Comment: 'I Did Not Hurt Him...This Is a Nightmare': The Introduction of False, But Not Fabricated, Forensic Evidence in Police Interrogations

Abstract

Bitemark analysis, microscopic hair analysis, handwriting analysis, and other pseudosciences have been deceiving juries for years. Courts and the scientific community once regarded these types of forensic evidence as scientifically sound, but many now dispute their reliability. Almost fifty percent of cases overturned by DNA testing involve pseudoscience. This Comment focuses on a subset of those wrongful convictions: cases in which the pseudoscientific evidence deceived not only the jury but the defendant as well.

When the police use coercive methods and discuss forensic evidence with a suspect during an interrogation, the suspect sometimes confesses to committing a crime in a manner consistent with the forensic evidence. If the court convicts the suspect based on the forensic evidence and the suspect’s confession, and the scientific community later determines that the forensic evidence is unreliable, retrial is necessary. The unreliability of the pseudoscience undermines confidence in the confession. This Comment surveys the empirical studies on false confessions and argues that pseudoscientific evidence is a type of false evidence that multiple studies have demonstrated increases the risk of a false confession. In fact, pseudoscientific evidence may be even more likely than other types of false evidence to spur a false confession because “science” is such a persuasive indicator of guilt.

This Comment argues that, because a defendant convicted by pseudoscientific evidence and a pseudoscience-induced confession may be factually innocent, these convictions should be overturned, and, if the prosecution believes it still has enough reliable evidence of the defendant’s guilt, the defendant should be given a new trial. This Comment suggests a number of pragmatic methods for courts to overturn questionable convictions and provide defendants with fair retrials in which pseudoscientific and confession evidence is suppressed. Rather than viewing a defendant’s confession as independent evidence of his or her guilt, courts should recognize that the unreliability of the pseudoscience introduced during the interrogation renders the defendant’s confession unreliable as well.