Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence

The growing number of wrongful convictions exposedover the past two-and-a-half decades, and the researchthat points to a few recurring types of flawed evidence inthose cases, raise questions about the effectiveness of therules of evidence and the constitutional admissibilitystandards that are designed to guard against unreliableevidence. Drawing on emerging empirical data, thisArticle concludes that the system can and should be adjusted to do a better job of guarding against unduereliance on flawed evidence. The Article first considers therole of reliability screening as a constitutional concern.The wrongful convictions data identify what might becalled "suspect evidentiary categories"--a few types ofevidence (eyewitness identifications, confessions, forensicscience, and snitch testimony) that are both recurringfeatures of wrongful convictions and not otherwisesusceptible to correction through traditional trialmechanisms and that, therefore, can and should besubjected to heightened scrutiny for reliability under theDue Process Clause.Recognizing, however, that the Supreme Court is movingaway from using constitutional doctrine to screen forreliability, this Article considers other mechanisms forbetter ensuring reliable evidence and accurate trialoutcomes. First, current trends in Supreme Courtjurisprudence suggest a due process framework thatfocuses upstream of the trial process on regulating thepolice and prosecutorial conduct that generates some of themost suspect trial evidence.

Second, the Article assessesnew applications of nonconstitutional evidence law thatoffer promise for filling the void in reliability review ofsuch suspect types of evidence. Finally, the Articleconsiders remedies in addition to exclusion that might aidin the enterprise of mitigating the harm from flawedevidence. Principal among these are broader use of expertwitnesses and jury instructions to educate fact findersabout the counterintuitive but scientifically establishedqualities of these categories of suspect evidence. Andbecause courts have proven reluctant to apply reliability-based exclusionary rules rigorously, the Article concludesby exploring partial exclusion-excluding the mostobjectionable parts of the evidence while permitting otherparts--as a remedy that courts might be more likely toactually enforce.