From Volume 87, Number 3 (March 2014)
The shortcomings of forensic evidence in the criminal justice system are now well known. But most scholarly attention has concentrated on “first-generation” forensic techniques such as hair or pattern analysis, bite marks, firearms, and ballistics. Moreover, most of the attention has centered on the investigative process, specifically the collection and analysis of evidence. This Essay turns the critical lens on scientific evidence in a different direction. It focuses on “second-generation” technologies—such as location tracking, biometrics, digital forensics, and other database-driven techniques, and it scrutinizes the adjudicative system—the “bail to jail” stream—rather than the investigative process. Ultimately, this Essay argues that almost every aspect of the adversarial process, as currently conceived, is ill-suited to ensuring the integrity of high-tech evidence. Specifically, the adversarial model demands individualized rather than collective inquiries, embraces secrecy rather than transparency, and privileges viva voce evidence over other forms of fact-gathering. Furthermore, it heavily depends upon the skill of counsel and in-court confrontation rather than out-of-court oversight and structural reform to address problems related to evidentiary integrity, and adopts rigid rules of finality grounded in part on an assumption that proof is always inconclusive. This Essay concludes that the eighteenth-century model of justice may be ill-suited to twenty-first-century evidence, and offers recommendations for a more reliable factfinding system.