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22 Duke L. & Tech. Rev. 1 (2023)

handle is hein.journals/dltr22 and id is 1 raw text is: FORENSIC EVIDENCE AND RULE 3.8: WHAT DOES THE USE OF BITE MARK EVIDENCE TELL US ABOUT PROSECUTORIAL ETHICS? BRENDAN CLEMENTET ABSTRACT Rule 3.8 of the ABA's Model Rules of Professional Conduct should include rules that specifically address unethical uses of forensic evidence in criminal prosecutions. Forensic evidence is common in criminal trials. But the traditional rules of ethics do not effectively address the use of forensic evidence. Rule 3.8 should include a rule requiring prompt and full disclosure of information about expert witnesses whom the prosecutor plans to call and all relevant information that the prosecutor knows about a forensic method's application in the case. Rule 3.8 should also include a requirement that the prosecutor use reasonable diligence to learn about a forensic method and possess a good faith belief that the method's application in the case will be reliable before introducing the evidence at trial. INTRODUCTION One day, imagine you hear a loud, unexpected knock on the door. You ask who it is and it's the police. They ask you where you were on a particular night about a year ago. You tell them you are unsure of what you did that night, but that you were probably with your girlfriend or your friends at the local pub. Before you know what they are driving at, you are arrested for a gruesome murder that occurred on the night in question. Months later, you are sitting in court. The prosecution has an eyewitness who thinks he saw you around the apartment complex where the crime took place, and you have an alibi witness in your best friend. But the prosecution has someone else: a forensic odontologist. This expert witness is going to testify that a six-tooth bite mark on the victim's skin is a likely match to your dental profile. A few days later, you're convicted and sentenced to life in prison for a crime you did not commit. Does that seem like an ethical prosecution? The American criminal trial system first developed centuries ago.1 t Duke University School of Law, J.D. May 2022; B.A. in Economics and Political Science, University of Notre Dame, May 2018. 1 Hon. Alex Kozinski, Criminal Law 2.0, 44 GEO. L.J. ANN. REV. CRIM. PROC. iii, xviii (2015).

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