California Law Allows For New Trials When Experts Recant Their Testimony

In 2014, California enacted a law that I think should serve as a model for legislation in the other 49 states.

“Previously, [California] law allowed a judge to reconsider a conviction if a key eyewitness recanted his or her testimony, but the same standard did not apply to expert witnesses who depend on new and emerging technologies to make their conclusions,” said Senator Leno, D-San Francisco. “This law clarifies that false evidence provided by such an expert witness may be considered when proving a person’s innocence.”

Unsurprisingly, the law came about due to a case with bad bite mark evidence.

In 1993, Pamela Richards was strangled and had her skull crushed in what was a clear murder.  Investigators built a case against her husband, William, based in part on a bite mark on the victim’s hand.  The bite mark was identified as William Richards’ based on testimony by Norman Sperber, a well-known forensic dentist in San Diego who had contributed to conviction of serial killer Ted Bundy by identifying bite-marks on his victims.  During Richards’ 1997 trial, Sperber testified that only 2 out of 100 people would have the defendant’s unusual tooth feature that appeared in the bite-mark on Pamela’s hand.

After the conviction, upon reviewing a clearer photo, Sperber claimed that Richards’ teeth were actually not consistent with the mark on his wife’s hand, suggesting that he was not the cause of the wound.  In 2012, the California State Supreme Court affirmed Richards’ conviction stating that a change in expert witness testimony did not necessarily set grounds for vacating it.  Finding that an expert’s testimony must be “objectively untrue,” something not demonstrated in the Richards’ case because no counter-experts reputed Sperber’s claim, the Court declined to overturn his conviction on appeal.

This denial led California to pass Senate Bill No. 1058, which allows for new trials in cases involving “false evidence” and provides as follows in pertinent part:

(e) (1) For purposes of this section, “false evidence” shall include opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.

(2) This section does not create additional liabilities, beyond those already recognized, for an expert who repudiates his or her original opinion provided at a hearing or trial or whose opinion has been undermined by later scientific research or technological advancements.

Based on this new law, the Supreme Court of California agreed to reconsider Richards’ case.

There are two great things about California’s law. First, if a key lay witness (e.g., an eyewitness) recanting his testimony allows for a new trial, why shouldn’t the same apply when a key expert witness (e.g., a bite mark expert) recants his testimony? Second, the California law explicitly shields the expert from any additional liability for recanting his testimony. Thus, the law does not create a disincentive for an expert to do the right thing and recant when he knows that his testimony was inaccurate.

-CM