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Guest Opinion. Of all the releases of opinions from the U.S. Supreme Court this season, one that did not get a lot of attention is one where the Court denied certiorari in a case challenging a criminal conviction based on bite mark evidence—a field of expertise that is based on practice and skill, not scientifically demonstrable methods. Even the expert who had testified in that case, recanted his expert testimony, based on updated science.

On July 2, 2024, the U.S. Supreme Court denied certiorari in Mcrory v. Alabama, a case where a man had spent 40 years behind bars, based on scientific testimony that has since be recanted by the expert.

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The ideal case to determine whether bite mark analysis was once and for all not admissible, was given a pass by the U.S. Supreme Court. But why?

Bite mark testimony’s slow demise

As early as 2005, Congress had asked the National Academies to review forensic science for its reliability, including bite mark testimony. The NAS Report (2009) concluded that there is “no evidence of an existing scientific basis for identifying an individual to the exclusion of all others” via bitemark evidence. In 2016, the President’s Council of Advisors on Science and Technology (PCAST), wrote a report evaluating which of the scientific forensic fields in the NAS Report were now improved enough to be used in court, that is, those which have become “foundationally valid and reliable” enough for use in courts. The report found that:

“bitemark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards.” Further, the Report found that the “prospects of developing bitemark analysis into a scientifically valid method to be low.” 

In refusing to hear the case, Justice Sotomayor writing for the Court foreshadowed the Court’s action:

Several States have already tackled this troubling problem through targeted postconviction statutes. These statutes create an efficient avenue for innocent people convicted based on forensic science that the scientific community has now largely repudiated.

Further, the Court noted that there has already been 30 cases which have been overturned due to the use of bite mark testimony.

The U.S. Supreme Court has always been a little reluctant to admit that while they may be superstars in the law, they tend to be even less proficient in understanding science and technology than the society they serve. Failing to accept this case, this long-overdue determination was punted to the state legislatures to pass a habeas corpus statute that would allow a petitioner to ask for a new trial based on a discredited science or testimony that had been a at least partly responsible for the criminal conviction. This literally means the prisoner is asking to release his body to appear before court to ask for a new trial or exoneration. A state Junk Science Writ of Habeas Corpus is called for. (Texas led the way in passing such a statute.) But this will take time for potentially wrongly imprisoned individuals to wait maybe a decade for such a law to pass in their respective state.

This raises a bigger concern that the U.S. Supreme Court is reluctant to address technology for which they have little or no understanding. Just this week, they reversed the Chevron deference standard which meant courts could defer to agency expertise in matters where the statute is vague or unclear. (The Court can still take the agency interpretation of a statute, but they are no longer bound by any established, principled way to do that.) This reversed any result was increasing reliance on agencies with highly specialized scientific subject matter, like EPA and FDA which had the highest number of Chevron deference decisions.

Technophobes

Several years ago, I collected some quotations from U.S. Supreme Court opinions that were examples of cringe-worthy statements from the Associate Justices about technology. In all cases, they were not particularly concerned with their lack of “tech-saviness.”

On originalism and emerging technologies

Justice Alito, arguably the most analogy-obsessed of the Court, best summed up the Court’s historical handicap when he teased Scalia in 2011, saying: “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

On analogies

“I think there are very, very few things that you cannot find an analogue to in pre-digital age searches,” Justice Breyer said during the Riley oral argument. “And the problem in almost all instances is quantity and how far afield you’re likely to be going.”

On GPS

Justice Breyer, during the Riley oral argument, interrupted a discussion about the GPS capabilities of smartphones with another analogy joke: “I don’t want to admit it, but my wife might put a little note [with directions] in my pocket.” Riley v. California

Intellectual Property

Justice Kennedy, for example, appears blissfully unaware of the new definition of “troll,” and covered for his ignorance with a joke during oral argument for eBay v. MercExchange: “Is the troll the scary thing under the bridge, or is it a fishing technique?” This raised eyebrows in the patent industry, where “patent troll” is a stock phrase.

Computer programming

In 2006, for example, Chief Justice Roberts doubted that eBay was an actual invention. He asked the lawyer, Seth Waxman, what the invention of eBay was, and when Waxman explained it as an electronic market, Chief Justice Roberts responded flippantly, saying, “I mean, it’s not like he invented the internal combustion engine or anything. It’s very vague.”

When Waxman pushed back at Roberts, pointing out that “I’m not a software developer and I have reason to believe that neither is Your Honor,” Roberts fully explicated his contempt for the technology. “I may not be a software developer, but as I read the invention [of eBay], it’s displaying pictures of your wares on a computer network and, you know, picking which ones you want and buying them.” He next said about the multibillion-dollar Internet corporation: “I might have been able to do that.”

This came from the man who four years later asked the difference between a pager and an email.

On gaming

“But they also try to learn on their own. In one case, involving violent video games the first year she was on the court, justices who had never played the games before dove in and gave them a try, Kagan said. "It was kind of hilarious," she said. She didn't say which games they played.”

So what?

The consequences of the risks of having the people who decide “what the law is” who do not understand the technology in the facts and often at issue, is a risk that may be too great.

Unfamiliarity with the societal context of the technology

 “Isn’t it somewhat worrisome that arguably the most important people in America are making major decisions about something so embarrassingly foreign to them?”  Amar Toor of Switched.

Unawareness of the stage of development of the technology

Justice Anthony Kennedy, writing for the Court, has stated that the ubiquity of these new media tools means that some people may consider them “necessary instruments for self-expression, even self-identification.”8 But he has also implied that the Court may lack “the knowledge and experience” to make “[a] broad holding”

Justice Kagan commented in response to counsel’s argument that GPS was a kind of 1984 invasion of privacy but our expectation of privacy has changed since then.  To that, she objected saying, “Mr. Given, that seems too much to me -- I mean if you think about this and you think about a little robotics device following you around, 24 hours today any place you go that's not your home, reporting in all your movements to the police to investigative authorities, the notion that we don't have an expectation of privacy and that the notion that we don't think that our privacy interest would be violated. by this robotic device? I am not sure how one can say that.”

What next?

Since the U.S. Supreme Court is avoiding making the hard choices about the legal reliability of some areas of forensic sciences, maybe it is time to require the Supremes take an annual CLE on technology and then show competency on technologies commonly used in society. The dismissal of Chevron deference, declaring that it is their job to determine what the law is (Marbury v. Madison), without the need of agency expert opinion on the legal interpretation of statutes further ensures their isolation from scientific and technological expertise and that is not a good trend in a society where adoptions of emerging technologies are expected to continue.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.

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