Friday, April 9, 2010
Deborah Tuerkheimer (DePaul University - College of Law) has posted Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency on SSRN. Here is the abstract:
Increasingly in our criminal justice system, guilt is proven on the basis of science – a phenomenon I call science-dependent prosecution. This trend likely will continue, and even accelerate. Yet legal scholars have not grappled with the larger implications of this shift. Recent attacks on the validity of a number of forensic disciplines beg the question: must law perpetually chase science?
Science is subject to a process of constant revision, upending accepted “truths” in unpredictable ways. I argue that our justice system is ill-equipped to deal with the provisional nature of scientific knowledge. The problem I identify challenges fundamental tenets of criminal law and procedure: the privileging of finality; the deference afforded juries; the virtues of plea bargaining; the wisdom of adversarial models of justice; and, at bottom, our commitment to the presumption of innocence. Now is the time to reckon with the proper place of science in determining guilt. This article begins this conversation, using Shaken Baby Syndrome (SBS) as a case study.
Criminal law’s reliance on science should not be jettisoned. But our system must be armed to deal with the inevitability of scientific change. I conclude by offering suggestions for reform.