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September 12, 2017

Discovering Forensic Fraud

Abstract

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny. In the criminal system, the near absence of any pretrial discovery means the criminal defendant has little to no realistic opportunity to challenge forensic evidence prior to the eve of trial. We identify the impact of pretrial disclosure by exploring the admission of expert evidence in criminal cases from a particular forensic discipline, specifically forensic odontology. Finally, this Essay proposes the adoption of pretrial civil discovery and disclosure rules in criminal proceedings to halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions.

Authors

Jennifer D. Oliva, Associate Professor of Law and Public Health, West Virginia University; Valena E. Beety, Associate Professor of Law, West Virginia University College of Law. We thankfully acknowledge helpful comments from Brandon Garrett, Adam Shniderman and Edward Cheng. We also appreciated the opportunity to present this piece at the 2017 International Forensic Science Error Management Symposium at the National Institute of Standards and Technology (NIST). Our work on this project was supported by a generous Hodges Research Grant from West Virginia University College of Law.

Copyright 2017 by Jennifer D. Oliva and Valena E. Beety

Cite as: Jennifer D. Oliva and Valena E. Beety, Discovering Forensic Fraud, 112 Nw. U. L. Rev. Online 1 (2017), http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1249&context=nulr_online.