Evidence biases

The Evidence Rules that Convict the Innocent

51 Pages Posted: 27 Mar 2020

Jeffrey Bellin

William & Mary Law School

Date Written: March 2, 2020


Over the past decades, DNA testing has uncovered hundreds of examples of the most important type of trial errors: innocent defendants convicted of serious crimes like rape and murder. The resulting Innocence Movement spurred reforms to police practices, forensic science, and criminal procedure. This Article explores the lessons of the Innocence Movement for American evidence law.

Commentators often overlook the connection between the growing body of research on convictions of the innocent and the evidence rules. Of the commonly identified causes of false convictions, only flawed forensic testimony has received sustained attention as a matter of evidence law. But other important contributors, like mistaken identifications and unreliable confessions, also pass through evidence rules. These pathways to admission go unquestioned today, but are the result of long-forgotten policy choices that were once controversial precisely because they increase the likelihood of convicting the innocent.

This Article highlights these, and other, overlooked implications of the Innocence Movement. It argues that the discovery and ongoing chronicle of hundreds of false convictions presents a unique opportunity to reevaluate American evidence law. This reevaluation could lead to innocence-protective changes to existing evidence rules, and a welcome infusion of energy into evidence policy-making and commentary.

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