1. INTRODUCTION
In a legal process, it may be necessary to establish the identity of a deceased person (s) whose body has been destroyed or decomposed beyond recognition by visual identification. In such a situation, the need for a forensic dentist (also known as forensic odontologist) becomes necessary and this may arise in mass disaster incidents such as plane crash, petroleum pipeline explosion, fire outbreak, genocide (e.g. Rwanda genocide of 1994), motor vehicle accidents, floods, earthquakes, terrorist attack (for example, the World Trade Centre attack of September 11, 2001 in the New York) and locally, recent decomposed bodies found at Soka area in Ibadan, Oyo State. This question of identification may also arise in a murder case where the identity of a suspect who inflicts bite mark on a deceased person is in issue in a judicial proceeding. In establishing the identity of persons in courts, three methods have gained popularity over time and these are DNA, fingerprint and dental identification. Forensic scientists have maintained that dental identification is the most reliable method of establishing identity of persons because human teeth, like skulls, are almost indestructible.
Incidentally, the Nigerian Law of Evidence allows experts in science, art and foreign law to offer their opinions as witnesses in a court proceeding, under certain circumstances, in order to assist courts determine some issues which are not within the competence of courts. However, the focus of this paper centres on the relationship between the law and forensic dentistry, rather than expert evidence in general. Reference is only made to expert evidence for the purpose of putting the focus of this paper in proper perspective. The paper will equally consider the use of forensic dentistry as a technique, among others, of
gathering evidence by security and intelligence operatives. Although it is discovered that the use of forensic dentistry is scarcely deployed in Nigeria even when the need for such arises, unlike in developed parts of the world where the use of forensic odontologists is customary in deserving circumstances. The fact that this field of medical specialty is seldom used in Nigeria by law enforcement agents in the course of investigation and even by our courts is due to the paucity of experts in forensic dentistry[1] and not necessarily because the Nigerian law does not recognise their role. This paper discusses the extent to which forensic dentistry has been applied in other parts of the world in order to unravel some mysterious and complex criminal incidents with incredible results. The paper also provides guides to assist a forensic odontologist in giving meaningful evidence in a court proceeding. In conclusion, it exposes areas of the Nigerian law, in this aspect, which requires some review in order to meet international best practices.
2. DEFINITION OF TERMS
In this paper certain key words or phrases need to be clarified for proper understanding of the substance of this lecture.
i. Law: Black’s Law Dictionary[2] defines law as “The regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system.” It must be conceded that law is one of the terms that do not easily lend themselves to easy conceptualisation. However, in this lecture, the term “law” will be used to denote legal principles operative in any legal system.
ii. Forensic: In an online source, forensic is defined as “1. relating to or denoting the application of scientific methods and techniques to the investigation of crime. “2. relating to courts of law.”[3]
In Black’s Law Dictionary[4], on other hand, forensic is defined in relation to evidence and it is put thus “Evidence used in court, esp., evidence arrived at by scientific or technical means such as ballistic or medical evidence.”
iii. Techniques in gathering evidence: Technique is defined as “a way of carrying out a particular task, especially the execution or performance of an artistic work or a scientific procedure.”[5] The word “techniques” is therefore used in this text to denote scientific methods by which incidents are investigated by law enforcement agents in the course of gathering evidence as well as means by which courts establish any facts needed to be so proved in a judicial proceeding.
3. FORENSIC AND EXPERT EVIDENCE UNDER THE NIGERIAN LAW
As a general rule under the Nigerian Law of Evidence, opinions of witnesses are inadmissible in court trials. There is, however, an exception to this principle under section 68 of the Evidence Act which provides thus,
When the court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible[6].
(2) Persons so specially skilled as mentioned in sub-section (1) of this section are called experts.
