The odontologist who examines the bite wound may or may not be the one to take the records from a suspect. It is the opinion of this author that it is preferable that the most experienced odontologist obtain the records from the suspect because if there are errors, omissions, poor records, poor impressions, bite registrations, or a flaw in the chain of custody, the case
Figure 13.26b Biter’s teeth. (Courtesy of RRS.)
Figure 13.27 Class IV bite on ear. (Courtesy of the Miami Dade Medical Examiners office. Used with permission.)
can be severely or irreparably damaged. It is a good idea to have an assistant (dentist) when the records are taken from the suspect. The suspect, if he is aware that his teeth may have left a bitemark, can alter or remove his teeth. Thus, confidentiality is very important in all bitemark cases, but especially a homicide case.
Search Warrant or Court Order
In order to obtain a search warrant or court order probable cause is necessary. The analysis of the bite wound can provide probable cause; that is, photographs of the suspect’s teeth are similar to the configuration of the bite (Figure 13.28). Once the warrant is issued the records should be obtained as quickly as possible for the reasons mentioned above. The teeth can be altered or removed if the suspect is aware of the bitemark evidence.
A warrant or court order to obtain records from a suspect should contain at least five requests:
1. Photo of the defendant and his teeth
2. Dental history: present treatment and oral exam (check for mobile teeth, recent extractions, etc.)
3. Dental impressions 4. Bite records
5. Requests for the use of reasonable force if necessary
Is reasonable force necessary? Not in this author’s opinion. However, on several occasions the suspect had refused to submit to the order or warrant because it did not authorize the use of necessary force. The penalty for refusal was contempt of court and jail. Well, the suspect is already in jail. The authorization for the use of force has always defused the problem and the suspect has cooperated (Figure 13.29).
In certain cases voluntary consent is given for “persons of interest” to give bite exemplars; see State v. Doyle 1954 and Florida v. DuBoise 1987. This can be a problem with violation of the individual’s right against self-incrimination and should only be carried out with the prior approval of the agency in charge: police, prosecutor, medical examiner, and so on. It should also be mentioned that on occasion the odontologist may be asked to take buc- cal swabs for DNA analysis. If so, it should be specified in the court order and is a special request not usually the purview of the odontologist.
Comparison Analysis
The specificity of the opinion depends upon the variables of the evidence. Another way of saying the same thing is the level of certainty is inversely proportional to the variables. There are basically two types of opinions that can be expressed by the odontologist when reporting on the analysis and comparison of bitemark evidence. They are:
1. Investigative opinion: fluid non-specific, possible or probable, more likely than not. 2. Evidentiary: The final conclusion arrived at using the scientific method; to a reason-
Odontoglyphics—Bitemarks 175
How does one arrive at one or the other of these opinions? The variables of the bitemark, the dynamics, and the changes have been discussed previously in this chapter. Likewise, the biter’s teeth are changeable, can be removed or modified in position or shape. With so many variables, is it possible to make an identification of a suspect? Possibly. Can a suspect be eliminated? Possibly.
At the end of the day the investigative agency will want to know: Did she or he make the bitemark? Yes or no? This requires an evidentiary opinion. Be very careful and follow the guidelines when you attempt to answer this question. The analysis of the bite followed by the comparison to a suspect or suspects is a thought-provoking
Figure 13.28 Probable cause report. (Courtesy of the Miami Dade Medical Examiners office. Used with permission.)
and time-consuming process. The examiner should have as much information as possible for comparison analysis. This should include but not be limited, necessarily, to the following:
Circumstances of the event, a history •
Scene photos of the victim and injury •
Accurate and multiple photographs of the injury or injuries •
Life-size photos ALS, UV, IR •
Figure 13.29 Court order. (Courtesy of the Miami Dade Medical Examiners office. Used with permission.)
Odontoglyphics—Bitemarks 177 Dusted and printed bitemark
•
Impressions of the bitemark •
Tissue itself for analysis both macro- and microscopically •
This, of course, rarely happens but the odontologist is expected to ask the authorities to produce these items or permit the odontologist to have access to be able to produce the material himself.
Can a bite produce a positive identification from an unknown large population group? No. However, from a known or limited group, if all suspects except one are eliminated, the remaining suspect can be identified by the process of elimination. This, of course, assumes that you have a bite that would classify as a Class II or Class III bitemark. Of equal or greater significance is the elimination of a suspect as being the biter. This can be much more defin- itive than the inclusion. Again, this depends upon the quality of the evidence (the bite): a Class II or Class III bite and the investigative information such as scene photographs, cir- cumstances of the event, and quality and type of the photographic documentation.
Multiple and varied techniques have been described for the comparison of the injury to a suspect’s teeth. These include overlay transfers, metric measurements, computer or video comparison, direct manual overlay of models, test bite pattern comparisons, and so on. The techniques, their production, and their use have been discussed in great detail in other texts. All of the comparison techniques—metric, digital, manual, photographic, and video,—and the respective conclusions drawn from them are dependent upon the quality of the evidence and the known variables. All conclusions should be subject to a peer review, consultation, and independent second opinion. DNA samples taken from a bitemark will or may produce a positive ID from an unknown population but a bitemark cannot. With that said, bitemarks can be and have been very helpful in the investigation and successful prosecution of a crime, first in eliminating a suspect as having left the bite, then showing and being able to demonstrate to the authorities how a set of teeth could have produced the bitemark. In a courtroom, the odontologist may be able to demonstrate by comparison techniques how the teeth fit the bite, but more importantly, unlike DNA and fingerprint evidence, the trier of fact, the jury members, can physically perform the techniques of comparison themselves. Juries have in the past and will in the future use life-size photos (one-to-ones) of the bitemark and the models of the suspect’s teeth along with test bites and digital acetate transfers to concur with or reject the opinions of the odontologist. The use of bitemark evidence by the jury to arrive at their own conclusion is one of the reasons bitemark evidence is so powerful. One should be especially conservative in presenting the evidence in court. Mistakes in the analysis and interpretation of pattern injuries have resulted in several very serious miscarriages of justice.