Volume 4, Issue 1

Date of Publication: Spring 2016

M. Chris Fabricant & Tucker Carrington, The Shifted Paradigm: Forensic Science’s Overdue Evolution from Magic to Law

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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 far-reaching consequences result. Among those consequences are 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 invalid precedent. 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 obligation to revisit affected cases and provide appropriate 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.


Benjamin E. Rosenberg, Statutory and Constitutional Limits on the Preservation of Evidence

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Abstract: Much has been written about evidence spoliation, but very little has been written about evidence preservation. Technological developments, which allow prosecutors to keep evidence and information in searchable and retrievable formats, lead to previously unasked questions about evidence preservation. For example, what limits, if any, are there on how long the government may keep the information that it receives pursuant to a search warrant, or on how it may use that information? Would the answers to those questions be different if the information were obtained by grand jury subpoena? What if it were obtained pursuant to a trial subpoena? What, if any, limitations are there on how the government may use information obtained in connection with one case or investigation in a separate case or investigation?
These questions have only been asked rarely because, until quite recently, there was no reason to ask them. Evidence collected in connection with one case or investigation was usually kept in cardboard boxes or similarly low-tech containers and was usually forgotten once the case or investigation was completed. Technology has allowed for the development of databases which aggregate evidence from countless cases and can be sifted by all of the attorneys in the prosecutor’s office. Thus, the questions about evidence preservation are only recently relevant.
This article explores these aforementioned questions, and attempts to highlight the statutory, regulatory, and constitutional provisions that may answer them. The article shows that there are different constraints on the government’s use of information depending on how the government obtained the information. The rules governing information obtained pursuant to search warrants are different from the rules governing information obtained pursuant to grand jury subpoenas, and both of them are different from the rules governing information obtained pursuant to trial subpoenas, or searches incident to arrest. Common problems, however, may affect all of the information, including how to deal with the “fruit of the poisonous tree” problem. The article points out that the collection of information may be a tremendous benefit to prosecutors, but it may also benefit defendants in an unexpected way, as the information database may invigorate defendants’ rights under Brady.
In the end, the article suggests, the problems presented by evidence preservation—like many of the problems raised through technical developments—may be best addressed by legislative solutions rather than the amendment or reinterpretation of constitutional doctrine.


Eric R. Carpenter, Evidence of the Military’s Sexual Assault Blind Spot

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Abstract: In response to the American military’s perceived inability to handle sexual assault cases, many members of Congress have lost confidence in those who run the military justice system. Critics say that those who run the military justice system are sexist and perceive sexual assault cases differently than the public.
This article is the first to empirically test that assertion. Further, this is the first study to focus on the military population that  matters—those who actually run the military justice system
The study finds that this narrow military population endorses two constructs that are associated with the acceptance of inaccurate rape schemas—traditional gender role beliefs and conservatism—to a much higher degree than the general population. Regression models based on these findings predict that in a test rape case, 54% of the general public would find the man guilty while only 41% of this narrow military population would do so.
This suggests that, at the macro-level, those who run the military justice system may be honestly committed to resourcing the fight against sexual assault and to finding a solution to the problem, but that at the micro-level, when looking at a particular case, they have an unconscious cognitive process that interferes with their ability to accurately resolve it.


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