Document Type

Article

Publication Title

California Law Review

Abstract

Accounts of powerful new forensic technologies such as DNA typing, data mining, biometric scanning, and electronic location tracking fill the daily news. Proponents praise these techniques for helping to exonerate those wrongly accused, and for exposing the failings of a criminal justice system that previously relied too readily upon faulty forensic evidence like handwriting, ballistics, and hair and fiber analysis. Advocates applaud the introduction of a "new paradigm" for forensic evidence, and proclaim that these new techniques will revolutionize how the government investigates and tries criminal cases. While the new forensic sciences undoubtedly offer an unprecedented degree of certainty and reliability, these characteristics alone do not necessarily render them less susceptible to misuse. In fact, as this Article argues, the most lauded attributes of these new forms of forensic evidence may actually exacerbate the conditions that first 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 the role offorensic evidence in the criminal justice system in three respects. First, this Article sets forth a new taxonomy of forensic evidence that distinguishes first from second generation forensic sciences. Second, using this framework, this Article illustrates how the particular characteristics of the second generation aggravate, rather than relieve, the pathologies that ultimately afflicted the first generation. Lastly, this Article criticizes current suggestions for improving the use offorensic evidence in the criminal justice system that fail to account for the peculiar characteristics of the second generation, and advocates alternative remedies tailored to these specific concerns.

First Page

721

DOI

https://doi.org/10.15779/Z38R404

Volume

95

Publication Date

2007

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