Reality Bites: The Illusion of Science in Bite-Mark Evidence

More than a decade after Daubert, years after the amendments to the Federal Rules of Evidence, and long after the courts in Frye jurisdictions started examining the empirical basis for expert claims before permitting such testimony in their courtrooms, judges are still evading their gatekeeping duties when it comes to criminal cases. A prime example of this can be found in bite-mark testimony. Although it comes dressed in the illusion of science, having experts with advanced degrees, a fancy name (forensic odontology), professional associations, and professional journals, that illusion belies the reality that bite-mark evidence utterly lacks empirical support for its claims. This Article examines the claims made for bite-mark testimony, and the empirical support for those claims.

It discusses the avoidance techniques used by the courts which permit this testimony into evidence despite the experts' inability to provide empirical support. It analyzes the threshold relevance requirement as basic to a rational system of adjudication, the concept of reliability as an inextricable component of this analysis, and why cross-examination, engine of truth though it may be, cannot resolve the problem of bogus expertise. This matters, because the result of admitting such flawed testimony is not only an injustice to the individual; it also undermines the legitimacy of the justice system.