The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence
New York University School of Law
California Law Review, Forthcoming
Accounts of powerful new forensic technologies such as DNA typing, biometric scanning, and cell site or RFID tracking fill the daily news. Such techniques have already gained renown for helping to exonerate those wrongly convicted, and for exposing the failings of a criminal justice system that too readily relied upon old forms of faulty forensic evidence like handwriting, ballistics, or even fingerprints. Advocates applaud the introduction of a "new paradigm" for forensic evidence, and promise that these new techniques will revolutionize the future investigation and trial of criminal cases.
To be sure, these new forensic sciences offer an unprecedented degree of certainty and reliability. Yet that alone does not necessarily render them less susceptible to misuse by the criminal justice system. In fact, as this Article argues, the very characteristics most lauded in these new forensic techniques actually exacerbate the conditions that ultimately caused traditional forensic sciences to fall into disrepute.
This Article challenges the new orthodoxy of forensic science. In so doing, it reframes the debate about forensic evidence in the criminal justice system in three respects. First, this Article sets forth a new taxonomy of forensic evidence, and distinguishes between first and second generation sciences by enumerating specific, classifiable characteristics. Second, using that framework, this Article illustrates how the pathologies of the criminal justice system that ultimately tarnished the first generation of forensic evidence are in fact aggravated, rather than relieved, by the particular characteristics of the second generation. Lastly, this Article criticizes current approaches to improving the use of forensic evidence in the criminal justice system for failing to account for the particular characteristics of second generation sciences, and instead advocates for changes tailored to those specific concerns.
Number of Pages in PDF File: 74
Keywords: Criminal, DNA, Forensic Evidence, Forensic Science, Scientific Evidence
JEL Classification: K14
Date posted: April 19, 2006