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112 Nw. U. L. Rev. Online 1 (2017-2018)

handle is hein.journals/nulro112 and id is 1 raw text is: 

Copyright 2017 by  Jennifer D. Oliva and Valena E. Beety        Vol.  112
Northwestern University Law Review


                                Jennifer D. Oliva  and Valena  E. Beety

ABSTRACT-This Essay posits that certain structural dynamics, which
dominate  criminal proceedings, significantly contribute to the admissibility
of faulty forensic science in criminal trials. The authors believe that these
dynamics  are more insidious than questionable individual prosecutorial or
judicial behavior in this context. Not only are judges likely to be former
prosecutors, prosecutors are repeat players in criminal litigation and, as
such,  routinely support  reduced  pretrial protections for  defendants.
Therefore, we argue that the significant discrepancies between the civil and
criminal pretrial discovery and disclosure rules warrant additional scrutiny.
     In the criminal system, the near  absence of any  pretrial discovery
means   the criminal defendant  has little to no realistic opportunity to
challenge forensic evidence prior to the eve of trial. We identify the impact
of pretrial disclosure by exploring the admission of expert evidence  in
criminal cases from  a particular forensic discipline, specifically forensic
odontology.  Finally, this Essay proposes the  adoption of pretrial civil
discovery and disclosure rules in criminal proceedings to halt the flood of
faulty forensic evidence routinely admitted against defendants in criminal

AUTHORS-Jennifer D. Oliva, Associate Professor of Law and Public
Health, West Virginia University; Valena E. Beety, Associate Professor of
Law,   West   Virginia  University  College   of  Law.   We   thankfully
acknowledge  helpful comments  from  Brandon  Garrett, Adam Shniderman
and  Edward  Cheng.  We  also appreciated the opportunity to present this
piece  at the 2017   International Forensic Science  Error Management
Symposium   at the National Institute of Standards and Technology (NIST).
Our  work  on this project was supported by a generous Hodges  Research
Grant from West  Virginia University College of Law.


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