> 0:07:58.920 the knights that the victims were allegedly tortured. George Burrows 0:07:58.920 --> 0:08:02.480 hadn't beiten anyone at all. That entire show that was 0:08:02.480 --> 0:08:05.520 put on in that courtroom, the circus of forcing his 0:08:05.640 --> 0:08:09.840 mouth open was nothing more than performance masquerading as science. 0:08:11.000 --> 0:08:15.280 And yet bitemark evidence is still being used in courtrooms 0:08:15.280 --> 0:08:19.280 across the country to convict innocent people of crimes they 0:08:19.320 --> 0:08:20.240 did not commit. 0:08:22.200 --> 0:08:26.040 Every single case that my department has gotten involved in 0:08:26.120 --> 0:08:28.680 has ended up in reversal of the conviction, or exclusion 0:08:28.680 --> 0:08:31.240 of the evidence, or withdrawal of the evidence because it's 0:08:31.240 --> 0:08:32.480 so grossly unreliable. 0:08:33.360 --> 0:08:35.880 To tell us more about bitemark evidence, we have Chris 0:08:35.920 --> 0:08:39.880 Fabricaon from the Innocence Project here with us today. Throughout 0:08:39.880 --> 0:08:42.760 his twenty year legal career, Chris has worked on countless 0:08:42.800 --> 0:08:45.800 cases in which innocent men and women spent decades in 0:08:45.880 --> 0:08:48.120 prison because of bitemark evidence. 0:08:48.520 --> 0:08:52.800 We at the Innocence Project had an agenda about eliminating 0:08:52.840 --> 0:08:55.160 the use of bitemark evidence and criminal trials. 0:08:56.000 --> 0:08:59.960 Chris, there's a case from the nineteen seventies, the People 0:09:00.120 --> 0:09:03.320 versus Marx, which I believe is the first modern instance 0:09:03.360 --> 0:09:08.000 of a bite mark on human skin being presented as evidence. 0:09:08.600 --> 0:09:10.280 Can you tell us about this case. 0:09:10.720 --> 0:09:15.440 So Walter Marx was a weekend tenant of a woman 0:09:15.600 --> 0:09:19.160 named Lovey Borzanski, and so the first time since he 0:09:19.200 --> 0:09:21.560 had had this lease, he did not spend the night 0:09:21.840 --> 0:09:25.800 on the weekend, and that same weekend the murder victim 0:09:25.920 --> 0:09:30.160 turned up dead. Police discovered the body on Sunday afternoon, 0:09:30.200 --> 0:09:36.720 and they noticed that the victims nose had been indelicately 0:09:36.760 --> 0:09:42.040 put bitten off, and the cartilage of the nose on 0:09:42.080 --> 0:09:44.880 the victim's face had left the impression of what appeared 0:09:44.920 --> 0:09:47.760 to be tooth marks. Mister Marx looked good for it, 0:09:47.800 --> 0:09:50.120 but there wasn't really any evidence apart from the fact 0:09:50.160 --> 0:09:53.920 that he didn't show up for his usual weekend stay. 0:09:54.720 --> 0:09:58.680 So there was a group of dentists who had had 0:09:58.720 --> 0:10:02.280 some history with aifying human bodies through dental records, which 0:10:02.320 --> 0:10:05.520 is a totally different, unrelated sub discipline of forensic dentistry. 0:10:06.120 --> 0:10:10.120 But they had had some interest in bitemark evidence and 0:10:10.559 --> 0:10:13.400 had been kind of looking for the right case to 0:10:13.520 --> 0:10:17.480 essentially try this out. And interestingly, mister Mark spent four 0:10:17.559 --> 0:10:21.360 months in jail on a contempt charge resisting the court 0:10:21.520 --> 0:10:24.599 order to have a mold taken of his teeth. Eventually, 0:10:24.880 --> 0:10:27.400 he gave up and allowed the mold to be taken. 0:10:27.800 --> 0:10:31.280 Now, let me stop you. There didn't like six or 0:10:31.440 --> 0:10:34.480 eight weeks pass before they were able to compare the 0:10:34.520 --> 0:10:38.240 impression on Walter Mark's teeth to the victim. And hadn't 0:10:38.280 --> 0:10:41.719 she already been buried and they had to exhume her body? 0:10:41.880 --> 0:10:42.160 Yeah? 0:10:42.280 --> 0:10:45.640 You know what's interesting about that is that they still 0:10:45.679 --> 0:10:49.520 do exhumations and do that type of pattern matching today. 