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The Shifted Paradigm: Forensic Sciences's Overdue Evolution from Magic to Law

4 Va. J. Crim. L. 1 (2016)

115 Pages Posted: 4 Mar 2015 Last revised: 13 Apr 2016

M. Chris Fabricant

Innocence Project, Inc.

William Tucker Carrington

University of Mississippi - School of Law

Date Written: March 2, 2015

Abstract

A decade ago a controversial article in Science Magazine predicted a coming “paradigm shift” that would push forensic sciences toward fundamental change as the result of “[l]egal and scientific forces...converging to drive an emerging skepticism about the claims of the traditional forensic individualization sciences.” This article argues that the predicted paradigm shift has occurred. We support our thesis through a deconstruction of the jurisprudence of two of the forensic disciplines implicated in numerous wrongful convictions – forensic odontology (bite mark analysis) and forensic hair microscopy – and an examination of a confluence of unprecedented events currently altering the landscape of forensic sciences. The empirical evidence and data gathered here demonstrates that traditional forensic identification techniques, as well as the doctrines supporting them, are ultimately no more than a house of cards built on unvalidated hypotheses and unsubstantiated or non-existent data. Several very serious consequences result, among them that state, and to some extent federal, jurisprudence that stands for the proposition that this type of evidence is admissible is objectively erroneous and must be reevaluated and effectively rejected as valid precedent; and that the long-overdue paradigm shift presents a unique ethical challenge to criminal justice professionals, one that current professional ethics regimes fail to adequately capture, even though fundamental due process norms compel the conclusion that prosecutors, defense attorneys, forensic experts and their respective governing bodies have an ethical, moral and legal duty to revisit affected cases and provide remedies. Put differently, the “path forward” for forensic sciences that the National Academy of Sciences identified in its seminal 2009 report must have a rear-view mirror.

Keywords: criminal law, forensic sciences

Suggested Citation

Fabricant, M. Chris and Carrington, William Tucker, The Shifted Paradigm: Forensic Sciences's Overdue Evolution from Magic to Law (March 2, 2015). 4 Va. J. Crim. L. 1 (2016) . Available at SSRN: https://ssrn.com/abstract=2572480 or http://dx.doi.org/10.2139/ssrn.2572480

M. Chris Fabricant (Contact Author)

Innocence Project, Inc. ( email )

40 Worth Street, Suite 701
New York, NY 10013
United States

HOME PAGE: www.innocenceproject.org

William Carrington

University of Mississippi - School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States
662-915-6000 (Phone)

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