Self-Incrimination Doctrine is Dead, Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, and the Anxieties of the Liberal State
51 Pages Posted: 10 Aug 2008 Last revised: 11 May 2009
Date Written: December 26, 2008
Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, videotapes, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it far outstrips confessions. This should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) over time. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of confessions, will no longer be relevant. The same anxieties that animated the need for a doctrine limiting and regulating confessions, should now dictate and define the development of a rich-and complicated-doctrine for limiting and regulating the very evidence that replaces them: scientific evidence. This process (of first, the replacement of confessions with scientific evidence, and second, the development of a doctrine for scientific evidence that aims to protect the same values which self-incrimination doctrine protects), while still in its infancy, has already begun.
Keywords: confessions, self-incrimination, eyewitness, forensic evidence, scientific evidence, legal theory
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