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102 J. Crim. L. & Criminology 329 (2012)
Judicial Gatekeeping of Police - Generated Witness Testimony

handle is hein.journals/jclc102 and id is 349 raw text is: 0091-4169/12/10202-0329
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY                     Vol. 102, No. 2
Copyright 0 2012 by Northwestern University School of Law    Printed in US.A.
JUDICIAL GATEKEEPING OF POLICE-
GENERATED WITNESS TESTIMONY
SANDRA GUERRA THOMPSON
This Article urges a fundamental change in the administration of
criminal justice. The Article focuses on what I call police-generated
witness testimony,  by which I mean confessions, police informants, and
eyewitness identications. These types of testimony are leading causes of
wrongful convictions. The Article shows that heavy-handed tactics by the
police have a tendency to produce false evidence of these types, especially
when the individuals being questioned by police are particularly
vulnerable, such as juveniles or those who are intellectually disabled or
mentally ill. It also demonstrates that there are procedural best practices
that the police can follow to reduce the dangers offalse evidence.
The most important feature of the Article is the proposal that courts
take an active role in ensuring the reliability of evidence in criminal trials
by invoking their gatekeeping responsibilities in screening police-generated
evidence by   holding pretrial reliability  hearings.  Current federal
constitutional doctrine fails to exclude patently unreliable police-generated
testimony. State high courts can invoke their state due process laws, as was
recently done in a seminal New Jersey case on eyewitness identification.
However, Federal Rule of Evidence 403 already gives trial courts broad
discretion to exclude evidence on the grounds that its potential to mislead
the jury substantially outweighs its probative value. Reliability hearings for
lay witness testimony already exist in criminal cases for some types of
evidence (mostly defense evidence), and they are also clearly required for
expert scientific evidence. Moreover, effective gatekeeping is consistent
with the objectives of the rules of evidence, not to mention ethical
requirements that judges secure the integrity of the trial process.
University of Houston Law Foundation Professor and Criminal Justice Institute
Director, University of Houston Law Center. The author represented the Texas public law
schools as a member of the Timothy Cole Advisory Panel on Wrongful Convictions for the
state legislature (2009-2010). She owes a debt of gratitude to Brandon Garrett, Keith
Findley, Richard Leo, Alexandra Natapoff, and Myrna Raeder for their insightful comments
on earlier drafts of the Article. Brooke Sizer and Michaiah Chatman provided excellent
research assistance.

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