State v. Fortin

Koblitz, P.J.A.D.

Defendant Steven R. Fortin, whom juries twice convicted of a brutal 1994 sexual assault and murder, appeals from a May 4, 2018 order denying his motion for a new trial based on newly discovered scientific evidence that casts doubt on the reliability and scientific validity of bitemark identification. We affirm.

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In 2007 defendant was retried and convicted of murder, felony murder, and two counts of aggravated sexual assault. Although defendant's convictions carried a sentence of death, the death penalty was abolished in New Jersey prior to the penalty-phase trial. See N.J.S.A. 2C:11-3. After a penalty-phase trial before a new jury in 2010, defendant was sentenced to life without parole. We affirmed defendant's conviction and sentence. State v. Fortin, No. A-1163-10 (App. Div. Oct. 20, 2015) (slip op. at 40-41, 2015 WL 6132920), certif. denied, 224 N.J. 125, 129 A.3d 331 (2016).

Presented as an application for post-conviction relief in 2018, defendant moved for a new trial based on newly discovered scientific evidence regarding the reliability of bitemark evidence. He argued that since 2007, several wrongful convictions based on bitemark identification had been overturned and a consensus had emerged disproving the fundamental premise underlying the forensic discipline.

I. The State's 2007 case.

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Several experts testified on behalf of the State at trial with regard to the bitemark evidence [on victims M.P. and V.G.]. . . .

Dr. Lowell J. Levine, an American Board of Forensic Odontology (ABFO) Diplomate and board certified forensic odontologist, opined within a reasonable degree of scientific certainty that based on his review of the autopsy photos, M.P. had a bitemark on her left breast and multiple bitemarks on her chin. Levine compared the bitemarks to the impressions taken of defendant's teeth and concluded that the bitemarks on M.P.'s chin were consistent with having been caused by defendant, the injury to her nipple was consistent with a bitemark but he could not determine if it was caused by defendant, and that if M.P.'s arm was raised when the bitemarks to her breast occurred “then there is a high degree of probability within reasonable scientific certainty it was done by [defendant].” If her arm was not raised, Levine concluded that the bitemark “could have been done by [defendant],” but he could not make that determination with “a high degree of probability.”

Levine also found, within a reasonable degree of scientific certainty, that V.G. had multiple bitemarks on her chin and an egg-shaped bitemark on her left breast. The injury to her left nipple was consistent with having been caused by teeth, but he could not make that determination “with reasonable scientific certainty.” He compared the bitemarks to the molds of defendant's teeth and concluded that defendant could have caused the bitemarks to V.G.'s chin, and that the bitemarks to her breast were “consistent” with defendant. Levine emphasized that while he could not “say with certainty [defendant] did it,” he could not “exclude [defendant] either.”

Levine demonstrated for the jury how he made the comparisons by placing the edges of the model of defendant's teeth over the injury pattern depicted on the photos of M.P.'s and V.G.'s bitemarks, and then finding points of similarities between the model and the photos. He explained that bitemarks become visible through bruises that exhibit certain characteristics.

He stated that bitemark comparison theory is based on the idea that every individual has a unique set of teeth. He demonstrated that fact by comparing the mold of defendant's upper teeth, which were very straight with spaces between them, to the molds of three other individuals' teeth. He admitted it was not a precise science.

Defense counsel questioned Levine about a previous case in which he testified that the bitemarks were to “a high degree of probability” caused by the defendant, but DNA evidence had exonerated that defendant.

II. The defense at trial.

Dr. Norman D. Sperber, a practicing dentist, forensic odontologist and ABFO Diplomate, testified as an expert in forensic odontology for the defense. Sperber testified that bitemark analysis has several serious limitations because skin is a poor medium for recording the pattern of teeth because it is “very movable” and “very unstable.” He explained that skin is elastic and thus indentations made by teeth will rebound, leaving a mark smaller than the biter's teeth. Further complicating the analysis, bitemarks are generally bruises consisting of the diffusion of blood under the skin, and therefore do not accurately depict teeth marks.