0:10:50.000 --> 0:10:53.240 Doesn't common sense just dictate that when you bury a 0:10:53.320 --> 0:10:58.400 human body, the skin changes, it starts to wear and decompose. 0:10:59.080 --> 0:11:02.840 It just seems like intuitive that if there was a 0:11:02.880 --> 0:11:06.120 bite mark and you actually could compare a chief to it, 0:11:06.160 --> 0:11:09.000 that it wouldn't be you know, worth anything to make 0:11:09.040 --> 0:11:12.200 that comparison after a body had been buried for that long. 0:11:13.080 --> 0:11:14.079 Yeah, precisely right. 0:11:14.120 --> 0:11:16.440 You're asking the critical questions that no court in the 0:11:16.440 --> 0:11:19.960 country asked. For forty years, state after state after state 0:11:20.000 --> 0:11:24.240 after state cited back to the Walter Marx decision as 0:11:24.720 --> 0:11:27.360 evidence of not just that it's admissibility, but if it's 0:11:27.440 --> 0:11:30.600 scientific reliability. 0:11:30.120 --> 0:11:33.640 This becomes the precedent, This becomes well, hey, bite mark 0:11:33.679 --> 0:11:36.800 evidence was accepted in the Marks case, you should accept 0:11:36.840 --> 0:11:38.800 it here and all of a sudden it just starts 0:11:38.840 --> 0:11:41.680 to get accepted. How is that even possible? 0:11:42.080 --> 0:11:42.920 Because it worked. 0:11:43.080 --> 0:11:46.160 You know, the criminal justice system is an efficient eating 0:11:46.160 --> 0:11:49.800 and killing machine of largely poor people of color, and 0:11:49.880 --> 0:11:55.240 whatever facilitates that process, it's going to be used as 0:11:55.240 --> 0:11:58.080 long as courts admit it. And bite mark evidence was 0:11:58.120 --> 0:12:01.880 introduced as evidence, the admitted it, it got upheld on appeal, 0:12:01.960 --> 0:12:02.800 so it was good to go. 0:12:03.200 --> 0:12:06.480 So bite mark evidence was officially accepted in the Marks 0:12:06.559 --> 0:12:10.320 case and now it has been ingested, if you will, 0:12:10.760 --> 0:12:15.120 into the criminal justice system. But it became acceptable to 0:12:15.240 --> 0:12:18.440 the general public because of the Ted Bundy case. 0:12:18.320 --> 0:12:19.640 Right, Yeah, you know. 0:12:19.640 --> 0:12:21.960 I mean I sometimes say that Ted Bundy ended up 0:12:21.960 --> 0:12:25.640 having many more posthumous victims than any other serial killer 0:12:25.880 --> 0:12:28.720 that we can be aware of, because that his trial 0:12:28.800 --> 0:12:30.880 led to the widespread use of bite mark evidence all 0:12:30.920 --> 0:12:31.680 over the country. 0:12:32.320 --> 0:12:34.640 So for those of our listeners who don't know, but 0:12:34.960 --> 0:12:36.960 I feel like it's safe to say, most dude, Ted 0:12:37.000 --> 0:12:40.920 Bundy was one of the most infamous serial killers in 0:12:41.080 --> 0:12:45.400 US history, and his murder trial was actually the first 0:12:45.440 --> 0:12:49.760 criminal trial to ever be televised in the United States. Now, 0:12:49.960 --> 0:12:55.920 there was overwhelming evidence that proved Bundy was guilty of killing, raping, 0:12:56.000 --> 0:13:00.800 and torturing these young women from Florida State University. And 0:13:00.920 --> 0:13:04.760 they had eyewitness testimony of him, you know, coming to 0:13:04.880 --> 0:13:09.040 the murder scene, leaving the murder scene. They had things 0:13:09.080 --> 0:13:11.400 that he had stolen from the homes of these women. 0:13:11.840 --> 0:13:14.520 And there was sort of like a belts and suspenders 0:13:14.600 --> 0:13:17.760 moment where they wanted to make sure they did everything 0:13:17.800 --> 0:13:20.840 they could to prove his guilt. And they spent two 0:13:21.440 --> 0:13:27.040 full days presenting this bitemark testimony in the case. Why 0:13:27.080 --> 0:13:28.800 do you think that is, Chris. 