Odontology in Criminal Justice Forensics

Odontology in Criminal Justice Forensics

Odontology has been historically used or indeed, one might say misused within the framework of the judicial system to sway juries against factual evidence and to gain a conviction because the jury fails to understand or cannot understand how evidence can be molded purposely away from the truth or how by being little understood can enhance the perceived importance assigned to those facts.

Flynn McRoberts and Steve Mills write in the Chicago Tribune report entitled: "From the Start, a Faulty Science" states: "The nation's leading forensic experts held their annual meeting in 1970 at Chicago's Drake Hotel, and all of the old guard was there. Fingerprint experts. Document examiners. Pathologists. Mingling among them on that late-winter day was a cluster of dentists who shared an interest in a budding discipline. They called it forensic odontology, a decidedly novel application of dentistry -- identifying violent criminals based on the bite marks they leave on the bodies of their victims. But to create their own division within the American Academy of Forensic Sciences and gain the credibility this would bestow, 10 of these forensic odontologists were needed. Only eight were in the room. The solution: They trolled the meeting rooms of the Drake and recruited a couple of pathologists who also held dental degrees. With that, a new discipline was born, joining other more commonly known investigative tools such as toxicology and bullet matching. Since that day in Chicago 34 years ago, bite-mark comparison has become a regular weapon in the forensic arsenal, with odontologists testifying in courtrooms hundreds of times." (McRoberts and Mills, 2004) David Faigman, University of California Hasting College of the Law professor and co-editor of Modern Scientific Evidence states a belief that bitemarks "probably ought to be the poster child for bad forensic science. it's not simply outsiders or defense attorneys asking fundamental questions. Inside the tight fraternity of odontologists, skeptics are raising concerns about bite-mark comparisons." (McRoberts and Mills, 2004) Dr. Michael Bowers, odontologist and lawyer and who has served on the American Board of Forensic Odontology examination and credentialing committee, which is the odontology's leading professional organization states that the comparisons "are flawed and bashed on wishful thinking, as far as being conclusive scientifically." (McRoberts and Mills, 2004) McRoberts and Hall referred to forensic odontology as being a "science-based art'.

LITERATURE REVIEW

The work of Karazulas (2001) entitled: "New Forensic Odontology Tools" describes advances in forensic odontology, which were used in gaining a conviction against Alfred Swinton in the Carla Terry murder trial. The technology used was newly patented image processing software by the name 'Lucis' which enhancing patterns in the bitemark of the human being and enables conclusive proof of bitemark identification. Lucis is a software that processes Photoshop images and has replaced the older method, which is a less accurate method in a process that traces the teeth biting edges. Furthermore, study conducted on bitemark healing processes have been successfully used in placing the murderer near the victim at the time of the victim's death. The method of proving at match involves taking impressions of the teeth of the individual who is named as suspect and then making a plaster model of the impression and scanner the teeth producing a digital image. The next step is tracing the biting edges of the suspect's teeth using the 'Lucis' software and superimposing the bitemark photo through manual or electronic means using a scanned image of the bitemark in determination of whether the bitemark and the suspect's teeth are a match. The benefits of the Lucis software include the benefit of the patent under which Lucis operates which enables the images to be enhanced in such a way that even when the pictures of the bitemark are not high quality and when the characteristics of the bitemark have began to fade because of the quick healing process of the human body. Image-processing software further assists in semi-transparency imaging of the plaster model which can be "superimposed on the bitemark image instead of using a tracing of the biting edges of the teeth" which eliminates inaccuracies in the process and renders a "clearer picture of the relative characteristics of the teeth and bitemark. Once having confirmed the bitemark as matching the suspect's teeth it is necessary to make a determination of when the bitemark was inflicted on the victim.

