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牙印证据的可采性 自从弗莱 v.美国，293F.1013(D.C.Cir.1923)，八十七年以前，法院已经在解决证据的标准的问题上受到了挑战，因为他们与专家证言的可采纳性息息相关。弗莱，在他的案子中，由于血压标明检测结果而被指控，一个专家证人证明弗莱是无辜的。（一个光标，它能够显示白天的测谎结果。）[1]法院拒绝了专家证人的证据，也拒绝了弗莱的上诉。专家证人的证据必须基于法院的判决，才能建立起来并广泛被社学方法接受。 因为科学仍然处于起步阶段，被专家证人使用的血压测试的方法，还不能在实践中被广泛接受。血压测试的使用被认为还处于试验阶段，因此，科学缺少普遍的接受度。[2]法院宣称：“当一个解穴原理或者发明跨越了实验性和实证性阶段，那么界限是很难定义的。”在还处于黄昏朦胧区域的阶段中，原理证据必须被承认，然而法院还会需要很长时间来接受专家测验。 The Admissibility Of Bite Mark Evidence Law Essay Since Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), eighty seven years ago, courts have been challenged in dealing with standards of evidence as they relate to the admissibility of expert testimony. In Frye, an expert witness gave evidence that Frye was innocent of the crime to which he was charged based on the results of his blood pressure testing (a pre-cursor to present day polygraph tests). [1] The court rejected the evidence of the expert witness. In denying Frye’s appeal, it was the judgment of the court that the evidence of expert witnesses must be based on established and generally accepted scientific methods. Because the science was still in its infancy, the blood pressure testing methods used by the expert witness was not widely accepted nor practiced. The use of blood pressure tests were considered experimental, and therefore, the science was lacking general acceptance. [2] The court stated: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." [3] The "general acceptance" standard became the standard used throughout the courts to establish the admissibility of scientific evidence. [4] That is, until 1975. In 1975 the enactment of the Federal Rules of Evidence (FRE) heralded a more expansive view of the rules of scientific knowledge and general acceptance. The Supreme Court ruled that Frye was too inflexible. The court also ruled that it was the role of the trial judge to decide if scientific evidence was generally accepted within scientific circles, and also, if the evidence was reliable, given the methodology used to obtain it. This put the trial judge, and not the scientific community, as the arbiter, or gatekeeper. The application of the FRE rules was uneven as some courts adopted the more flexible FRE rules while others retained the long held, and more stringent, Frye standards. In 1993 Daubert v. Merrell Dow Pharmaceuticals asked the Supreme Court to make a ruling on the acceptability of expert testimony. Specifically, they wanted to know if the Frye standard was still primary. In Daubert, expert witnesses employing different methodology came to opposite conclusions. The prosecution witness testified that there was no causal relationship between the use of a pharmaceutical, Bendectin, during pregnancy and subsequent birth defects. The expert witnesses for the defense, using different methodology, testified that there was a direct causal relationship between the two. The Supreme Court was asked to decide if the Frye standards have precedence over the Federal Rules of Evidence. [5] In the opinion of the Supreme Court, the FRE replaced Frye and made scientifically ‘generally accepted’ one component of establishing the admissibility of testimony from expert witnesses. The court indicated that expert evidence also had to be relevant to the case, and, reliable. In essence the court said that the trial judge must look beyond just the acceptance of the scientific community with regard to the conclusions that are reached. It said that the methodology and core principles are also of importance. There must be a direct relationship from the methodology employed to the conclusions that are specific to the facts. The court stated that the methodology must have been rigorously and extensively tested. If applicable, it must be proven not just in a laboratory setting, but also be used in real situations. Further, it must have been published and subject to peer review and, any potential margin of error must be known. [6] The courts opinion did not solve any of the issues and concerns raised by Frye: Many states still maintained Frye as the standard to be met, while most now adopted the standards established in Daubert. Due to the confusion and differing standards, the court revisited Daubert and, in 2000, Daubert and FRE 702 were amended. Three additional considerations were added. The evidence of expert witnesses is admissible if: 1) it is based on sufficient facts or statistics, 2) it is based on the use of reliable standards and methodology, 3) the facts, standards, and methodology have been logically applied to the issues at hand. The courts guidelines didn’t completely do away with the confusion. On the one hand, the methodology used by the expert witnesses was of key importance. However, it could be both scientifically accepted, and, it could still be deemed inadmissible if the trial judge ruled the conclusions reached didn’t match the case. In Kumho Tire Co. v. Carmichael, 526 U.S.137 (1999), the Supreme Court was asked to come to a decision regarding how far the role of "gate-keeper" should be taken. Specifically, the court was asked to determine if the role of gate keeper applied only to scientific based evidence, or, if it included other categories of expert testimony. The court ruled that FRE 702 didn’t differentiate between scientific and non scientific. Therefore, the court said, that the role of gatekeeper was to decide admissibility of any expert witness testimony. What the court did in Frye, Daubert, and Kumho was leave the trial judge to make the best out of the confusion. Discussion In analyzing modern bite mark