Document Type

Working Paper

Publication Date

11-23-2009

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; LSN Subject Matter eJournals; Criminal Justice Research Network; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network; CJRN Subject Matter eJournals

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 techniquesAlthough 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 sufficiencyoftheevidence 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 discussedThis 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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