Self-Incrimination Doctrine is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, and the Anxieties of the Liberal State

Kenworthey Bilz, Northwestern University Law School

Abstract

Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) in criminal prosecutions. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of confessions, will no longer be relevant. The same anxieties that animated the need for a doctrine limiting and regulating confessions, should now shape the development of the very evidence that replaces them. As such, while scientific evidence doctrine is fairly clear and straightforward today (with an almost exclusive focus on “reliability”), it is destined to become as complicated and indeterminate as self-incrimination doctrine ever was. This process (of first, the replacement of confessions with scientific evidence, and second, of the development of a doctrine for scientific evidence that aims to protect the same values that self-incrimination doctrine protects), while still in its infancy, has already begun.