evidence in light of the Daubert criteria, especially within the context of contemporary judicial views regarding reasoning under uncertainty, there remains a challenge in developing any uniform consensus as to whether bite mark evidence should be admitted. [7] In Daubert, the court held that four criteria could be used to test the reliability of scientific evidence requiring expert testimony. There are fundamental issues that question if bite mark evidence should be relied on and whether they meet the criteria required by Daubert. Perhaps the first condition is met. But, there is significant disagreement as to whether there is a known rate of error or consistency of results. And, the science has certainly not achieved any level of general acceptance among scientists in the field. It has been stated by respected experts in the field that “no two bite marks, by the same biter, will be identical in every way.” [8] It has also been said by many experts that no two people have the same bite marks. Our teeth and gums are individually shaped not just as a result of the unique qualities of our bones, teeth and facial musculature, but also due to the foods we eat, growth changes, and dental work. While television shows can bend and warp science and leave the impression that bite mark identification is an exact science, the scientific standards that expert witnesses employ vary greatly. There is no common standard. Placing this within the rules established by the trilogy, if expert methodology could not conform to the four rules established by Daubert. One could ask the question why there are so many different standards in place if indeed it is a field of exact science. “No population databases establish the frequency of bite-mark patterns. Nor is there any system of blind, external proficiency testing using realistic models. Error rates are unknown. The few tests that have been attempted demonstrate a disturbingly high level of false positives. [9] Fingerprint uniqueness was not tested until 1996, almost 100 years after expert witnesses have given testimony based on their uniqueness. During the first post-Daubert challenge of expert witness testimony regarding the admissibility of fingerprints, the FBI asked Lockheed Martin to test the uniqueness of fingerprints. It had never before been tested. [10] While the study itself did not meet the Daubert standard – the methodology wasn’t used in the field and since it wasn’t published it would not have had been open to wide peer review – the conclusion on the uniqueness of the fingerprint was accepted and still very much in evidence today. Notwithstanding a serious review of the study methodology found it problematic and error filled. [11] To further compound the doubt regarding the validity of bite mark evidence, a recent report published by the National Academy of Sciences states that “there is not sufficient evidence to support the notion that an expert can match bite marks made on human skin to the dentition of a single person.” [12] The report further stated “Unlike the extremely well-litigated civil challenges, the criminal defendant’s challenge is usually perfunctory. Even when the most vulnerable forensic sciences—hair microscopy, bite marks, and handwriting—are attacked, the courts routinely affirm admissibility citing earlier decisions rather than facts established at a hearing. Defense lawyers generally fail to build a challenge with appropriate witnesses and new data. Thus, even if inclined to mount a Daubert challenge, they lack the requisite knowledge and skills, as well as the funds, to succeed.” [13] In Patterson v Tex. 509 S.W.2d 857, 862 (Tex. Crim. App. 1974), expert witnesses for the prosecution indicated that the defendant’s teeth matched marks found on the victim’s body. They further said that other teeth, that is, some other persons teeth, may also match the mark. The appeal court in this case denied the appeal, not based on the actual evidence in question, but because they had previously admitted similar expert witness testimony in another case. 72 509 S.W.2d 857, 862 (Tex. Crim. App. 1974) In the Ariz. v. Garrison, 120 Ariz. 255, 585 P.2d 563 (1978) the expert witness indicated numbers of a statistical significance to solidify their evidence that the defendant was the only person whose dentition could match bite marks on the victim. Even though it was later established that the statistically significant numbers didn’t originate from standard testing, but from a series of journal articles, the testimony was still allowed. In Carol Ege v Joan Yukins, Warden United States District Court for the Eastern District of Michigan at Bay City. No. 01-10294, the court used the words ‘bunk’ and ‘charlatan’ to describe the methods and character of the expert witness for the prosecution. Ege was convicted of murder primarily based on the expert witness testimony that a mark on the cheek of the victim, was in fact, a bite mark, and asked, based on the 3 plus million local population, if anyone else could match the ‘bite mark’, he replied to the negative. Of note is that Ege was charged with the murder some nine years after it occurred, even though there was evidence that pointed to other people. In addition, the deceased body was exhumed, also nine years after the murder, and it was only then that a mark identified as liver mortis by other expert witnesses, was reclassified as a ‘bite mark. While the court acknowledged that the expert witness testimony should have caused the defense attorney to raise objection, the attorney did not do so. Had the witness not been later