Considering Machine Testimony : The Impact of Facial Recognition Software on Eyewitness Identifications

This Article uses a wrongful conviction lens to compare identifications by machines, notably facial recognition software, with identifications by humans. The Article advocates for greater reliability checks on both before use against a criminal defendant. The Article examines the cascading influence of facial recognition software on eyewitness identifications themselves and the related potential for greater errors. As a solution, the Article advocates the inclusion of eyewitness identification in the Organization of Scientific Area Committees\u27 ( OSAC ) review of facial recognition software for a more robust examination and consideration of software and its usage. The Article also encourages police departments to adopt double- blind procedures for eyewitness identifications, including when matching photos from facial recognition software are included. Finally, the Article concludes with a prediction of where these two fields will be ten years from now, in 2032

Changed Science Writs and State Habeas Relief

For decades now, the 1996 federal Antiterrorism and Effective Death Penalty Act (AEDPA) has limited the scope and influence of federal courts in post-conviction case review, forcing convicted individuals to rely instead on state habeas proceedings for conviction relief. Due in large part to the 2009 National Academy of Sciences Report, petitions for conviction relief increasingly include challenges to the government’s scientific evidence at trial. These petitions analyze that evidence by comparing the trial evidence to the advancement of scientific findings and scientific knowledge in the years since the trial. State habeas petitions thus provide an avenue for relief from misused and misrepresented scientific evidence. State courts, however, can only reexamine faulty scientific evidence, and reverse unconstitutional convictions, if the legislature provides the tools to do so. One such tool is the ability to review post-conviction relief petitions based specifically on faulty science, a tool known as changed science writs. This Article reviews the growth of state-level changed science writs and examines how other states can adopt this tool to review habeas petitions based on scientific evidence. This Article posits that changed science writs both incentivize greater reliability of evidence at trial by creating a process of review, and help to identify wrongful convictions based on inaccurate, misrepresented, or faulty scientific evidence

Changing the Culture of Disclosure and Forensics

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client’s case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, this Essay also posits ways to ensure complete Brady compliance as well as obtain accurate and reliable forensic findings. Correctly understanding forensic findings can remedy a lack of transparency surrounding whether results were completely disclosed and whether the results support the testimony of lab analysts. Finally, to assist the court with its gate-keeping role of admitting forensic science disciplines and findings, this Essay recommends that courts appoint independent experts under Federal Rule of Evidence 706

Forensic Evidence in Arizona: Reforms for Victims and Defendants

Arizona is nationally recognized as a leader in forensic science. Our state court judges serve on the Legal Resource Committee for the National Institute of Science and Technology (NIST) and provide guidance to NIST’s Organization of Scientific Area Committees for Forensic Science. Our Phoenix lab analysts and lab directors have national reputations. And Arizona State University’s Sandra Day O’Connor College of Law has been home to many leading academics in the field of forensics and the law, among them Michael Saks, David Kaye, and Jay Koehler. We have a robust forensic science community in Arizona and in Phoenix in particular. Thus, this Article identifies the strengths of the current system in Arizona and proposes innovative reforms appropriate for labs that are already leaders in the field. Arizona is particularly well situated to increase its lab independence and to serve additional members of the criminal legal community: namely, defendants and victims. Regarding defendants, this Article recommends greater transparency and accessibility to fundamental scientific lab findings for defense attorneys, similar to the practices of well-known independent crime labs such as the Houston Forensic Science Center. Additionally, the volunteer-run Arizona Forensic Science Advisory Committee can ensure greater integrity for forensic evidence in the courtroom if it is staffed, ideally with a staff attorney. Regarding victims, in a moment of calls to “defund the police,” this Article proposes that police departments shift resources to hire more civilian crime scene investigators. More civilian investigators can increase responsiveness to property crimes for victims and also identify the scope of the property crime problem in regularly impacted neighborhoods. Economically struggling neighborhoods are frequently overpoliced for controlled substances violations, yet law enforcement is simultaneously underresponsive to victims of property crime in these communities. These proposals in the interest of defendants, victims, and the integrity of the Arizona criminal legal system may be more likely to occur alongside ultimate independence for the Arizona crime labs. Independent labs would respond directly to the Governor rather than serve within the Department of Public Safety and individual police departments

Policing Pregnancy Crimes

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds defense attorneys of their obligation to challenge junk science in the courtroom