In contrast to identification by dental x-rays and DNA analysis, he maintained that bitemark evidence was not reliable nor a “true science” and was more useful in excluding than identifying suspects. He testified that bitemark analysis testimony had been responsible for many cases of misidentification, including a case in Arizona against a defendant, who had been nicknamed “the snaggletooth killer,” and was eventually exonerated by DNA evidence.

Despite his reservations about the reliability of bitemark evidence, he reviewed the autopsy photos and determined that the lesion on M.P.'s chin was “probably” a bitemark, but that the one on her breast was most likely not. Sperber demonstrated how he superimposed the overlay of defendant's bite pattern over the photograph of the marks on M.P.'s chin and breast, pointed out how the overlay and photograph did not match, and testified that based on that comparison, he concluded that defendant was “excluded absolutely” from having made the bitemarks. Sperber admitted, however, that he had not reviewed V.G.'s bitemarks. He also admitted that he had testified in another case that bitemark evidence was helpful and reliable.

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III. Motion for a new trial.

In support of his motion for a new trial, defendant submitted a certification and report by Dr. Charles M. Bowers, a board certified forensic odontologist, who opined that as a result of “the advancement of science since [the retrial in] 2007,” Levine's testimony was “irretrievably flawed,” and the admission of bitemark evidence “would not now be considered acceptable as a means of human identification.”

Bowers set forth that Levine, as an ABFO Diplomate, was subject to the ABFO standards and guidelines relating to bitemark evaluations. He maintained that under the revised ABFO guidelines, Levine's 2007 testimony at defendant's retrial that there was a “high degree of probability within reasonable scientific certainty” that a bitemark was caused by a specific individual was no longer permitted. The revised guidelines limited bitemark linkage testimony to a conclusion that: “1) the suspect cannot be excluded[;] 2) the suspect is excluded[;] or 3) there is insufficient evidence for analysis.” He claimed that those changes were “due to the growing number of DNA exonerations” since defendant's 2007 retrial.

According to Bowers, “[t]he record of wrongful convictions associated with bitemark identification opinions has expanded extensively since ... 2007.” “As of 2018, there have been [twenty-eight] exonerations, case dismissals, and incarceration releases, where the wrongful conviction of indictment originally rested on bitemark evidence.” Bowers had been involved in nine of those exonerations. Levine had been involved in two known wrongful convictions and indictments. Bowers emphasized that “[c]ases where defendants have been exonerated after [f]orensic dentists have, at trial, used the same terminology, techniques and non-science based assumptions” as Levine.

Bowers set forth that since 2007, a number of independent scientific bodies have rejected the scientific basis used in bitemark analysis. First, Bowers cited to a 2009 report by the National Academy of Science (NAS), a private, nonprofit scientific society that advises the federal government on scientific and technical matters, which addressed the scientific validity of several forensic disciplines, including bitemark evidence. See Nat'l Research Council of the Nat'l Academies, Strengthening Forensic Science in the United States: A Path Forward 173-76 (2009).6 In its report, the NAS stated that: “Although the identification of human remains by their dental characteristics is well established in the [f]orensic science disciplines, there is continuing dispute over the value and scientific validity of comparing and identifying bitemarks.” Id. at 173 (footnote omitted).

The NAS listed the following basic problems inherent in bitemark analysis and interpretation:

(1) The uniqueness of the human dentition has not been scientifically established.

(2) The ability of the dentition, if unique, to transfer a unique pattern to human skin and the ability of the skin to maintain that uniqueness has not been scientifically established.

i. The ability to analyze and interpret the scope or extent of distortion of bitemark patterns on human skin has not been demonstrated.

ii. The effect of distortion on different comparison techniques is not fully understood and therefore has not been quantified.

(3) A standard for the type, quality, and number of individual characteristics required to indicate that a bitemark has reached a threshold of evidentiary value has not been established.

[Id. at 175-76 (footnotes omitted).]