0:13:28.679 --> 0:13:32.640 People are hungry for every piece of news they could 0:13:32.640 --> 0:13:33.960 possibly get about Ted Bundy. 0:13:33.960 --> 0:13:35.400 Everybody believed he's guilty. 0:13:35.800 --> 0:13:38.160 The only physical evidence in that case was the bitemark, 0:13:38.840 --> 0:13:41.080 so it was touted as you know, bitite marks are 0:13:41.080 --> 0:13:43.440 the thing that finally brought Bundy down. And after Ted 0:13:43.440 --> 0:13:46.760 Bundy was convicted of using bitemark evidence, it really just 0:13:46.880 --> 0:13:55.640 exploded all over the country. 0:14:06.280 --> 0:14:11.160 There's something about teeth and dentists that gets associated with reliability, right. 0:14:11.240 --> 0:14:15.160 I mean, we've all heard about dental records being used 0:14:15.160 --> 0:14:21.360 to identify crime victims accident victims, and that sign seems 0:14:21.400 --> 0:14:24.320 to be real. But that's very different from saying that 0:14:24.480 --> 0:14:28.360 a bitemark can be used to identify the person that 0:14:28.720 --> 0:14:30.080 did the biting, right. 0:14:30.160 --> 0:14:33.640 The identification of human remains through dental records is kind 0:14:33.640 --> 0:14:37.120 of a trojan horse for the forensic dentistry crowd to 0:14:37.120 --> 0:14:41.520 get into court on bitemark evidence, and I've seen it 0:14:41.680 --> 0:14:46.760 firsthand in lots of dentists. Conflating these two subdisciplines is 0:14:46.800 --> 0:14:50.080 the same thing. You identify people by their teeth, and 0:14:50.120 --> 0:14:54.160 you identify people by the bitemarks those teeth make. And 0:14:54.480 --> 0:14:57.000 that kind of makes sense until you actually think about it. 0:14:57.080 --> 0:15:00.000 The two techniques have nothing whatsoever to do with each other. 0:15:00.560 --> 0:15:04.720 So why doesn't bitemark evidence work? Why isn't it reliable? 0:15:05.120 --> 0:15:08.400 Bite marks are totally different because you're interpreting an injury 0:15:08.440 --> 0:15:10.840 on skin that has almost nothing to do with teeth 0:15:10.840 --> 0:15:13.880 at all, And so all of the little individual theoretically 0:15:14.000 --> 0:15:17.040 unique differences in teeth that you're pointing out, the cracks, 0:15:17.200 --> 0:15:21.600 the bevels, the crookedness or the straightness or the missing tooth, 0:15:21.680 --> 0:15:23.520 or this or that that you can think of that 0:15:23.560 --> 0:15:25.880 would be different from mouth to mouth or not reflected 0:15:25.920 --> 0:15:29.240 in the skin whatsoever. But even if you can say 0:15:30.240 --> 0:15:35.160 with some confidence that these two things can be associated. 0:15:35.200 --> 0:15:37.160 Then you have to answer the question is it one 0:15:37.200 --> 0:15:39.120 in ten or is it one in ten million people 0:15:39.160 --> 0:15:42.920 that might also match. So in DNA, we know you 0:15:42.960 --> 0:15:46.240 know fairly well how many other people are likely to 0:15:46.280 --> 0:15:50.320 share your DNA. We've done the statistical population frequencies to 0:15:50.400 --> 0:15:54.040 know and to believe that the human DNA is unique. 0:15:54.280 --> 0:15:56.840 We haven't done that with fingerprints or shoes. 0:15:56.560 --> 0:15:59.800 Or tires or firearms, and we certainly have not done 0:15:59.800 --> 0:16:01.400 the with teeth. 0:16:01.800 --> 0:16:04.520 So you're saying that a bite mark and a suspects 0:16:04.560 --> 0:16:08.320 tooth might appear to match, but many other people's teeth 0:16:08.440 --> 0:16:11.840 might match that same bite mark, so it's not a unique. 