In 2003, Sylvia-Louise Avon, a graduate student at the University of Toronto, Canada stated a challenge to convention wisdom in bitemark forensics. In the work entitled: "Grad Student Takes a Bite Out of Forensics" stated is that Avon and her supervisor, Professor Robert Wood of dentistry along with the provincial coroner's office "presented a paper at the annual meeting of the American Academy of Forensic Sciences in Chicago Feb. 21 that questioned the way pathologists determine whether bite marks were inflicted before or after death." (Hall, 2003) Specifically state in the information presented is: "The majority of pathologists assume that if you have a bruise, the bite mark was made before death because you still have your blood pressure and that if you tear or break the underlying vessel, the blood is going to go into the tissue and the degradation of the red blood cells is going to make the skin look yellow, red, black, green," Avon said. Conversely, it is believed that marks inflicted after death do not lead to bruising. This distinction is frequently relied on in court. If I go and testify without any factual basis, then I'm guessing. And that means a man's either going to jail or not. Alternately, someone who should go to jail is going to walk free. There was nothing in the literature to support this interpretation of ante- versus post-mortem infliction of bite marks..." (Hall, 2003) the experiment of Avon and Wood involved bitemarks that were inflicted on a pig with a 'Bite-o-matic', which had been "calibrated to inflict 23 kilograms of force, the maximum amount typically generated by a young man." (Hall, 2003) the report states that no difference can be noted in the bitemarks before and after death of the pigs in this experiment Avon and Wood state: "Morphologically, just on the straight visual look of them, the bite marks produced five minutes prior to death and five minutes after death are indistinguishable." (Hall, 2003) Furthermore, the study of Avon and Wood states findings that the technique referred to as 'translumination', which is the processes of light through a piece of skin - did not enable garnering of information in bitemark analysis.

In a report published in August 2007 entitled: "Indeed and without a Doubt" related is the story of a Mississippi dentist, Dr. Michael West, who is a "self-described forensic odontologist or bite mark analyst. He testified in dozens of cases over the years, almost always for the prosecution. Kennedy Brewer was accused of killing his girlfriend in 1991 and was sentenced to death spending the last 13 years on death row. This conviction was handed down much upon the basis of the testimony of Dr. West who testified that "he found 19 bite marks on Christine Jackson's body which matched Brewer's teeth. West claims he could make the identification because of a chip in one of Kennedy Brewer's top teeth, and because Brewer's upper teeth are sharper than his lower teeth. A defense expert countered that the marks were actually insect bites -- the result of Jackson's body being outside for two days before it was found." (Balko, 2007) Balko (2007) relates that forensic ondontology is "an imprecise field. It often draws heavy scrutiny from other forensics experts. There's a troublingly long list of cases in which someone convicted on the word of a bite mark expert was later exonerated with improved DNA testing. In 1999, one forensic odontologist tested his colleagues with a sample crime scene bite mark during a conference workshop. Six of 10 wrongly traced the bite mark back to an innocent person. But even in an already imprecise field, Dr. Michael West has taken forensic odontology to bizarre, megalomaniacal depths. West claims to have invented a system he modestly calls "The West Phenomenon. n it, he dons a pair of yellow goggles and with the aid of a blue laser, he says he can identify bite marks, scratches, and other marks on a corpse that no one else can see -- not even other forensics experts. Conveniently, he claims his unique method can't be photographed or reproduced, which he says makes his opinions unimpeachable by other experts. Using the "West Phenomenon," West once claimed to have found bite marks on a decomposed woman's breast that previous pathologists had missed." (Balko, 2007) Balko goes on to state that in 2002, the attorneys representing Kennedy Brewer managed to move the state to conduct DNA testing on the semen found in the body of the victim. At the time that Brewer was tried in this case the DNA samples were too small for testing however, new DNA testing methods are able to make determinations on very small samples. In 2002 the crime lab in the state of Mississippi found that the semen in the victim's body belonged to two different men and neither of them was Kennedy Brewer. Balko concludes by stating: "Forensic scandals have been troublingly common of late, with phony experts, fake results, and incompetent testing recently uncovered in Virginia, Maryland, Kansas, Illinois, and Texas, to name just a few. Courts need to take a more active role in weeding out the Michael Wests of the world before they ever take the witness stand. But professional organizations also need to be more vigilant about policing their own. Dr. West's peers should more vocally have questioned his methods long before he was permitted to testify more than 70 times in courts across the country. One would think they'd step up their standards to protect the integrity and reputation of their profession. But these continuing scandals suggest another, more urgent reason: to prevent bad science from sending innocent people to prison." (2007)