discredited, it is possible that Ege would not have been successful in this winning this portion of the appeal. Though there was consensus Daubert standards were not adhered to, this in and of itself was insufficient to grant this section of the appeal. In People v Wright, No. 179564, 1999 WL 33446496 (Mich. Ct. App. Apr. 23, 1999), Dr. Warnick, the same expert witness who made a debacle of the Ege case above, once again postulated statistical evidence as sufficient to indicate only one person could match the bite marks in question. His rendition of ‘4.1 billion to one’ again came from a journal, and not from scientific testing. It was found that the study referenced in the journal was itself flawed and based on each individual tooth placement being independent. Having provided testimony that bite marks could only have been made by the defendant, DNA evidence later exonerated him. Notwithstanding this, teeth independency was disproved; even an abscessed tooth can displace the teeth on each side of it. [14] In People v. Watson, 75 Cal.App.3d 384, 142 Cal. Rptr. 134 (1977) involved a murder conviction where color slides of bite marks were held admissible to illustrate expert testimony. Once again, the standards established by Daubert were intended to use more measurable methods to establish the admissibility of expert testimony. In the case of People v. Johnson, 8 Ill.App.3d 457, 289 N.E.2d 722 (1972) the defendant was convicted of rape, battery and burglary even though the dentist who took casts of his teeth couldn’t identify him as the person from whom he took the casts. Once again, because there was no objection at the time, this was held paramount, not questions of competency of the witness. The court in State of Conn. v. Swinton, 163, didn’t find that bite mark analyses was problematic. In fact, one could say it was admissible in its ordinariness. The court did take issue though that the witness couldn’t explain how the computer imaging software worked, but, ultimately said that admitting the evidence didn’t cause any harm because the expert had already provided an opinion that there was a match before he saw the software generated images. People v. Marx, 54 Cal.App.3d 100, 126 Cal.Rptr. 350 (1975), was the landmark decision on bite marks in California. It was the first time 3 dimensional comparisons were added to the mix, yet it was not considered to be a new approach, and therefore, according to the court, did not need to conform to the Frye standard. [15] The court ruled that the Frye standard was based on the acceptance by the general scientific community of new, or novel, science. In this instance, the court said that the jury didn’t have to rely on ‘blind faith’ as they had the expert witnesses testing methods and tools to examine. [16] These cases are just a small number of cases since Frye and later Daubert and Kumho, wherein the evidence of expert witnesses has focused on the identification of bite marks and identification of who made the marks. Even from this cursory examination, it’s evident that Frye, Daubert, Kumho, and FRE standards are inconsistent. There is little evidence to show that these judges, as gatekeepers, kept proper attention to the gates. As with the century gap between the inception of fingerprint evidence being accepted in courts to validate fingerprinting uniqueness, so too must we ask why there is no push by the court to solidify the practice of bite mark analyses as a viable evidentiary tool. The courts appear to be as confused about the admissibility of expert witness evidence as it relates to bite marks, as is the public. While the public resort to crime and forensic science TV dramas to gain an understanding of the law, albeit a twisted, convoluted, and false understanding, the courts stretch their credibility by refusing to follow established rules and standards on which to base consistent decisions regarding admissibility. Interpretations of the trilogy of Frye, Daubert, and Kumho rules and standards seem to be as changeable as the weather and one would be hard pressed to predict how any court will apply them. Instead of preventing crank science entering the courts as accepted scientific knowledge, the courts appear to be feeding that same evidence on a platter. These same concerns are ignored by the scientific community – how else could it be explained as to why there are no universal standards, methods and practices. There are consistent flaws in the standards adopted to conduct bite mark analyses. It is known that many tests are based on using pig skin for impressions, yet, it is also accepted that pig skin and human skin are inherently different. Marks made on pig skin do not equate with marks made on human skin. [17] It is accepted that there are as many different methodologies used for analyses as there are bite mark expert witnesses, yet again, neither the courts not the scientific industry seem bent on pushing for common standards. [18] Even in the face of contradictory expert testimony, the courts seem to debate not how to demand true scientific methodology, but instead to expend energy keeping evidence in for spurious reasons rather than demand across the board increases in quality of evidence and consistency of methodology. [19] The trilogy appears to have made little difference to the state of confusion that exists in the courts. Evidence that was once admissible, no longer is, and evidence that one could hazard should not be admissible, is accepted out of hand based on previous acceptability standards. |
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