0:16:11.480 --> 0:16:14.760 Match, right, So you layer those problems on top of 0:16:14.800 --> 0:16:17.600 bite marks where you're trying to interpret an injury in 0:16:17.720 --> 0:16:21.800 human skin, where all skin is different, right, old people, 0:16:21.920 --> 0:16:26.080 young people, thin people, heavy people. All these things make 0:16:26.080 --> 0:16:30.000 a difference in individual skin characteristics. If you are flexing 0:16:30.040 --> 0:16:32.000 at the time you were bitten, the bite mark's going 0:16:32.080 --> 0:16:34.720 to look one way. If your arm was relaxed at 0:16:34.760 --> 0:16:37.320 the same time, it would look a different way. Right, 0:16:37.360 --> 0:16:39.360 And if you think about somebody who may be lost 0:16:39.360 --> 0:16:42.840 one hundred pounds recently and has saggy skin as a result, right, 0:16:42.880 --> 0:16:44.440 the way that bite mark is going to appear on 0:16:44.480 --> 0:16:47.680 that person's going to be different than somebody who's you know, 0:16:48.640 --> 0:16:51.440 puffy from drinking, right, and their skin's all taut and round, 0:16:51.520 --> 0:16:53.000 you know, and you try and bite into that and 0:16:53.040 --> 0:16:55.160 you're just going to engage a few teeth. So every 0:16:55.200 --> 0:16:58.560 time that the same teeth make a bite mark, it's 0:16:58.560 --> 0:17:00.840 going to look different every single time, depending on the 0:17:00.880 --> 0:17:02.800 angle of the body, what type of struggle it was, 0:17:02.840 --> 0:17:05.480 what type of person that you're dealing with. All of 0:17:05.480 --> 0:17:08.119 these things are variable. Is that change every single time, 0:17:08.480 --> 0:17:11.960 So it's just fundamental speculation, you know, just guess work 0:17:12.040 --> 0:17:13.680 that's proffered as science. 0:17:13.840 --> 0:17:16.080 Very very persuasive, but totally guesswork. 0:17:16.480 --> 0:17:19.840 I read that someone can be missing their front teeth 0:17:20.760 --> 0:17:25.040 bite down on human skin, and the bite mark can 0:17:25.200 --> 0:17:27.920 make it appears if they actually have two front teeth, 0:17:28.640 --> 0:17:31.480 and that someone would two front teeth that are fully 0:17:31.520 --> 0:17:35.119 intact and bite down and the bitemark can look like 0:17:35.800 --> 0:17:37.480 they are missing two front teeth. 0:17:37.760 --> 0:17:39.600 Can really get the skin to say anything that you 0:17:39.680 --> 0:17:42.960 needed to say. You can match a bitemark to almost 0:17:42.960 --> 0:17:43.760 any suspect. 0:17:43.920 --> 0:17:47.240 But if this evidence is so unreliable, then what exactly 0:17:47.320 --> 0:17:52.400 makes these odentologists, these bitemark experts, so convincing that they're 0:17:52.440 --> 0:17:56.119 able to convince a judge or a jury of an 0:17:56.160 --> 0:17:57.639 innocent person's guilt. 0:17:57.760 --> 0:18:00.560 So you'll see these experts that are testifying and using 0:18:00.880 --> 0:18:05.280 a lot of scientific terminology plus a lot of obscure 0:18:05.359 --> 0:18:09.320 dental terminology, and the testimony just becomes opaque, and you 0:18:09.400 --> 0:18:11.800 just kind of turn off your brain and your critical thinking. 0:18:11.920 --> 0:18:15.920 And the experts sounds so persuasive because they have ten 0:18:16.000 --> 0:18:18.240 thousand different ways to record a bite mark. Some of 0:18:18.280 --> 0:18:20.560 them go so far as harvesting tissue they call it 0:18:20.600 --> 0:18:24.720 from dead bodies and mounting them on silicone rings. And 0:18:24.760 --> 0:18:28.320 they use ultra violet photography and digital photography and black 0:18:28.320 --> 0:18:33.320 and white photography, and they use very very precise dental molds, 0:18:33.359 --> 0:18:37.120 and they use dental materials that are highly highly accurate. 