Junk Science from Our Courts and Elsewhere

A Review of Junk Science and the American Criminal Justice System

Reviewed by Lieutenant Commander J.C. Lundberg

Article published on: August 1, 2025 in the Army Lawyer issue 2 2025 Edition

Read Time: < 9 mins

She blinded me with science . . . and hit me with technology. ¹

Junk Science and the American Criminal Justice System ² (Junk Science) outlines the history of pseudoscience’s beguiling of our courts. The book’s principal focus is “bite mark analysis, but it just as easily could have been shaken baby syndrome, arson investigation, hair microscopy, bullet lead analysis, polygraphs, voice spectrometry, handwriting, [or] bloodstain pattern analysis.” ³ M. Chris Fabricant lays out a compelling case for why these techniques have been sufficiently discredited that they have no place in our justice system. At first blush, the bite mark analysis focus seems to limit his ability to speak more broadly to the book’s titular issue. The opposite is true. That focus allows Fabricant to guide his audience through a confrontation with the reality of what is being done in our collective name. ⁴

The still-growing consensus is that many forensic “sciences” are science in name only. ⁵ Despite that fact, countless guilty verdicts underlying ongoing prison sentences—and more than one execution ⁶ —were built on the foundations of these junk sciences. ⁷ Fabricant’s recounting of this troubling history provides important background on a likely gap in most attorneys’ knowledge. This is especially so not only because remediating the consequences of courts’ adoption of junk science remains a live issue in appellate courts but also because the principles undergirding the efforts to undo those harms have a substantially broader application than the narrow criminal justice context.

Three Decades of Harm

Junk Science opens with a graphic description of a Sailor’s 1982 murder of Jessee Perron and the “hours of sexual torture” he then inflicted on Teresa Perron. ⁸ Keith Allen Harward, a junior Sailor from the USS Carl Vinson (CVN-70), was wrongfully convicted of these offenses. ⁹ This was one of the early major cases involving bite mark evidence, a “science” that exploded into the public consciousness during the 1979 trial of Ted Bundy. ¹⁰ Fabricant recounts Harward’s efforts to fight his wrongful conviction, which finally succeeded in 2016 when the Virginia Supreme Court declared him innocent based on DNA testing. ¹¹ Junk Science probes the decades between Harward’s conviction—as well as the convictions in several other anchor cases—and his exoneration, including the discrediting of bite mark identification as a discipline. ¹² It does so admirably and relies on two lines of argument. The first is the stories of those who were wrongfully convicted and then often—but not uniformly—formally exonerated. The second is formal proceedings to determine which disciplines constitute the kinds of science on which our courts should rely; this is largely, but not exclusively, a look inside the National Research Council of the National Academies’ Committee on Identifying the Needs of the Forensic Science Community (NACINFSC). ¹³

These two threads repeatedly diverge and retwine throughout the text, which can make following the particulars of a given case or committee difficult. For example, Harward’s case is discussed at some length three separate times. ¹⁴ Further, all “accompanying” photographs are relegated to a section in the middle of the book rather than being published alongside the text they should amplify. ¹⁵ This allows the text to follow a linear chronology, but reorienting to the case’s particulars can prove difficult. ¹⁶ Fabricant’s decision to limit the scope to civilian courts, which handle the overwhelming majority of criminal allegations, is understandable but may make a military reader feel an unwarranted sense of remove from these issues. ¹⁷

Junk Science in the Military Justice System

Harward was convicted by a civilian jury empaneled by the Commonwealth of Virginia rather than a general court-martial (GCM) convened by the Carrier Strike Group commander. However, the same result likely would have been obtained at a GCM. The military justice system has not miraculously avoided conviction and incarceration rooted in junk science. Our case law is sparce on bite mark identification; ¹⁸ however, Fabricant asserts that “[a]nother entire book could be devoted to wrongful convictions involving [shaken baby syndrome (SBS), a] largely discredited forensic diagnosis, which is responsible for at least as many miscarriages of justice as bite mark evidence.” ¹⁹ Military case law for shaken baby syndrome is much more robust, and convictions rooted in this pseudoscience continue to be upheld. ²⁰