3.1 Who is an Expert?
An expert is a person who is specially skilled, trained[7] or has acquired particular experience in any of the fields mentioned in the relevant section of the Evidence Act quoted above. An expert becomes an expert witness in a case when he is called as such on the basis of his qualification or experience (see, Shell Petroleum Development Co. (Nig.) Ltd. v. Tiebo (1996) 4 NWLR Pt. 445, 657). Though expert witnesses are usually called by parties to a case, they have a duty to assist a judge in arriving at a just determination of the case before him. An expert witness must satisfy the court that he possesses requisite professional qualification or experience on the area he has come to give evidence and must also show that the nature of duty of his office falls within the scope of the area where he gives evidence.
Ordinarily, the court will accept and be bound by the evidence of an expert, unless such evidence is contrary to common sense- Okoh v. The State (1971) NMLR 140. The court may also not be bound by the evidence of an expert, if the expert witness fails to state the basis of his opinion. Expert evidence must be direct evidence of the expert who gives it. To this end, section 126 of the Evidence Act provides,
Subject to the provisions of Part III oral evidence must, in all cases whatever, be direct
a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable[8].
Where conflicting expert opinions are placed before a court, the court has the discretion to accept one and reject the other. Expert evidence should be restricted to the area of the expert’s specialty. An expert witness needs to make his evidence simple and understandable- Udom v. State (1966) NMLR 357. He may also refresh his memory by relevant notes prepared contemporaneously at the time of carrying out his examination or other materials such as learned treaties. Where a report is prepared by a team of experts, any member of the team is qualified to present the report in court.
3.2 What is forensic dentistry?
Forensic dentistry is defined as “...a vital branch of forensic science that involves that application of dental science to the identification of unknown human remains and bite marks, using both physical and biological evidence.”[9]
To the British Association for Forensic Odontology, forensic odontology “is a branch of forensic medicine and, in the interest of justice, deals with the proper examination, handling and presentation of dental evidence in a court of law.”[10]
In another source, it is defined thus, “Forensic dentistry, which is commonly known as the proper treatment, examination, and assessment of dental evidence, is generally used to present information to government or legal authorities. Forensic dentists can discover the age and identity of a person through their teeth, while also studying bite marks to ascertain who attacked the victim.”[11]
The main areas of professional focus of forensic dentists are identified by Adam K. Smith[12] as follows:
1 Assessment of bite mark injuries;
2 Evaluation of abusive cases between children, spouses or other individuals;
3 Classification of uncovered human remains;
4 Classification of mass fatalities;
5 Age estimation;
6 Civil cases involving dental or medical malpractice;
7 Identification of a deceased individual.
Forensic dentistry is a component of forensic science, while forensic science, on the other hand, is a key component of criminal law as well as civil matters. However, the use of forensic science is generally low in Nigeria. O. A. Ladapo described the situation in the following words,
Another issue is the very low infrastructure for forensic science capacity building in Nigeria. Of the over 250 licensed tertiary educational institutions in Nigeria, none of them runs a programme in any of the forensic sciences at the undergraduate level. At present, only the University of Ibadan is known to have initiated a programme at the graduate degree level in forensic anthropology, which is yet to take off. The result of this low manpower capacity in the forensic sciences is evidenced by the fact that more often than not when important issues requiring forensic analysis crop up, they are usually referred to experts abroad with the attendant prohibitive costs and excessive time consumption. Currently, in all the medical facilities in Oyo State, the University College Hospital of the University of Ibadan inclusive, there is no single trained forensic medical pathologist. As a result, general medical practitioners and medical pathologists trained in other specialities have to fill the gap and this deficiency is manifest in the forensic post-mortem reports they produce.[13]
In other climes, forensic techniques such as DNA typing, osteology, neuropathology, crime scene photography, ballistics, criminal profiling, among others, are often used to unravel criminal incidents.
4. HOW FORENSIC DENTISTRY INTERACTS WITH THE LAW
A. Bite Mark Evidence
Most developed countries of the world including US and UK, recognise the importance of forensic dentistry and its usefulness in resolving certain legal issues. For instance, in the US, in 1978[14] it took the intervention of a forensic dentist to establish that the bite mark inflated on Lisa Levy, a victim of sexual assault, matched Ted Bundy’s dentition. Ted Bundy was a notorious serial killer in the history of the United States. The evidence of his dental identification enabled the court to find him guilty of sexual assault committed against his victim, Lisa Levy.