0:18:37.200 --> 0:18:37.840 All that's very. 0:18:37.720 --> 0:18:42.440 Impressive, it's just totally meaningless. There's massive distinction between collecting 0:18:42.520 --> 0:18:47.120 data and interpreting data, and what a lot of junk 0:18:47.200 --> 0:18:53.320 science relies on very very precise and impressive methods of 0:18:53.400 --> 0:18:58.760 collecting data and very very light on interpreting the data. 0:18:58.880 --> 0:19:03.560 And so the evidence of these so called expert odentologists 0:19:03.600 --> 0:19:07.719 sound strong because of all the jargon and technology, and 0:19:07.760 --> 0:19:11.080 in our society we're told to trust people in white 0:19:11.200 --> 0:19:15.080 lab codes, and these guys, these odentologists, really do appear 0:19:15.119 --> 0:19:16.040 to be experts. 0:19:16.320 --> 0:19:18.400 When an expert witness gets on the stand, they don't 0:19:18.400 --> 0:19:21.280 just start testifying. Right, what's the first thing that they do? 0:19:22.280 --> 0:19:22.440 Right? 0:19:22.600 --> 0:19:25.520 You go through their credentials cvs that are over twenty 0:19:25.640 --> 0:19:30.040 pages long, appearances on sixty minutes presentations at the American 0:19:30.080 --> 0:19:34.400 Academy of Forensic Sciences, This board membership, that board membership. 0:19:34.480 --> 0:19:36.040 The credentials are off the. 0:19:36.080 --> 0:19:40.480 Chain, right, So the jury hears all of these impressive credentials, 0:19:40.520 --> 0:19:44.639 and why should they dispute it, And suddenly they start 0:19:44.640 --> 0:19:48.240 believing that these so called experts must know what they're 0:19:48.280 --> 0:19:52.119 talking about, that they're presenting solid scientific fact. 0:19:52.440 --> 0:19:56.320 It takes a very very critical thinker and an independent 0:19:56.400 --> 0:20:00.879 thinker not to be lulled into a a sense of, 0:20:01.760 --> 0:20:05.880 you know, abdicating your responsibility. And there's always two strikes 0:20:05.880 --> 0:20:09.439 against any defendant that walks into criminal court and is 0:20:09.480 --> 0:20:11.040 on trial. You know, most of the people in the 0:20:11.080 --> 0:20:14.359 courtroom believe that he or she is guilty already. The 0:20:14.440 --> 0:20:18.400 bias that most Americans walk into court with with the 0:20:18.440 --> 0:20:22.080 idea that the person that is on trial is guilty 0:20:22.119 --> 0:20:22.600 as charged. 0:20:22.720 --> 0:20:27.679 Chris, I've heard of so many convictions where bitemark evidence 0:20:28.480 --> 0:20:33.440 was used to gain the conviction and it was later 0:20:33.520 --> 0:20:37.040 proven that the injuries weren't even human bites at all. 0:20:37.119 --> 0:20:41.080 They were things like insect bites and animal bites or 0:20:42.040 --> 0:20:44.000 bruises something else entirely. 0:20:44.480 --> 0:20:49.400 One of the fundamental claims by bitemark experts, these forensic dentists, 0:20:50.320 --> 0:20:54.280 is that they, through their training and experience, have the 0:20:54.320 --> 0:20:58.720 ability to discern a human bitemark from other types of injuries. 0:21:00.080 --> 0:21:03.399 Can say in science is that if experts look at 0:21:03.400 --> 0:21:06.800 the same evidence and largely come to similar the same conclusions, 0:21:06.880 --> 0:21:11.000 there's some reliability in the technique. And there was a 0:21:11.040 --> 0:21:15.280 study that was done about four years ago, and what 0:21:15.400 --> 0:21:18.960 this was was a survey of the self identified top 0:21:19.000 --> 0:21:21.280 A forensic dentists in the country. It was about forty 0:21:21.320 --> 0:21:23.560 of them, and they did a survey of one hundred 0:21:23.560 --> 0:21:26.159 different injuries and they wanted to see if there are 0:21:26.240 --> 0:21:27.879 inter radar reliability. 0:21:28.200 --> 0:21:30.840 So when a bunch of odentologists looked at different kinds 0:21:30.880 --> 0:21:33.960 of injuries, did they agree about whether or not they 0:21:33.960 --> 0:21:36.159 were looking at photographs of human bite marks. 