In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack of standards, research, and established error rates, and its failure to rely upon statistical probabilities to estimate the likelihood of a match. Since its inception, the Innocence Project has exonerated more than 250 people, a majority of whose convictions have involved inaccurate or even fraudulent forensic science testimony, including individualization evidence.

Despite the lack of proof that such evidence is scientifically reliable (and continued exculpations), courts have rejected most challenges to individualization evidence and continue to admit such testimony. With every exoneration, proof mounts that forensic science cannot do what it claims to be able to do with the precision alleged. By not requiring minimal standards for the reliability of individualization evidence, courts have allowed the forensic science system to operate without any checks and balances and to convict innocent people in numbers we can only estimate.

In February 2009, the National Academy of Sciences issued its long-awaited and groundbreaking report on the status of forensic science, Strengthening Forensic Science in the United States: A Path Forward (“the NAS Report”). The NAS Report is a scathing indictment of both the state of the forensic science system and judicial rulings on such individualization evidence.

This Article discusses the findings of the NAS Report, relevant cases that predate the report, and some cases decided since the report. It posits that the judiciary, which has created a standard of reliability, has failed to hold prosecutorial expert evidence to that standard. Using examples from history and modern cognitive science explanations, the Article tries to explain why the judiciary has been so unwilling to rigorously examine forensic science evidence and urges the judiciary to rethink its perspective going forward.

While the NAS Report suggests an overhaul of the current system, that overhaul is a contentious idea that may well not occur in the near (or even longer) future. Thus, a current crisis exists that the judiciary must address in its day-to-day decision making. The Article suggests how the judiciary can become a more effective crucible for testing the strength and limitations of forensic science.

Volume 2 The insanity defense.

Volume 3 Competency to be tried, imprisoned, and executed.

While courts have routinely admitted some neuroimages, such as CT scans and MRI, as proof of trauma and disease, they have been more circumspect about admitting the PET and SPECT scans and fMRI evidence. With the latter technologies, courts have often expressed reservations about what can be inferred from the images. Moreover, courts seem unwilling to find neuroimaging sufficient to prove either insanity or incompetency, but are relatively lenient about admitting neuroimages in death penalty hearings.

Some claim that fMRI and ‘‘brain fingerprinting’’ are able to detect deception. Other scholars argue that brain fingerprinting is a dubious concept and that fMRI is not yet sufficiently reliable. Moreover, there are substantial concerns about privacy and the perils of mind reading implicit in such technology. Yet, there is amovement to try to make these new technologies ‘‘courtroom ready’’ in the near future, raising a host of legal, policy, and ethical questions to be answered.

This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modern cases, which rely on syndromes for purposes of conviction and profiles for purposes of reasonable suspicion and probable cause, the essential cognitive error in the Salem trials is still present in the use of syndrome and profile evidence: the belief that criminal behavior can be determined with sufficient certainty by considering constellations of behaviors in either victims or defendants. This Article argues that experience-based conclusions about the relationship between observed behaviors and crime, when not subjected to a more searching or science-based scrutiny, are both incomplete and laced with the potential for error.

As developed more fully in Part VI, infra, courts have shown a great willingness to accept prosecutiorial profile and syndrome evidence, the validity of which is premised primarily on the experience of law enforcement officers and treating therapists. Courts have not been forceful in requiring proof of the underlying belief structures that animate profile and syndrome evidence, namely that crime is meaningfully related to defendant behavior and victim behavior. Part VI submits that current appreciation for scientific method, along with the Supreme Court's mandate that trial courts engage in rigorous “gatekeeping” of expert evidence and amended Federal Rule of Evidence 702, collectively support greater proof of reliability and validity of prosecutorial syndrome and profile evidence prior to its admissibility at trial.

Although the comparison between the witchcraft trials of 1692 and modern trials may be considered inflammatory, it is important to remember that the experts relied upon in Salem were employing precepts that had been in use for approximately a century. Moreover, although witchcraft may not have been the cause, there were numerous examples of people and animals in Salem becoming sick and dying. Thus, some of the harm was very real, even if the cause misperceived. Finally, it is the respective methodology under comparison, not the actual evidence. The law does not always recognize its own errors while they are occurring, but often discovers them only in the refracted light of history.

This article concludes that ASD must be cabined but allowed if we are to ensure the twin aims of security and justice. While we must be able to mold the law to encompass problems posed by unpredictable and lethal terrorists engaged in ruthless patterns of aggression, we must not seek to replace the law with lawless preemption, as does the Bush Doctrine. This article aims to find the middle ground between an overly rigid application of the self-defense doctrine and an overly flexible approach in which any type of perceived danger justifies preemptive action.

In Section II of the article, I discuss terrorism, the international law of self-defense, and the Bush Doctrine. In Section III, I address the problems of intimate violence against women, while I review in Section IV the law of self-defense as applied to women who kill their abusers. In Section V, I analyze the intersection between international and domestic law, and conclude that some form of ASD should be available to women who kill their abusers.

This Article provides a new perspective on misconvictions by focusing on the intersection of ethics and expert evidence in criminal cases, specifically considering the actions of judges and prosecutors. The Article has a dual focus: first, to explain the forensic science concerns that contribute to misconvictions; and second, to contemplate the role that the “ministers of justice”--the executive and judicial branches--play in creating misconvictions by their management of expert evidence. The Article then provides suggestions for improving the quality of justice to reduce the likelihood of wrongful convictions.

While trial judges decide whether evidence is admissible in criminal trials, prosecutors wield exceptional power in decisions about whom to prosecute and what evidence to introduce while trying a case. These two ministers of justice--possessing virtually all the power to regulate a criminal case--must be held to a high standard, not only to ensure convictions of those who have committed crimes, but also to ensure that to the degree possible, the innocent are not convicted. Yet prosecutors, by using unreliable forensic evidence and questionable expert witnesses, and judges, by failing to exercise their gatekeeping role in a sufficiently diligent manner, have become part of the mechanism by which misconvictions occur. This Article discusses ways for prosecutors and judges to rise to the ethical demands of their positions.

Part II of this Article details the laboratory failures, the proficiency concerns, and the myriad of problems with the so-called “individualization” specialties that seek to match a person to a crime.

Part III explains how prosecutors, in their role as ministers of justice, have an affirmative duty to try to avoid the wrongful conviction of innocent people by using unreliable expert evidence. The Article provides specific suggestions for achieving that goal. Part IV explains the ethics issues implicated when judges exercise their gatekeeping and trial management roles and also discusses options to help trial courts comply with such ethical obligations.