The NAS summarized its assessment of bitemark analysis as follows:

Despite the inherent weaknesses involved in bitemark comparison, it is reasonable to assume that the process can sometimes reliably exclude suspects. Although the methods of collection of bitemark evidence are relatively noncontroversial, there is considerable dispute about the value and reliability of the collected data for interpretation. Some of the key areas of dispute include the accuracy of human skin as a reliable registration material for bitemarks, the uniqueness of human dentition, the techniques used for analysis, and the role of examiner bias. The ABFO has developed guidelines for the analysis of bitemarks in an effort to standardize analysis, but there is still no general agreement among practicing forensic odontologists about national or international standards for comparison.

Although the majority of forensic odontologists are satisfied that bitemarks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, and no large population studies have been conducted. In numerous instances, experts diverge widely in their evaluations of the same bitemark evidence, which has led to questioning of the value and scientific objectivity of such evidence.

Bitemark testimony has been criticized basically on the same grounds as testimony by questioned document examiners and microscopic hair examiners. The committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others. That same finding was reported in a 2001 review, which “revealed a lack of valid evidence to support many of the assumptions made by forensic dentists during bitemark comparisons.” Some research is warranted in order to identify the circumstances within which the methods of forensic odontology can provide probative value.

[Id. at 176 (emphasis added) (footnotes omitted).]

Second, Bowers cited to a series of published scientific articles in which the authors, like defense expert Sperber, concluded that dentition is not unique and that human skin cannot accurately record human dentition. See Mary A. Bush et al., Statistical Evidence for the Similarity of the Human Dentition, 56 J. Forensic Sci. 118 (2011) (“statements of dental uniqueness with respect to bitemark analysis in an open population are unsupportable”); H. David Sheets et al., Dental Shape Match Rates in Selected and Orthodontically Treated Populations in New York State: A Two-dimensional Study, 56 J. Forensic Sci. 621 (2011) (“[r]esults of studying these populations show that dental matches can occur, and that statements of certainty concerning individualization in such populations should be approached with caution”); Mary A. Bush et al., Similarity and match rates of the human dentition in three dimensions: relevance to bitemark analysis, 125 Int. J. Leg. Med. 779 (2011) (“study suggests that there may not be a scientific basis for a general expression of dental uniqueness when the incisal edges of the six anterior teeth are considered”); Mary A. Bush et al., Inquiry into the Scientific Basis for Bitemark Profiling and Arbitrary Distortion Compensation, 55 J. Forensic Sci. 976 (2010) (“bitemark profiling and arbitrary distortion compensation may be inadvisable”).

Third, Bowers referenced a 2016 report by the Texas Forensic Science Commission (TFSC), a statutorily created body tasked with managing accredited forensic disciplines and ensuring the integrity and reliability of forensic evidence in Texas criminal courts. See Texas Forensic Sci. Comm'n, Forensic Bitemark Comparison Complaint Filed by National Innocence Project on Behalf of Steven Mark Chaney 1-17 (Apr. 12, 2016) (the TFSC Report). In its report, the TFSC made two threshold findings: (1) “there is no scientific basis for stating that a particular patterned injury can be associated to an individual's dentition” and (2) “there is no scientific basis for assigning probability or statistical weight to an association.” Id. at 11-12.

The TFSC concluded that “[a]t the current time, the overwhelming majority of existing research does not support the contention that bitemark comparison can be performed reliably and accurately from examiner to examiner due to the subjective nature of the analysis.” Id. at 12. In reaching that conclusion, the TFSC found of “tremendous concern” a 2015 study titled, Construct validity of bitemark assessments using the ABFO Decision Tree, coauthored by Freeman, one of the State's experts. TFSC Report at 12. In that study, the authors asked ABFO Diplomates to review photographs of 100 patterned injuries. Id. at 13. “The study revealed an enormous spread of decisions among the Diplomates on the basic question of whether the patterned injury was in fact a bitemark.” Ibid.

The TFSC recommends that bitemark comparison not be admitted in criminal cases in Texas unless the following are established:

1. Criteria for identifying when a patterned injury constitutes a human bitemark. This criteria should be expressed clearly and accompanied by empirical testing to demonstrate sufficient inter and intra-examiner reliability and validity when the criteria are applied.