While military courts continue to rely on junk science like SBS, there is at least one area in which we are ahead of civilian courts in handling junk science. Military Rules of Evidence (MRE) 707 expressly prohibits the admission of “the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination.” ²¹ The question of “lie detector” evidence’s admissibility goes back over 100 years and led to the creation of the Frye test. ²² In civilian courts, it remains somewhat permissible—at least in some limited circumstances—to admit polygraph results. ²³ Military courts’ original handling of polygraphy offers a good way ahead when handling the junk sciences that Fabricant flagged. Before MRE 707 was promulgated, the then-Court of Military Appeals grappled with a defendant’s effort to admit the exculpatory results of a polygraph. ²⁴ The court articulated three tiers of scientific evidence: (1) those which “are so judicially recognized that it is unnecessary to reestablish those principles in each and every case” such as “fingerprint, ballistics, or x-ray evidence”; (2) “that range of scientific and technical endeavor that can neither be accepted nor rejected out of hand”; and (3) “[a]t the bottom lies a junk pile of contraptions, practices, techniques, etc., that have been so universally discredited that a trial judge may safely decline even to consider them, as a matter of law. To that level have been relegated such enterprises as phrenology, astrology, and voodoo. ²⁵ The Gipson court failed to articulate what Junk Science does at some length: the contents of these three tiers are not and cannot be seen as fixed. Since 1987, bite mark identification has—or at least should have—fallen to the junk science pile while DNA analysis has risen into the category of universal recognition. The consequences of this continual filtering remain areas of ongoing litigation in America’s highest courts.

Junk Science is a worthwhile read. This is especially true for military justice practitioners at the trial and appellate level, so they can see the likely path ahead for concepts like SBS. It is also true for judge advocates who advise commanders on military justice and those willing to look beyond the four corners of the text and apply its principles more broadly.

The Supreme Court Recently Flagged Junk Science as an Issue

Fabricant, a twelve-year veteran of the Innocence Project, anchors his text in the history of individual cases, including those where his own clients sought exoneration. This reckoning with the true human cost of junk science—both for those wrongfully convicted as well as for victims and their loved ones who were robbed of the opportunity to see actual justice—is a large part of the apparent purpose of Junk Science. In the same spirit, I offer the following background. In 1985, Charles McCrory was convicted of murdering his wife, Julie Bonds, and sentenced to life in confinement. ²⁶ In July 2024—two years after Junk Science was released—the Supreme Court of the United States declined to review Alabama’s decision to uphold McCrory’s conviction even though the expert proponent of the sole physical evidence tying him to her corpse—a bite mark on her arm ²⁷ —not only recanted his testimony but also stated he “no longer believe[s] individualized teeth marks comparison testimony” (the kind of testimony he provided at McCrory’s trial) is either “reliable or proper.” ²⁸

Dr. Richard Souviron, a forensic odontologist (i.e., a forensic dentist), originally testified about two small wounds found on Bonds’s arm, stating an “expert opinion” that McCrory was the source of the bite marks. ²⁹ Despite Souviron’s recantation at the 2019 post-conviction proceeding, and the testimony of two other forensic odontologists, Alabama upheld McCrory’s conviction on the grounds that a jury, composed of people without any special knowledge of, training in, or exposure to the relevant science, “had the ability to compare the physical evidence of the photographs of the injury to the victim’s arm and the mold of the defendant’s teeth for themselves and thus conclude that the defendant’s teeth matched the marks of the injury.” ³⁰ Put more simply, even though there was no true basis in fact for the panel to match a bite mark to any particular defendant’s teeth, McCrory’s jury might have believed there was and also believed that his teeth matched the bite mark on Bonds’s body. He will remain in confinement indefinitely.

