According to Chris Fabricant, the Innocence Project director of strategic litigation, it is left to the discretion of individual judges whether to allow the evidence. “We’ve got (three current) pretrial capital cases where bitemark evidence was proffered by the prosecutors,” Fabricant was quoted by The Legal Examiner in December 2020.
Progress is being made, however. The odontology board that certifies forensic odontologists now states that when it comes to matching bitemarks to a particular suspect, the only options are: “the suspect is excluded,” “the suspect is not excluded,” or “inconclusive.” That’s radically different from the conclusions of the purported experts who testified at the trial of Jeffery Moldowan, claiming the “chances are 2.1 billion to 1” that an individual other than Moldowan made the bitemarks. (Maldowan served 12 years in prison before being acquitted at a retrial after one expert recanted her testimony.)
In 2016, Texas’ Forensic Science Commission called for a ban on bitemark-matching evidence but has no authority to enforce it. And in Florida in September 2020, their conviction review unit exonerated a man who was convicted 37 years ago on bitemark evidence. The unit identifies cases underpinned by junk science like bitemark evidence. Fabricant said that while some of the recently elected prosecutors are pledging to establish similar conviction review units in their own states, it is not the norm. And with the election of President Biden who claims to trust science, there is cautious optimism that he will revive the Obama-era review of all the pattern-matching techniques used by the FBI, including bitemark comparisons.
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