2. Criteria for identifying when a human bitemark was made by an adult versus a child. This criteria should be expressed clearly and accompanied by empirical testing to demonstrate sufficient inter and intra-examiner reliability and validity when the criteria are applied.

3. Rigorous and appropriately validated proficiency testing using the above criteria.

4. A collaborative plan for case review including a multidisciplinary team of forensic odontologists and attorneys.

[Id. at 15-16.]

Lastly, Bowers cited to a September 2016 report by the President's Council of Advisors on Science and Technology (PCAST). See President's Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Sept. 20, 2016) (the PCAST Report).8 The PCAST Report concluded that “[f]ew empirical studies have been undertaken to study the ability of examiners to accurately identify the source of a bitemark. Among those studies that have been undertaken, the observed false positive rates were so high that the method is clearly scientifically unreliable at present.” Id. at 87.

PCAST cited to an Australian study where fifteen odontologists were asked to comment “about six images of supposed bitemarks, [which resulted in] wide-ranging opinions among the practitioners on the origin, circumstance, and characteristics of the patterned injury for all six images.” Id. at 85. The study found that “[s]urprisingly, [odontologists] with the most experience ... tended to have the widest range of opinions as to whether a mark was of human dental origin or not.” Ibid.

Bowers concluded that “[t]he totality of these scientific advances present a clear and compelling certainty that the bitemark testimony used in [defendant's 2007 retrial] is now considered flawed and insufficient to meet current standards for scientific admissibility.”

The Innocence Project (IP) submitted a brief in support of defendant's motion, arguing that defendant was entitled to a new trial “untainted by the grossly unreliable bitemark evidence originally introduced against him.” IP stated that a scientific consensus doubting the fundamental premises of the field had emerged, concluding that forensic odontologists cannot reliably 1) identify injuries as bitemarks because skin is an unreliable medium, 2) associate a bitemark with the teeth of an individual and 3) quantify the probability of the match. IP argued that after defendant's retrial in 2007, “every neutral scientific body to have examined bitemarks has rejected it as entirely unreliable,” citing to the 2009 NAS Report, the TFSC Report, the PCAST Report, and the revised ABFO Guidelines.

In opposition to the motion, the State cited to a series of reports by various associations that were highly critical of the PCAST Report for disregarding large bodies of scientific evidence and legal precedence, discrediting the courtroom process to test the admissibility and weight of forensic evidence, and calling for an end to the use of most forensic evidence in criminal investigations and prosecutions. See, e.g., Jack D. Roady, The PCAST Report: A Review and Moving Forward—A Prosecutor's Perspective, 32:1 Crim. Just. 9 (2017).

Then-Attorney General Loretta Lynch did not adopt the PCAST Report recommendations, reasoning, that “when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning.” Id. at 13 (quoting Gary Fields, White House Advisory Council Report Is Critical of Forensics Used in Criminal Trials; U.S. Attorney General says Justice Department won't adopt recommendations, Wall St. J., Sept. 20, 2016).

The State also argued that the list of cases cited by Bowers as examples of wrongful convictions due to bitemark evidence were distinguishable because “none of [those] cases ... involved facts like those in this case, which include two sets of bitemarks on different victims, one set of which [was known to come] from defendant.” In addition to the bitemark evidence, defendant's DNA was on the cigarette butt found in the pipe at the crime scene. Thus, the State maintained that the key evidence in this case was both the bitemark and the DNA evidence. The State also argued that this was not newly discovered evidence because the reliability of the bitemark evidence was raised at the 2007 trial and could have been raised on direct appeal.

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IV. Denial of motion for new trial.

Defendant argues that the trial court erred in denying his motion for a new trial on the basis of newly discovered evidence on the reliability and scientific validity of bitemark analysis. Rule 3:20 provides that a defendant's motion for new trial may be “made at any time” and should be granted “if required in the interest of justice.”

