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Publication Date

2013

Abstract

The growing number of wrongful convictions exposed
over the past two-and-a-half decades, and the research
that points to a few recurring types of flawed evidence in
those cases, raise questions about the effectiveness of the
rules of evidence and the constitutional admissibility
standards that are designed to guard against unreliable
evidence. Drawing on emerging empirical data, this
Article concludes that the system can and should be

adjusted to do a better job of guarding against undue
reliance on flawed evidence. The Article first considers the
role of reliability screening as a constitutional concern.
The wrongful convictions data identify what might be
called "suspect evidentiary categories"--a few types of
evidence (eyewitness identifications, confessions, forensic
science, and snitch testimony) that are both recurring
features of wrongful convictions and not otherwise
susceptible to correction through traditional trial
mechanisms and that, therefore, can and should be
subjected to heightened scrutiny for reliability under the
Due Process Clause.
Recognizing, however, that the Supreme Court is moving
away from using constitutional doctrine to screen for
reliability, this Article considers other mechanisms for
better ensuring reliable evidence and accurate trial
outcomes. First, current trends in Supreme Court
jurisprudence suggest a due process framework that
focuses upstream of the trial process on regulating the
police and prosecutorial conduct that generates some of the
most suspect trial evidence. Second, the Article assesses
new applications of nonconstitutional evidence law that
offer promise for filling the void in reliability review of
such suspect types of evidence. Finally, the Article
considers remedies in addition to exclusion that might aid
in the enterprise of mitigating the harm from flawed
evidence. Principal among these are broader use of expert
witnesses and jury instructions to educate fact finders
about the counterintuitive but scientifically established
qualities of these categories of suspect evidence. And
because courts have proven reluctant to apply reliability-
based exclusionary rules rigorously, the Article concludes
by exploring partial exclusion-excluding the most
objectionable parts of the evidence while permitting other
parts--as a remedy that courts might be more likely to
actually enforce.

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