U.S. District Court for the Southern District of New York. (Photo:  Rick Kopstein/ALM)

A U.S. Defense Department museum has unconstitutionally denied the Innocence Project access to archives containing information on bite mark analysis—a forensic science the organization calls tragically flawed and thoroughly discredited—the group has said in a new federal suit.

The process has led to “untold numbers” of convictions, yet the group says the museum has coordinated with the American Board of Forensic Odontology to deny it direct access, as well as through a Freedom of Information Act request, because of the group's critical view of the process, according to the complaint filed in the U.S. District Court for the Southern District of New York.

“The Museum denied access because the Innocence Project has been an outspoken critic of forensic odontology and plans to conduct research that could further expose both its scientific defects and human toll, casting the ABFO in a bad light,” the complaint claims. “This violates the First Amendment: The government may not block access to a public archive because it disfavors a researcher's viewpoint or because a researcher plans to publish facts and develop arguments that are uncomfortable or embarrassing.”

The Department of Defense-run National Museum of Health and Medicine is the repository of the ABFO's historical papers. The organization is the “primary organization that has fostered forensic bite mark analysis,” according to the Innocence Project. Indeed, on the ABFO's website the board provides a standards and guidelines for evaluating bite marks, last updated February 2018.

The Innocence Project has long been a critic of the use of bite-mark analysis by prosecutors during trial. Attorneys with the group have previously called the analysis “the poster child of unreliable science.” The group estimates that at least 30 wrong convictions and indictments have been attributed to the use of bite mark evidence, with “many more” convicted individuals still in prison.

Despite what it claims to be growing evidence against the use of bite mark expert testimony at court, the complaint claims the ABFO has taken a strong stance against challenges to the reliability of such testimony.

In an effort to examine how bite mark analysis methods were developed, as well as to review the work individual forensic odontologists did in criminal cases stored in the archive, the Innocence Project sought a special research appointment from the National Museum of Health and Medicine.

According to the complaint, despite an initial response that suggested the request would be granted, the museum ultimately rejected the request after the museum's archivist conferred with the ABFO. The museum stated in a formal letter that it disagreed with the viewpoint of the researchers, their likely findings, and its planned speech and advocacy on behalf of potentially wrongfully convicted people.

The advocacy group went a step further and filed a Freedom of Information Act for both the information in the archives it sought to review, as well as for correspondences between the museum and the ABFO that might corroborate the motives for denying the group access in the first place.

Despite the rule that an agency respond within 20 business days, the complaint claims the FOIA request filed nearly a year ago has yet to generate a substantive response.

Innocence Project attorney M. Chris Fabricant said the museum's decision was a disappointing one, especially considering its stated goal of promoting the science and history of medicine.

“One wonders what is being hidden, to put up such a roadblock about what should be fairly straightforward data,” Fabricant said.

The suit claims the federally run museum has violated the group's First Amendment protections against viewpoint discrimination and retaliation for protected speech. The suit also claims the museum violated the Administrative Procedure Act for allegedly colluding with ABFO to deny the request, and for a violation of FOIA.

A spokeswoman for the museum did not immediately respond to a request for comment on the lawsuit. A similar request sent to the president and chairman of the ABFO and other executives at the group also generated no response.

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