“[A] defendant may seek a new trial where advances in scientific methodology previously unavailable would likely have changed the result.” State v. Armour, 446 N.J. Super. 295, 305, 141 A.3d 381 (App. Div. 2016). That is because “[s]cience moves inexorably forward and hypotheses or methodologies once considered sacrosanct are modified or discarded. The judicial system, with its search for the closest approximation to the ‘truth,’ must accommodate this ever-changing scientific landscape.” State v. Behn, 375 N.J. Super. 409, 429, 868 A.2d 329 (App. Div. 2005).

“[T]o qualify as newly discovered evidence entitling a party to a new trial, the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.” State v. Carter, 85 N.J. 300, 314, 426 A.2d 501 (1981). “All three [prongs of the] test[ ] must be met before the evidence can be said to justify a new trial.” Carter, 85 N.J. at 314, 426 A.2d 501. “The defendant has the burden to establish each prong is met.” State v. Smith, 29 N.J. 561, 573, 150 A.2d 769 (1959).

We review a motion for a new trial decision for an abuse of discretion. Armour, 446 N.J. Super. at 306, 141 A.3d 381. Questions of law are reviewed de novo. State v. Miles, 229 N.J. 83, 90, 160 A.3d 23 (2017).

In denying defendant's motion for a new trial, the trial court found under prong two of the Carter test that this was not “newly discovered evidence.” The court reasoned that although the ABFO Guidelines and some of the other information, including the 2009 NAS Report, the TFSC Report, and the PCAST Report, had been published after defendant's retrial in 2007, the substance of the reports was not “new” in that “the jury was made aware of the problems of bitemark evidence” through the testimony of Levine and Sperber. The court also found that the supporting evidence cited by Bowers could have been raised much earlier than 2018.

Under prongs one and three, the court found that the State's case against defendant was “extremely strong in terms of circumstantial evidence,” notably that defendant's DNA was on the cigarette butt found in the pipe where M.P. was murdered, and defendant was in the area at the time and was scratched, and thus he was not convicted solely on the bitemark evidence. The court also found that the impact of the expert testimony on bitemark analysis was mitigated because “Levine was very conservative in his approach,” and the jury was able to see the actual comparisons between the bitemarks and the molds of defendant's teeth.

A. Prong two of the Carter test.

“Prong two of the Carter test recognizes that judgments must be accorded a degree of finality and, therefore, requires that the new evidence must have been discovered after completion of trial and must not have been discoverable earlier through the exercise of reasonable diligence.” State v. Ways, 180 N.J. 171, 192, 850 A.2d 440 (2004). “The defense must ‘act with reasonable dispatch in searching for evidence before the start of the trial.’ ” State v. Nash, 212 N.J. 518, 550, 58 A.3d 705 (2013) (quoting Ways, 180 N.J. at 192, 850 A.2d 440). “R[ule] 3:20-2 presents a viable means by which a defendant can seek a new trial” based on newly discovered scientific evidence “if he [or she] can now show that recently improved scientific methodology, not available at the time of trial, would probably have changed the result.” State v. Halsey, 329 N.J. Super. 553, 559, 748 A.2d 634 (App. Div. 2000).

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. . . [H]ere, evidence was presented at trial on the substance of all of the new reports, except the revised ABFO Guidelines. For example, in conformance with the 2009 NAS Report and PCAST Report, Sperber testified that bitemark analysis was not reliable or a “true science.” Sperber also testified, in conformance with a series of scientific articles, that bitemark comparison analysis had serious limitations because skin is “very movable,” and thus does not accurately depict teeth marks. Further, Levine admitted that forensic odontology was “an art based on science,” and that unless an individual had a “totally bizarre tooth,” he “couldn't say with a hundred percent certainty that somebody caused a particular bitemark.” In conformance with Bowers' certification, both Levine and Sperber also testified that bitemark analysis testimony had been responsible for cases of misidentification. Sperber also testified that defendant was “excluded absolutely” from having made the bitemarks on M.P.'s chin and breast.