The work of Katherine Ramsland entitled: "The Most Famous Bite" relates the 1978 story of two girls in the Chi Omega sorority house at Tallahassee's Florida State University. Both girls were killed by the serial killer Ted Bundy who had killed many females from Washington State down the country and to the state of Florida. One girl had been raped, choked and beaten on the head while the other was strangled with pantyhose and beaten on the head. While no fingerprints, blood, or weapon was found that which was found, a bitemark on the left buttock of one of the girls "was a piece of evidence that was to become a centerpiece during the trial. Ramsland states that it is critically important that the fact that teeth can be chipped, become worn and reshaped and it is "often, that factors [which] helps to distinguish one set of bite-marks from another." (2007) Additionally changing the way that teeth make impressions are: (1) restorations; (2) fillings; (3) rotations; (4) tooth loss; (5) breakage; and (6) injury that make an individual's teeth different from those of other people. There are various systems existing in the world for charting teeth and in fact, Ramsland states that over 200 methods for charting teeth exist throughout the world. The method used in the United States is referred to as the 'universal system' in which "a number is assigned to each of the thirty-two adult teeth, beginning at #1 with the upper right third molar and ending with the lower right third molar. Each tooth has five visible surfaces, and the composite information about each surface makes it possible to make grids, which are known as odontograms. Each individual's grid is unique to that person, and if they have dental disorders, gum problems, or poorly formed teeth, it makes them even easier to identify." (Ramsland, 2007) According to Ramsland, every tooth have a total of five surfaces, which are visible and due to the composite information of each surface grids can be made which are known as odontograms. The grid of each individual is unique to that person and if dental disorders of some type are present, or if the individual has a history of gum problems or teeth that are poorly formed identification is much easier. Ramsland states: "Forensic odontologists develop the skill of comparing dental impressions taken from a person's mouth to bite-mark impressions on the skin (or possibly the bones) of a victim. There are from thirty to seventy-six comparison factors to consider, including matching for striations, whorls, indentations, pitting, and abrasions, and often this is done through computer-enhanced photography. They can also analyze bite marks on food in cases where a perpetrator (even just a burglar) might have taken a bite out of something in the victim's home and left it behind. What experts seek are a sufficient number of points of similarity between the evidence and a suspect to be able to say with a reasonable degree of certainty that this is the perpetrator." (2007) Ramsland states the important fact that some bitemarks leave impressions useful in identification of the perpetrators but others do not leave an impression that is worthy to use for identification purposes. Ramsland states that the physical characteristics of the bitemark wound and the suspects teeth include: (1) Distance from cuspid to cuspid; (2) Shape of the mouth arch; (3) Evidence of a tooth out of alignment; (4) Teeth width and thickness, spacing between teeth; (5) Missing teeth; (6) Curves of biting edges; (7) Unique dentistry; and (8) Wear patterns such as chips or grinding. (2007) All of these characteristics undergo detailed examination and it is preferable that this is through the blind testing method, which is a method in which "the odonotologist is not aware of which teeth impressions belong to the suspect. Ramsland relates the information provided by forensic odontologist, Dr. Lowell Levine who relates that the markings on the skin from bitemarks indicate "such things as jaw musculature, mental state, and tongue-lip coordination of the offender." (2007) Two types of bitemark patterns are listed by Levine, which include: (1) bitemarks that appear to have been inflicted slowly and show a 'suck mark' area with an abrasion patterns that resembles a sunburst; and (2) a tooth-mark pattern, which is an attack or defensive bite. It does not leave as clear a pattern as the first type and is difficult to identify.

