Sunday, June 11, 2023

Is "Bitemark Analysis" Better than "Bitemark Comparisons"?

In October 2022, NIST released a draft report entitled "Bitemark Analysis: A NIST Scientific Foundation Review." A press release announced "Forensic Bitemark Analysis Not Supported by Sufficient Data, NIST Draft Review Finds." In March 2023, the final version reaching the same conclusions was released. Soon afterward, the NIST-supported Organization of Scientific Area Committees for Forensic Science (OSAC) revised the scope of the work that its forensic odontology subcommittee can undertake. The description now specifies, in italics no less, that "The Forensic Odontology Subcommittee does not develop standards on bitemark recognition, comparison, and identification."

Yet, some medical examiners believe that "analysis" of marks on the skin "frequently yields valuable information that forensic odontologists testify to in courts of law, just as forensic pathologists do with respect to their objective findings and their interpretations of those findings based on experience, training and the circumstances of the event." Richard Souviron & Leslie Haller, Bite Mark Evidence: Bite Mark Analysis Is Not the Same as Bite Mark Comparison or Matching or Identification, 4 J. L. & Biosci. 617, 618 (2017). They distinguish between "analysis" and "comparison," recognizing that the latter is not scientifically well founded, and seeking to preserve the former as a legitimate expert endeavor. They propose that

The analysis process involves answering basic, crucial, questions such as whether or not the pattern injury is a human bite mark. This question can be the most difficult part of the entire process. After establishing whether a patterned injury is, indeed, a bite mark, other questions must be asked. Is it a human bite mark? Was it made by an adult or a child? Was it swabbed for DNA? Was it made through clothing? If so, was the clothing swabbed for DNA? Where is it located on the victim and in what position was the victim when it happened? Could it have been self-inflicted? What was the position of the biter? Was it offensive or defensive? Was it affectionate or does it demonstrate violence? Will it produce a permanent injury? If so, simple battery may become aggravated battery. When was the bite inflicted in relation to the time of death? Is it fresh, a scar or somewhere in between? Was the person bitten alive or dead at the time? Are there any unique dental characteristics that could be used to exclude possible suspects? In cases of multiple bites, did the same biter make them all? Were they all made at the same time or do they establish a pattern of long-term abuse?

These questions, and more, are the essential core of the analysis of every bite mark, and produce a large amount of information that can be of considerable value to an investigation before any suspects are identified or charged.

Id. So where are the experiments or other studies to show that most of these "essential" parts of bitemark analysis can be done validly and reliably? Can medical examiners correctly classify "pattern injuries" as bitemarks? As human bitemarks? As the mark of a child or an adult? As affectionate? As unique? As coming from the same biter?

Bite (and other) marks will be encountered in autopsies. They need to be photographed and examined along with other injuries or characteristics. But odontologists and medical examiners should think hard before they claim the ability to do all these things "and more" as part of "analysis."

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