Furthermore, at the time of the retrial in 2007, scientific articles critical of bitemark analysis evidence had been published, including a 2006 article by Bowers, and thus the substance of the new reports could have been discovered through reasonable diligence. See C.M. Bowers, Problem-based analysis of bitemark misidentifications: The role of DNA, Forensic Sci. Int., 159 Supp. 1 (2006) (“dental literature concerning bitemark methodology is surprisingly thin and sorely lacking in rigorous scientific testing”); D.K. Whittaker, Some laboratory studies on the accuracy of bitemark comparison, 25 Int'l Dent. J. 166 (1975) (suggesting that because identification of bitemarks on pig skin was unreliable, similar difficulties may be encountered in identifying bites on human skin); I.A. Pretty & D. Sweet, The scientific basis for human bitemark analyses—a critical review, 41 Sci. & Justice 85 (2001) (“review revealed a lack of valid evidence to support many of the assumptions made by forensic dentists during bitemark comparisons”); I.A. Pretty, A web-based survey of odontologists' opinions concerning bitemark analyses, 48 J. Forensic Sci. 1117 (2003) (“survey[ing] forensic dentists to obtain their views on a number of crucial components of bitemark theory and contentious areas within the discipline”).

The only entirely new evidence in this case was the 2016 revision to the ABFO Guidelines. The revised ABFO Guidelines provide that “[a]n ABFO Diplomate shall not express conclusions unconditionally linking a bitemark to a dentition.” See ABFO Guidelines at 1. They also provide that an odontologist should use only the following terms linking a dentition to a human bitemark: “[e]xcluded as [h]aving [m]ade the [b]ite[ ]mark”; “[n]ot [e]xcluded as [h]aving [m]ade the [b]ite[ ]mark”; and “[i]nconclusive.” Id. at 3-4. “Stronger terms of attribution are not condoned by the ABFO.” Id. at 5. Although the Guidelines have changed, in itself that change does not satisfy the second prong of the Carter analysis.

B. Prongs one and three of the Carter test.

Prong one of the Carter test provides that the new evidence must be “material to the issue and not merely cumulative or impeaching or contradictory.” Carter, 85 N.J. at 314, 426 A.2d 501. Evidence is material if it “ ‘would have some bearing on the claims being advanced,’ and includes evidence that supports a general denial of guilt.” Nash, 212 N.J. at 549, 58 A.3d 705 (quoting Ways, 180 N.J. at 188, 850 A.2d 440). “Determining whether evidence is ‘merely cumulative, or impeaching, or contradictory,’ and, therefore insufficient to justify the grant of a new trial requires an evaluation of the probable impact such evidence would have on a jury verdict.” Ways, 180 N.J. at 188-89, 850 A.2d 440 (quoting Carter, 85 N.J. at 314, 426 A.2d 501).

In that regard, prongs one and three are “inextricably intertwined.” Nash, 212 N.J. at 549, 58 A.3d 705.

Therefore, the focus properly turns to prong three of the Carter test, whether the evidence is “of the sort that would probably change the jury's verdict if a new trial were granted.” Carter, 85 N.J. at 314, 426 A.2d 501. The characterization of evidence as ‘merely cumulative, or impeaching, or contradictory’ is a judgment that such evidence is not of great significance and would probably not alter the outcome of a verdict. Ibid. However, evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory. Ibid.

[Ways, 180 N.J. at 189, 850 A.2d 440.]

“The power of the newly discovered evidence to alter the verdict is the central issue ....” Id. at 191-92, 850 A.2d 440. The evidence must be “evaluated in light of the ... corroborative proofs in the record.” See State v. Herrerra, 211 N.J. 308, 343, 48 A.3d 1009 (2012). “[T]he third prong of Carter presents a mixed question of law and fact, requiring that we give deference to ‘supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings.’ ” Behn, 375 N.J. Super. at 432, 868 A.2d 329 (quoting State v. Harris, 181 N.J. 391, 416, 859 A.2d 364 (2004)).