The work of C. Michael Bowers, Deputy Medical Examiner for Ventura California's Medical Examiner's Office and Raymond J. Johnson, Forensic Dentistry Consultant for Santa Barbara Sheriff's Office in California entitled: "Digital Rectification and Resizing Correction of Photographic Bite Mark Evidence" states the fact that bitemark forensic analysis has been accepted by the judicial system since 1954 in the United States. The identification of a specific biter has been instrumental in criminal investigations of homicide, sexual assault, and child abuse cases. The majority of bite mark cases involve photographs of bite marks on skin and other substances that are later associated with known dental evidence obtained from suspects. This comparative analysis primarily uses superimposition of these evidence samples. Therefore, the dimensional accuracy and sizing of both evidence images are of utmost importance. Forensic protocols for the photographic reproduction of crime scene evidence demand that a linear scale be placed next to the evidence sample to make an accurate comparison. This known dimensional reference allows the photographic examiner to re-create life-sized graphical reproductions. The presence of photographic distortion is evidenced by the scale's incremental lines appearing nonparallel and not uniformly shaped. Without rectification, the photographed evidence sample will not be representative of its true shape and dimension." (2001)

In an article published by the New York Times in January 2007 entitled: "Evidence From Bite Marks, it Turns Out, is Not so Elementary" states that is that Roy Brown, fifteen years ago, was convicted of a murder by "stabbing, beating, biting and strangling a social workers in upstate New York." (Santos, 2007) the primary evidence in this case was a bitemark, presumably left by Brown however, Brown was released from prison in January 2007 when DNA testing on the saliva that the biter left on the victim proved Brown was innocent. When Brown was convicted of this murder, he had two missing front teeth while the bitemarks had six tooth imprints. (Santos, 2007) Bitemark analysis is an imprecise tool demonstrated by a 1999 study conducted by the "American Board of Forensic Odontology, a professional trade organization which stated a 63% rate of false identifications." (Santos, 2007) Santos states that courts are "growing more skeptical of the absolute conclusions drawn by bite-mark experts and, in turn, are becoming more receptive when defense lawyers rebut the analysis." Santos additionally relates that with increasing pace of convictions that are overturned lawyers are taking steps "to counter what they call the 'C.S.I. effect' when juries become overly impressed by forensic evidence. During jury selection, it is not uncommon for them to ask potential jurors about their television-watching preferences to weed out those who seem unable to separate fact from fiction." (Santos, 2007) Experts state that the key for defense to bitemark analysis is for criminal defense attorneys to "know enough about the subjective components of bite-mark analysis to refute it effectively in court." (Santos, 2007) Cited as limitations in this type of analysis due to bias include the statement of David L. Faigman, professor at the University California Hastings College of the Law in what he terms the 'context effect' which refers to the fact that generally the forensic scientist has a lot of information about the suspect prior to conducting analysis on the bite mark "it's easy for them to see what they are expected to see...experts can basically be prepped to see a match." (Santos, 2007) Santos reports that in 1995 forensic odontologists stated they would avoid use of the term 'match' in reporting their analysis "so as to avoid the impression that the bitemark belongs to a specific suspect and no one else. But similar, if nuanced, phrases still find their way into court, causing confusion. The courts, however, do not have guidelines restricting the use or presentation of bite-mark analysis." (Santos, 2007) the work of the American Board of Forensic Odontology, Inc. Diplomates Reference Manual Section III: Policies, Procedures, Guidelines and Standards describes the Bitemark Methodology Guidelines of the ABFO and states that historically the first workshop on Bitemarks took place in 1984 because of the need "for forensic dentists to agree on basic methodology used in bitemark cases so as to maximize the quality, completeness and validity of the collection and analysis of bitemark evidence.