Although the Court denied his petition, Justice Sonia Sotomayor took the opportunity to speak about the plight of “innocent people convicted based on forensic science that the scientific community has now largely repudiated.” ³¹ She noted that “[a] court has a variety of tools to test the reliability of forensic evidence introduced in criminal trials today. Yet when a court must look backward, to convictions resting on forensic evidence later repudiated by the scientific community, those tools may fail.” ³² Justice Sotomayor ends her statement by noting that the questions McCrory raises have “not yet percolated sufficiently in the lower courts to merit this Court’s review. There is no reason, however, for state legislatures or Congress to wait for this Court before addressing wrongful convictions that rest on repudiated forensic testimony.” ³³ This mirrors Fabricant’s implicit thesis: more action is needed to undo the damage done by our courts’ reliance on junk science. He stops his argument there, but the underlying reasoning has a much broader scope. There is no reason to limit the application of junk science in our courts but to allow it free rein elsewhere. ³⁴

Applying the Text’s Conclusions Outside the Courtroom

Junk Science’s scope is limited to America’s criminal justice system, but the principles it raises do not. First and foremost is the recognition that not all science is junk science. Fabricant has a few brief moments where that counterpoint is presented, like his discussion of “dentists’ legitimate forensic work: identification of human remains through dental records” ³⁵ or “the potential of DNA evidence to upend the criminal justice system.” ³⁶ Devoting a few pages to both identify some of the best examples of good science and articulate the principles that distinguish good science from junk science would have improved the book. ³⁷ As it stands, even most positive examples seem problematic for Fabricant; forensic dental identification offers a “Trojan horse” for bite mark identification. ³⁸ Only DNA evidence, the bread-and-butter of the Innocence Project, appears above his reproach. ³⁹ Perhaps part of the reason for this—aside from the facial problems with junk science’s wrongful convictions—is that forensic science seems to be assuming a growing place in criminal justice. Popular conceptions of the justice system focus on forensic techniques in part because they make for engaging television. While many commentators opine that the “CSI effect”—named for CSI: Crime Scene Investigation and its four spin-off series—has “twisted society’s perception in what should be present at a trial to prove someone guilty.” ⁴⁰ Ironically, the data do not support the CSI effect, and judicial efforts meant to remedy it instead exacerbate the issue. ⁴¹ Fabricant puts it more succinctly: “faith in the forensics depicted in [the] popular TV series [CSI] . . . [has] been misplaced. CSI is fiction.” ⁴² So too is the faith we place in junk science more broadly.

Removing that misplaced faith must be an ongoing effort and will require a shift in the public understanding of science. “Science is more than a body of knowledge. It is a way of thinking; a way of skeptically interrogating the universe with a fine understanding of human fallibility.” ⁴³ The history outlined in Junk Science does not reflect courts’ growing understanding of this distinction so much as it reflects courts’ recognition that the body of scientific knowledge does not, in fact, include certain things. ⁴⁴ Much like expanding the idea of literacy to encompass media literacy, ⁴⁵ science education has shifted to trying to instill a sense of science literacy. ⁴⁶ For those whose primary and secondary education has ended, those pedagogical changes will not reshape their understanding of science. Instead, an affirmative effort to reframe one’s philosophy of science is necessary on both individual and organizational levels.

The military—and the Federal Government more broadly—continues to spend time, money, and energy on junk science. ⁴⁷ While MRE 707 protects military courts from polygraph pseudoscience, it remains in the security clearance process. ⁴⁸ Polygraphy was already beyond the pale when NACINFSC published their 2009 report on the forensic sciences; it had been covered at length in a 2003 report on its uses in and out of court. ⁴⁹ That report found that a polygraph’s “accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in Federal agencies.” ⁵⁰ Junk Science offers a call to the Department of Defense—and the rest of our Government—to better align practices and policies with these data.

Conclusion

Extricating junk science from not only our courts but also our society generally is a daunting and continual process. Fabricant effectively highlights a narrow sliver of that project and the harrowing, decades-long effort for some people to vindicate their on-going assertions of innocence. His personal involvement in some of those cases provides a valuable human-scale look at the realities of those efforts (e.g., a recess of more than a year during an evidentiary hearing after a case was remanded for a third time). ⁵¹ That proximity cuts both ways. It seems to color his appraisal of some scientific techniques and reflects a less-than-objective approach to the subject. ⁵² Despite these shortcomings, Junk Science is a worthwhile read. This is especially true for military justice practitioners at the trial and appellate level, so they can see the likely path ahead for concepts like SBS. It is also true for judge advocates who advise commanders on military justice and those willing to look beyond the four corners of the text and apply its principles more broadly. TAL