Under the first prong of the Carter test, the new evidence—the NAS Report, ABFO Guidelines, TFSC Report, PCAST Report and the various studies—is clearly material to the bitemark evidence, which was a “focal issue of the trial and must be considered material.” See State v. Henries, 306 N.J. Super. 512, 531, 704 A.2d 24 (App. Div. 1997). The State focused on this evidence in its opening and closing arguments, and presented four witnesses who testified about bitemarks: Hazelwood, Natarajan, Freeman and Levine.

However, with the exception of the ABFO Guidelines, the new evidence was cumulative, in that comparable evidence impeaching the bitemark evidence and exonerations in other cases based on such evidence was offered at trial. The impact of this “new” evidence was “not of great significance and would probably not alter the outcome of a verdict.” See Ways, 180 N.J. at 189, 850 A.2d 440. Because the new evidence would not “effectively neutralize[ ] the State's expert testimony,” this situation stands in direct contrast to Behn. See 375 N.J. Super. at 433, 868 A.2d 329.

Further, even though the revised ABFO Guidelines are new, under prong three, the imposition of those guidelines are not “of the sort that would probably change the jury's verdict if a new trial was granted.” Carter, 85 N.J. at 314, 426 A.2d 501. Under the revised ABFO Guidelines, Levine could not “express conclusions unconditionally linking a bitemark to a dentition.” ABFO Guidelines at 1. During a new trial he would likely be limited to testifying that defendant's dentition is “[n]ot [e]xcluded as [h]aving [m]ade the [b]itemark” to both M.P. and V.G. ABFO Guidelines at 4. The jury knew, however, that defendant caused the injuries to V.G. because he pled guilty to the crimes against V.G. in Maine.

Under the new guidelines, ABFO Diplomates may identify a mark as a human bitemark and can testify as to the rarity of a certain combination of bitemarks. Thus, Levine could still testify that the marks on M.P.'s and V.G.'s chin and left breast were bitemarks; Natarajan, who was not an ABFO Diplomate, could still identify the marks on M.P.'s chin and left breast as bitemarks and could testify that in her thirty years' experience she had never seen that combination of bitemarks; and Freeman could still testify as to the results of his survey in which he found no cases that reported bitemarks to just the chin and the breast. As a result, although the jury would be presented at a new trial with less definitive testimony by Levine linking the bitemarks to defendant, the jury would still hear evidence that defendant could not be excluded as having caused the bitemarks and that the combination of bitemarks was highly unusual. The new ABFO Guidelines would not preclude the admission of the N.J.R.E. 404(b) evidence of defendant's sexual assault of V.G.

Levine's testimony was, as the trial court found, “conservative” and did not unconditionally link the bitemarks to defendant. Moreover, as the trial court found, there was other strong evidence in this case besides the bitemark evidence, notably, defendant's DNA on the cigarette butt found inside the pipe where M.P. was killed. His attack on Archer placed him in the area at the time of the murder, he had unexplained scratch marks on his face, neck and arms the night of the murder, he was agitated and angry with Archer at the time of M.P.'s murder, and he committed a very similar and highly unusual assault against V.G. just months after M.P.'s murder.

Lastly, bitemark evidence is currently admissible in New Jersey. State v. Timmendequas, 161 N.J. 515, 624, 737 A.2d 55 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed.2d 89 (2001). As defendant conceded, despite the evolving criticism by the scientific community as to the reliability of this evidence, to date no court in the United States has excluded expert testimony on bitemark identification. See Michael A. Saks et al., Forensic bitemark identification: weak foundations, exaggerated claims, 3 J. Law Biosci. 538 (2016). Courts have criticized the discipline, and overturned convictions based on DNA evidence or repudiated testimony, but have not overruled cases allowing admission. See In re Richards, 63 Cal.4th 291, 202 Cal.Rptr.3d 678, 371 P.3d 195, 207-08 (2016) (overturning the defendant's conviction where Sperber clearly repudiated his trial testimony that the autopsy photograph depicted a human bitemark). Defendant failed to establish any of the three prongs of the Carter test. The trial court did not abuse its discretion in denying the motion for a new trial.

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Affirmed.