Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence

The growing number of wrongful convictions exposedover the past two-and-a-half decades, and the researchthat points to a few recurring types of flawed evidence inthose cases, raise questions about the effectiveness of therules of evidence and the constitutional admissibilitystandards that are designed to guard against unreliableevidence. Drawing on emerging empirical data, thisArticle concludes that the system can and should be adjusted to do a better job of guarding against unduereliance on flawed evidence. The Article first considers therole of reliability screening as a constitutional concern.The wrongful convictions data identify what might becalled suspect evidentiary categories --a few types ofevidence (eyewitness identifications, confessions, forensicscience, and snitch testimony) that are both recurringfeatures of wrongful convictions and not otherwisesusceptible to correction through traditional trialmechanisms and that, therefore, can and should besubjected to heightened scrutiny for reliability under theDue Process Clause.Recognizing, however, that the Supreme Court is movingaway from using constitutional doctrine to screen forreliability, this Article considers other mechanisms forbetter ensuring reliable evidence and accurate trialoutcomes. First, current trends in Supreme Courtjurisprudence suggest a due process framework thatfocuses upstream of the trial process on regulating thepolice and prosecutorial conduct that generates some of themost suspect trial evidence. Second, the Article assessesnew applications of nonconstitutional evidence law thatoffer promise for filling the void in reliability review ofsuch suspect types of evidence. Finally, the Articleconsiders remedies in addition to exclusion that might aidin the enterprise of mitigating the harm from flawedevidence. Principal among these are broader use of expertwitnesses and jury instructions to educate fact findersabout the counterintuitive but scientifically establishedqualities of these categories of suspect evidence. Andbecause courts have proven reluctant to apply reliability-based exclusionary rules rigorously, the Article concludesby exploring partial exclusion-excluding the mostobjectionable parts of the evidence while permitting otherparts--as a remedy that courts might be more likely toactually enforce

The Absence or Misuse of Statistics in Forensic Science as a Contributor to Wrongful Convictions: From Pattern Matching to Medical Opinions About Child Abuse

The new scrutiny that has been applied to the forensic sciences since the emergence of DNA profiling as the gold standard three decades ago has identified numerous concerns about the absence of a solid scientific footing for most disciplines. This article examines one of the lesser-considered problems that afflicts virtually all of the pattern-matching (or “individualization”) disciplines (largely apart from DNA), and even undermines the validity of other forensic disciplines like forensic pathology and medical determinations about child abuse, particularly Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT). That problem is the absence or misuse of statistics. This article begins by applying basic statistical principles to pattern-matching disciplines to demonstrate how those disciplines have historically hidden or failed to reckon with the probabilistic nature of their judgments, and how, when they have acknowledged the probabilistic nature of their claims, they have often botched the statistical analyses. The article then does a deeper dive into showing how those same deficiencies apply to medical opinions about child abuse, particularly SBS/AHT

Implementing the Lessons from Wrongful Convictions: An Empirical Analysis of Eyewitness Identification Reform Strategies

Using eyewitness misidentification – one of the leading contributors to wrongful convictions and the most thoroughly and scientifically studied of those contributors – as the focus, this Article begins to fill that void by empirically analyzing a variety of approaches to eyewitness identification reform that have been attempted. This Article establishes a taxonomy of reform efforts that includes top-down, command-and-control legislation; entirely bottom-up, essentially laissez-faire approaches to identification practices; and a hybrid that builds on emerging notions of democratic experimentalism – a form of “new governance” – to foster bottom-up experimentation by imposing obligations on police while giving them the freedom to develop their own locally tailored responses to the problem of eyewitness erro

Innocence Protection in the Appellate Process

It is often said that truth “accurate sorting of the guilty from the innocent” is the primary objective of criminal trials. Among the important safeguards in our criminal justice system intended to ensure that the innocent are protected from wrongful conviction is the system of appeals and postconviction remedies. Recent empirical evidence based on DNA exoneration cases reveals, however, that the appellate process does not do a good job of recognizing or protecting innocence. Examination of known innocents “those proved innocent by postconviction DNA testing” shows that they have rarely obtained relief on appeal. Moreover, those individuals subsequently proved innocent by postconviction DNA testing do no better on appeal and their innocence is no more regularly acknowledged than otherwise similarly situated individuals who have not been exonerated by DNA. This article examines the variety of reasons why the appellate system fails to effectively guard against wrongful conviction of the innocent, and considers possible reforms that might enhance the system\u27s innocence-protecting functions

Ending Manner-of-Death Testimony and Other Opinion Determinations of Crime

In January 2011, Ellen Greenberg\u27s fianc6 and her apartment building manager broke down her apartment door after she failed repeatedly to respond to attempts to contact her.1 They found herd ead in a pool of blood on the kitchen floor, the victim of twenty stab wounds to her chest, torso, head, and neck, including stab wounds to the back of her head and to her body through her clothes. They found a half-eaten fruit salad on the kitchen counter along with an overturned knife block. By all appearances, Greenberg was the victim of a grisly murder, and the medical examiner ( ME ) initially ruled homicide the manner of death