However, the use of bite mark evidence has also come under severe scrutiny especially in recent time with the exoneration of Gerard Richardson[15] who was convicted and sent to prison on account of bite mark evidence. He was convicted of the murder of Monica Reyes in 1995 majorly on the evidence of Dr. Ira Titunik, a forensic odontologist. In October 2013, new evidence emerged with the use of DNA testing, after he had spent almost 20 years in prison, which showed that another person must have committed the offence and not Richardson.
Another case of wrongful conviction due to the use of bite mark evidence played out in Ray Krone’s case. He was convicted of the murder of a Phoenix bartender, Kim Ancona, in 1992. He was convicted on the basis of Dr Ray Rawson’s evidence who testified as a forensic dentist. The forensic dentist testified that the bite mark found on the victim matched the dentition of Ray Krone. In 2002, however, DNA test proved that saliva found on the victim could not have been Ray Krone’s. He was consequently released[16].
Generally, bite mark evidence has been criticised as a subjective and unreliable forensic technique in establishing guilt of any accused person in a criminal trial, though its use is still in vogue in the US to this moment. In fact, it is reported that about 24 convictions[17] have been found to have been wrongly made since year 2000 due to the reliance on bite mark evidence in the US.
B. Identification of Human Remains
The use of identification of human remains in cases of mass deaths has been found to be very reliable, unlike bite mark evidence which has been a subject of severe criticism. Forensic dentists have been instrumental to the prosecution of many perpetrators of crimes of genocide around the world[18]. Examples include Rwanda and Bosnian genocide. The significant role of forensic dentistry also played out in the identification of mass of corpses following the Tsunami disaster of 2004.
5. FORENSIC DENTISTRY IN THE CONTEXT OF EVIDENCE GATHERING AND CASE PRESENTATION IN NIGERIAN COURTS
Countless occurrences calling for the intervention of forensic dentists have taken place in Nigeria. It is regrettable that Nigeria has not developed its evidence gathering capacity to the point of recognising the pivotal role of forensic dentistry in unravelling certain complex incidents. Plane crashes and petroleum pipeline disasters have occurred in Nigeria on many occasions and many of them remain unresolved due to the lackadaisical attitude of the government to develop forensic science especially forensic dentistry.
The rules of most superior courts (e.g. High Court and National Industrial Court) in Nigeria have adopted front-loading system. Front-loading system is simply a practice whereby court processes such as writ of summons, statement of claims, witnesses’ statements on oath and exhibits are prepared in advance and are all filed at the commencement of a case in court. This is applicable only to civil cases. In relation to criminal cases, accused persons’ statements and prosecution’s witnesses’ statements are also prepared and filed at the commencement of a criminal proceeding in an information or a charge, as the case may be. Given this practice, an expert witness’ evidence would have been prepared in advance and such witness will have to confine himself to the evidence already filed at the commencement of the case, though, if necessary, his evidence may be amended in order to allow him bring in any omission. It should be pointed out that this method of filing court processes does not apply to inferior courts such as Magistrate’s Court and Area Court. In this latter instance, an opposing party may not have, in advance, full knowledge of what an expert witness is coming to say in court.
6. CONCLUSION AND RECOMMENDATIONS
The use of forensic science in the conduct of investigation in Nigeria is still very low, while forensic dentistry appears totally unknown. Without accurate dental records, forensic dentistry cannot thrive. Nigeria needs to develop its dental records database so as to key into vast advantages that lay in investigations premised on the use of forensic dentistry in the event of mass disasters. The use of forensic dentistry is particularly useful in resolving financial claims of plane crash victims. It also plays significant role to resolve complexities of some rape, murder, arson and other incidents of violent crimes. Furthermore, for the intelligence community in Nigeria to function optimally, the use of forensic dentistry is imperative.
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