CNN News recently reported in an article entitled: "Bite Mark Evidence Disputed in Murder Cases" that Dr. Michael West, "swore under oath that a dead girl had bite marks all over her body and that they were made by the two front teeth of the man charged with murdering her." (2008) Not only once did West swear under oath that a three-year-old girl was murdered by the wrong man in the same town, indeed no, West was elemental in placing two innocent men behind bars and sentenced to death. However, in the February 29, 2009 new report stated is that "Today, more than a decade later, both Brewer and Brooks are out of prison, and prosecution have all but pronounced them innocent. The reason: A third man confessed to both killings after DNA connected him to one of the rapes, investigators say." (CNN, 2008) it is not surprising that Michael Wests' testimony and bitemark identification methods are under strict criticism in the state of Mississippi. Peter Neufield, director of the 'Innocence Project' is noted as having stated: 'You have people who engaged in misconduct and manufactured evidence and we've proved it...these two cases are going to be an eye-opener for the people of Mississippi about some of the problems they have in criminal justice and how easy it will be to make it right..." (CNN. 2008) Early in February 2008 it is reported that Justin Albert Johnson, "a 51-year-old Brooksville man who had been a suspect early on and was arrested and charged in one of the murders. Investigators said he confessed to both killings after analysis of DNA proved that his semen was in the victim in the Brewer case." (CNN, 2008) the report additionally relates the surprise in the statement of panel member Dr. David Senn, a forensic odontologist for the county medical examiner in San Antonio who is stated to have informed the AP: "...the experts were "scratching their heads to figure out how he could come to the conclusions he came to. Forensic odontology is a very sound science when it's applied properly. In our opinion, it was not applied properly," Senn said. Of West's theory that the purported bite marks were made by two front teeth, Senn said: "To bite someone, you have to bite with both jaws. The story doesn't make sense." (CNN, 2008)

The work of Elizabeth L. DeCoux entitled: "The Admission of Unreliable Expert Testimony Offered by the Prosecution: What's Wrong with Daubert and How to Make it Right" published in the Utah Review (2007) speaks of the case of Ray Krone, wrongly convicted of a case of murder based on bitemark evidence. In 1992, Ray Krone answered his door when police officers knocked to ask him questions about the murder of a cocktail waitress. Krone, knowing he was innocent of the murder readily complied with all requests of the police and even after he was taken into custody failed to hire an attorney to represent him because he was so sure that his innocence would stand however, Krone would ultimately be tried for capital murder and convicted based on no other evidence than a bitemark on the breast of the cocktail waitress. DeCoux states: "Throughout the Kafkeaeque ordeal, Krone steadied himself by contemplating this riddle: 'I didn't do it, so how can there be unquestionable evidence that I did?' Krone was correct, the bite-mark evidence in his case was not unquestionable. It was unquestioned. No judge at any point in the long procedural history of the case questioned the bite-mark evidence e stringently enough to reveal its fatal flaws." (DeCoux, 2007) Due to the bitemark evidence being unquestioned, Raymond Rawson, odontologist, "took the stand and wrongly identified Krone as the source of the bitemarks on the victim's body. For the same reason, Rawson gave his identification testimony without revealing that Rawson had shown the bitemarks and the impression to his own mentor, who told Rawson that Krone's teeth were not the source of the bitemarks."(DeCoux, 2007) DeCoux states four hypothesis for the extraordinary success of prosecutors use of bitemark evidence: (1) science, technology and other specialized fields have advanced to such an extent that almost all expert witnesses - not just those offered by prosecution experts-use reliable principles and methods; (2) success. It is conceivable that prosecutors have access to the best scientific resources in the form of government laboratories and specialists. It is also conceivable that prosecutors are motivated by a desire to try only the strongest cases. If the prosecution's expert witnesses are simply more reliable, then the statistics, which appear to be skewed, may simply be a reflection of that reliability; legal standards governing the admission of expert testimony are flawed in a way that causes prosecution testimony -- even when unreliable -- to be admitted at a much higher rate than the expert testimony offered by other classes of litigants; and (4) if the substantive law regarding admissibility of expert testimony is sound, then the admission of unreliable testimony for the prosecution results from judges' failure to apply that law correctly. (DeCoux, 2007) DeCoux writes that in order to ensure the reliability of expert testimony "requires analysis beyond these hypotheses. What is reliability? Case law defines reliability in expert testimony as being based on the proven methods of science. If a court is to apply that definition, then the court must know what the "methods of science" are. A court that simply accepts an expert's statement that his methods are "methods of science" abdicates the court's responsibility to determine the reliability and therefore the admissibility of expert testimony." (DeCoux, 2007)