0:21:36.800 --> 0:21:40.680 These top bitemark experts in the country, they were all 0:21:40.720 --> 0:21:43.600 over the place. So even just as a threshold matter, 0:21:44.280 --> 0:21:46.520 as we're talking about what's a bitemark and what is 0:21:46.560 --> 0:21:49.600 in a bite mark, it's junk science at that level too. 0:21:50.440 --> 0:21:52.520 This study should have been the end of bite mark 0:21:52.560 --> 0:21:55.240 evidence and courtrooms in this country, right, I mean, why 0:21:55.440 --> 0:21:56.120 wasn't it? 0:21:56.119 --> 0:21:57.680 It depends on really, you know, do you want the 0:21:57.720 --> 0:21:59.680 cynical answer or do you want the long term answer. 0:21:59.720 --> 0:22:02.879 Thisical answer is that courts don't care. Any tool that 0:22:03.720 --> 0:22:09.320 is used successfully to prosecute indigent defendants in our criminal 0:22:09.440 --> 0:22:13.679 justice system is almost always going to be available to 0:22:13.720 --> 0:22:17.639 the prosecution and continue to be available to the prosecution 0:22:18.080 --> 0:22:20.320 once it's become amissible in the first place, and it's 0:22:20.359 --> 0:22:23.480 almost impossible to unwind it and to walk back all 0:22:23.480 --> 0:22:26.480 that legal precedent. The prosecutors have a duty to do justice, 0:22:26.480 --> 0:22:29.480 and that part of that should be never using unreliable 0:22:29.560 --> 0:22:30.520 evidence in the case. 0:22:30.560 --> 0:22:31.760 But that's not the way it's done. 0:22:31.840 --> 0:22:34.080 Once it's amissible, the prosecutors are going to continue to 0:22:34.119 --> 0:22:37.120 fight for its admissibility because it's useful to get convictions. 0:22:37.560 --> 0:22:41.680 Right. The prosecutor who says, you know what, I feel 0:22:41.760 --> 0:22:45.440 uncomfortable presenting a case that is built on junk science 0:22:46.200 --> 0:22:51.040 is unfortunately the exception to the rule, and a very 0:22:51.119 --> 0:22:54.680 rare exception at that. And I think what our listeners 0:22:54.720 --> 0:22:59.240 need to understand is that prosecutors are often told go 0:22:59.320 --> 0:23:02.840 get a convict, and what matters to them is the win, 0:23:03.600 --> 0:23:08.440 and the mentality is when it all costs, even if 0:23:08.480 --> 0:23:16.240 it means presenting information that is known to be unscientific, unreliable, unsubstantiated, 0:23:16.640 --> 0:23:33.959 including bitemark evidence. At the beginning of this episode, I 0:23:34.000 --> 0:23:38.000 asked you to imagine yourself accused of a murder. The 0:23:38.119 --> 0:23:42.080 victim had bite marks all over their body. The prosecution 0:23:42.359 --> 0:23:46.120 brought out a parade of experts. They presented what sounded 0:23:46.200 --> 0:23:52.160 like unimpeachable scientific fact. You're sitting there knowing that you're innocent, 0:23:52.840 --> 0:23:56.119 Yet these so called facts about bitemarks are being used 0:23:56.160 --> 0:24:01.160 to turn a jury against you. These sports are still 0:24:01.200 --> 0:24:05.480 being used to wrongly convict people all over the country. 0:24:06.560 --> 0:24:09.800 There are people sitting on death row right now whose 0:24:09.880 --> 0:24:13.360 cases are based on the junk science of bitemark evidence. 0:24:14.280 --> 0:24:17.880 The good news is that lawyers like Chris Fabricaon are 0:24:17.920 --> 0:24:21.199 working with the Innocence Project to overturned cases that are 0:24:21.240 --> 0:24:22.640 based on bitemark evidence. 0:24:23.119 --> 0:24:27.240 Our objectives were was to eliminate the use of bitemark 0:24:27.280 --> 0:24:30.479 evidence generally, which you know, sadly we still have an 0:24:30.480 --> 0:24:33.640 accomplished that goal, but also to find the many, many 0:24:33.760 --> 0:24:37.080 victims of this junk science and that are still incarcerated 0:24:37.080 --> 0:24:39.359