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Univ. of San Diego School of Law

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Thursday, December 3, 2009

Pardo on Evidence Theory and the NAS Report on Forensic Science

Pardo michael Michael S. Pardo  (University of Alabama School of Law) has posted Evidence Theory and the NAS Report on Forensic Science (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

The recent report of the National Academy of Sciences on forensic science documents an array of problems with the current use of forensic science in law enforcement and as evidence in criminal prosecutions. These problems are economic, political, legal, scientific, or epistemological in nature. The report recommends widespread reform aimed at improving the quality of forensic science and the juridical use of such evidence. The proposed reforms include, for example, creating an independent agency to oversee forensic science in the United States; establishing best practices and standardized protocols; improving education and training; and conducting further research into the scientific foundations of the various forensic techniques.

Although many of the report’s proposed reforms focus on activities that take place outside of legal proceedings, the report also provides an invitation for courts to respond to, and perhaps to improve upon, the law’s use of forensic evidence now and in the future. For this reason, it also provides an invitation to evidence scholars to develop a solid theoretical foundation for possible avenues of legal response to forensic science. This article discusses two possible avenues of response in light of theoretical accounts of the evidentiary proof process and its primary goals (accuracy and allocating the risk of error). Although much of the discussion regarding judicial responses to forensic science has focused on admissibility, I argue that sufficiency-of-the-evidence determinations provide a more theoretically justified response. Such a response, however, would require courts to develop more robust sufficiency review in criminal cases. I briefly sketch how this development might proceed in light of the theoretical considerations discussed.
This article was written for a symposium entitled, “Crime Laboratories on Trial: The Future of the Forensic Sciences,” forthcoming in the Utah Law Review.

 

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