EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, July 12, 2017

5th Circuit Finds No Ground for Relief Against Bite Mark Experts Who Testified at Trials of Men Who Were Later Exonerated

Bite mark comparison/analysis is a largely discredited forensic science field. In its report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, the President’s Council of Advisors on Science and Technology noted that "studies reported in 2009 and 2010 on bitemark evidence...found that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter." Does that mean that exonerates should be able to bring civil lawsuits against bite mark experts who testified against them at trial? According to the recent opinion of the Fifth Circuit in Brewer v. Hayne, 2017 WL 2784155 (5th Cir. 2017), the answer is (usually) "no."

Brewer actually involved two wrongful convictions:

1. Kennedy Brewer was convicted of capital murder in connection with the rape and murder of a three-year ("Christine") old in Mississippi.

Dr. Hayne, a private pathologist who performed autopsies for the State of Mississippi, concluded that Christine had been raped and had died from strangulation. Noticing what he suspected to be bite marks on the body, Dr. Hayne requested the assistance of Dr. West, a dentist and forensic odontologist. At Brewer's trial, Dr. West testified that he found nineteen human bite marks on Christine's body—all made with only the upper arch—which he concluded belonged to Brewer.

Brewer was convicted of capital murder and sentenced to die. Later, DNA evidence was taken from semen on Christine's body; testing excluded Brewer as the source but was a match for Justin Johnson, who confessed to the rape and murder.

2. Levon Brooks was also convicted of murder in connection with the rape and death of a three year-old ("Courtney") in Mississippi.

Dr. Hayne concluded that Courtney had been raped and that the cause of death had been freshwater drowning, finding contusions on Courtney's body, including one on the back of her right wrist that he believed could have been a human bite mark. Dr. West was brought in for an expert opinion, and he took dental impressions of a total of thirteen people, including Johnson, who would later confess to the crime. As the alleged bite mark consisted of only two imprints, Dr. West believed they were from an upper arch, and were made by the perpetrator's two front teeth. After excluding the other twelve individuals, Dr. West concluded that Levon Brooks, an ex-boyfriend of Courtney's mother, had inflicted the marks.

While being interviewed about the death of Christine, Johnson confessed to abducting, raping, and murdering Christine as well.


Both Brewer and Brooks subsequently brought Section 1983 lawsuits against Dr. Hayne and Dr. West, "alleging that their false and misleading reports caused his wrongful prosecution and conviction."  While the district court granted the defendants summary judgment by concluding that they had qualified immunity, the plaintiffs claimed on appeal that there were triable issues of fact based upon:

(1) other expert opinions that have concluded that there was “no scientific basis” for determining the contusions on the bodies were bite marks and that “Dr. West knew or should have known that they were not bite marks”; (2) other expert opinions that determined that finding nineteen bite marks made only with the upper teeth “is unreasonable and unprecedented”; (3) a previous case where an expert for the defense testified that he believed that there was no bite mark present until Dr. West, in an effort to match a mold of the accused's teeth to the supposed mark, pressed the mold into the flesh; (4) the “extraordinary frequency” with which Defendants found bite mark evidence—over one hundred times and in every so-called “rape overkill” case; (5) Defendants' failure to produce any other experts who agreed with their conclusions; and (6) the allegedly “checkered” professional histories of Defendants. Finally, while Plaintiffs argue that they are not required to provide a motive, they contend that a reasonable jury could find that Defendants were incentivized to fabricate evidence by the inherent pressures forensic analysts face from the State.

The Fifth Circuit, however, agreed with the district court, concluding that

Plaintiffs have made a compelling showing that Defendants were negligent in their forensic analysis, but negligence alone will not defeat qualified immunity. Viewed in the most favorable light, Plaintiffs' evidence is not suggestive of an intent to fabricate. The disagreement voiced by Plaintiffs' experts is evidence that Defendants were mistaken in their conclusions or methodologies, but no more. Likewise, the evidence of the “extraordinary frequency” with which Defendants found bite mark evidence certainly undermines the reliability of the forensic odontology techniques they employed—and perhaps the field in general—but does not lead to an inference of intentional fabrication.



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It’s a shame the court dodged the recklessness question (p.9 n.23). I do think recklessness is sufficient to defeat qualified immunity, such that the plaintiffs would not need to establish “intentional fabrication.” 1983 plaintiffs just have to prove the government was “deliberately indifferent” to the likelihood that constitutional violations would result from the conduct at issue. That’s essentially a recklessness test. See Ryan v. Armstrong, 850 F.3d 419, 425 (8th Cir. 2017) (“Establishing the subjective component of a deliberate indifference claim requires showing ‘a mental state akin to criminal recklessness’ and neither negligence nor gross negligence are sufficient.”). I would think if there’s any question that a bite mark or other forensic expert was actually aware of a serious likelihood that his/her methodologies were unreliable, that would be enough to defeat qualified immunity.

Posted by: Sam | Jul 13, 2017 7:15:42 AM

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