DePaul University – College of Law; University of Maine School of Law
New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. Most recently, after a seventeen-month investigation costing $8.3 million, a Canadian commission recommended that all SBS cases be reviewed.
In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change: for the first time, an SBS conviction was overturned last year because “newly discovered” scientific evidence would likely create a reasonable doubt about the defendant’s guilt; also for the first time, a state Supreme Court is considering whether a trial judge erred in excluding as unreliable the prosecution’s expert testimony regarding SBS; and the U.S. Supreme Court is now reviewing a petition seeking review of a habeas grant in an SBS case. Yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course.
These developments have not attracted the attention of legal scholars. In the face of this void, this article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry – for scientific engagement in law’s shadow, for future systemic reform, and for our understanding of innocence in a post-DNA world – should assist in the task of righting past wrongs and averting further injustice.
Date posted: March 06, 2009 ; Last revised: September 23, 2009
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