DeCoux states that the reliability of identification "based on bitemarks found on human skin is highly questionable. Review of the available scientific data demonstrates that the flaws in these identifications result from the nature of the bitemarks. At least one study places the false positive rate for bite-mark identification as high as sixty-four percent. These scientific findings raise grave concerns about the use of bitemark identifications in court." (DeCoux, 2007) DeCoux states that the strict controls that science uses to "heighten the reliability of other problematic identification procedures" are not in place in the case of bitemark identification in the courtroom. DeCoux states that there are steps that would bring about a great reduction that the "odontologist would 'rubber stamp' law enforcement's choice of suspects." (2007) DeCoux states that those steps would be inclusive of: "providing the odontologist with seven or eight dental impressions, only one of which is the suspect's, and asking the odontologist to identify which of those several impressions inflicted the bite-marks on the victim. Such a procedure would improve the methodology, or mark it as unusable, because it would expose errors. Allowing the odontologist simply to say yes or no to a pairing of one bite-mark and one dental impression (the defendant's) conceals errors. As long as courts accept the methodology in which errors are inherently undiscoverable, odontologists will continue to use the one-bite-mark/one-defendant methodology. By contrast, an odontologist required to choose the source of the bitemark from the dental impressions of several different persons will give a response that, if wrong, can be established as wrong as soon as it is given, rather than after an innocent man has served ten years on death row, as Ray Krone did." (DeCoux, 2007)

DeCoux writes: "The requirement that an expert opinion be stated to a reasonable degree of scientific certainty, highlights a significant weakness in bite-mark identification evidence- a weakness best seen in the 1999 ABFO study. The greatest concern raised by the ABFO study may not be the accuracy and reliability of the thirty-two participants (although those concerns do arise); instead, the greatest concern may be the accuracy, reliability, and methodology of the three forensic odontologists whose opinions were used as the "right answers." Although the study does not quote the phrasing of the expert's trial testimony regarding his degree of certainty (and in fact the authors may not have had that information), it would be a surprising departure from the substance and procedure of admitting expert opinions if the forensic odontologists had not rendered their real life opinions at trial to a reasonable degree of scientific certainty. That language, as noted, is typically required before an expert opinion is admitted. Even when the words themselves are not required, the requisite level of certainty is. Yet, less than twenty percent of the time the thirty-two board-certified forensic odontologists who participated in the study agreed with the testifying odontologists that an identification decision could be made in those cases to a reasonable degree of scientific certainty." (2007) Several factors are stated by DeCoux to contribute to the "troubling level of inaccuracy in bitemark identification and to the concern expressed regarding the use of bitemark identification in court." (2007) it is acknowledge among odontologists that: (2) bitemark identification is a subjective process; (2) some level of distortion is present in practically every bitemark rendering identification complicated or even impossible. Sources of distortion include "movement at the time of the biting - movement of the assailant and/or the victim; the elasticity of the skin, changes in the skins occurring as time elapses after the bite, and changes in the posture of the body, from the moment the bite occurs to the moment of the photograph is taken for use in identification." (DeCoux, 2007) DeCoux stats that bitemark identification "is always subjective and often simply wrong." (2007)the 1999 AFBO study recognizes that "the stakes are high and the profession has an obligation to take steps to make an accurate identification, or exclusive, when possible and perhaps more important, to acknowledge when a correct identification or exclusion is not possible. That obligation does not rest on forensic odontologists alone. The justice system places the responsibility of gate-keeping on the shoulders of the trial judge to ensure that expert testimony reaches the jury only if it is relevant and reliable." (DeCoux, 2007) Bitemark identification is troubling in three ways according to DeCoux including: (1) bitemarks have been used to identify individuals as murderers even though DNA testing eventually cleared each of them; (2) forensic odontologists make bite-mark identification in court even though more than eighty percent of the identification decisions by made by their colleagues rank those very bitemarks as incapable of being identified to a reasonable degree of scientific certainty; and (3) 12.5% of the board-certified forensic odontologists participating in the study performed at the level of "poor" accuracy. (DeCoux, 2007) DeCoux additionally states: "A review of scientific articles establishes that bitemark identification are unreliable. A review of case law establishes that the identification are admitted into evidence in spite of their lack of reliability." (2007) Bitemark identifications are in violation of the mandates of Daubert that expert testimony be admitted "only if it is based on reliable methodologies." (DeCoux, 2007) According to DeCoux: "When expert witnesses compare a suspect's teeth with marks left on a victim's skin, the result is a false positive approximately sixty-four percent of the time. Why would any justice system allow such a charade to continue? Daubert requires that the methodologies underlying an expert's opinion be reliable. Yet, 12.5% of the board certified forensic odontologists participating in a study on bite-mark identification had a score putting them in the category of "poor" accuracy. These odontologists could be testifying tomorrow in a trial that could send a defendant to his death. If a methodology with a sixty-four percent false positive rate is reliable, then reliability has no meaning." (2007) DeCoux states the recommendation of certain changes in law that govern the admissibility of expert testimony, which includes the following recommended changes:

1) the Trial Court or a Special Master Should Review Recent Scientific or Technical Articles on the Topic and Address the Conclusions of Those Articles in Its Admissibility Ruling: The trial court in its ruling should identify scientific and technical articles published on the pertinent topic in the relevant period preceding the ruling. The court should make findings of fact and conclusions of law, on the record, to explain specifically how recent scholarship addresses the reliability of the testimony. To gain an accurate understanding of the basic tenets of the specialty, the court should make use of the different sources of information at its disposal. The court should appoint a special master or its own expert or conduct detailed voir dire of the party's proposed expert, as the court sees fit. After satisfying itself in this manner, the court should explain, in its ruling, why it relied on or rejected any recent scholarly writing on the topic.

2) the Trial Court Should Reject Expert Testimony Based on Methods that Are Generally Rejected by Experts in the Applicable Discipline: Frye's requirement of general acceptance is inappropriate. However, when a methodology has lost credibility, i.e., when it has been thoroughly reviewed by the discipline from which it arises and roundly rejected, it is unreliable and thus inadmissible. In admitting or excluding any expert testimony, the court should make a finding as to whether a method has been generally rejected, specifically addressing any indicia of general rejection found in the literature or brought to the court's attention by the party opposing admission of the testimony, the special master, or the court-appointed expert. In this context, "general rejection" means much more than the absence of "general acceptance" as that term is used in Frye. The general rejection of a method, suggested here does not occur when the members of the profession have simply not examined the method adequately to make any kind of general determination as to its reliability. Nor does general rejection occur when members of a discipline are largely neutral regarding a particular method. Rather, general rejection occurs when a skilled profession, through Daubert-recognized methods such as peer review and error-rate analysis, evaluates the validity of a method or discovery and then rejects it. In the face of such general rejection, the method or discovery should be recognized by courts as unreliable unless and until new scientific data warrants reevaluation.

4) Trial Court Should Exclude Thumbs-Up/Thumbs-Down Identifications of a Perpetrator: Identification of the perpetrator of a crime by an expert is unreliable when the expert is asked to make only a yes-or-no decision as to whether the single suspect identified by the police is in fact the perpetrator. Identifications are reliable and admissible only if the expert successfully identifies the perpetrator by selecting him from a number of samples. There must be multiple samples, but the exact number depends on what is reasonable and appropriate to the methodology. For example, an odontologist given one bite-mark (known to be the victim's) and one dental cast (known to be the suspect's) and asked whether they match, is not subject to a valid test of reliability, because in the expert's desire to help solve the case, the expert may simply say yes, regardless of harbored doubts. By contrast, if the odontologist selects the suspect's dental impression from among several others, then all other factors being properly accounted for, that identification is reliable. The recommendation would apply to other types of identification by experts, not just odontologists: the identification is reliable if the expert is offered an array of samples and selects the suspect's, but an identification in which the expert simply answers yes to the prosecution's yes-or-no question is not reliable.