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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. 329

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