Tuesday, November 6, 2018
Aviva Orenstein (Indiana University Maurer School of Law) has posted Debunked, Discredited, but Still Defended: Why Prosecutors Resist Challenges to Bad Science and Some Suggestions for Crafting Remedies for Wrongful Conviction Based on Changed Science (Seton Hall Law Review, Vol. 48, 2018) on SSRN. Here is the abstract:
Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. This article explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting the authority of experts or questioning long-accepted courtroom traditions. Thus, many judges and prosecutors cling to established legal precedent even when the underlying science has been discredited.