Seminar: Sarah Lucy Cooper – Judicial decision-making in the United States in the era of innocence: the influence of legal process theory


This paper explores the influence of legal process theory on the judicial interpretation of legal challenges that are based on the use of unreliable forensic science against a petitioner, and pursued via ‘innocentric’ post-conviction relief mechanisms in the USA. These mechanisms are (1) appellate frameworks allowing due process challenges to the admissibility of unreliable forensic evidence admitted at trial; (2) newly discovered evidence frameworks that provide relief in the event “shifting scientific opinion” is ‘new’ and has ‘verdict changing capacity’; and (3) appellate frameworks that allow due process challenges to state clemency proceedings on the basis they are allegedly unfair due to a lack of state cooperation in providing access and testing of DNA evidence.

An examination of the relevant doctrine reveals that such challenges are rarely successful. In short, post-conviction courts reject these challenges on the basis that (1) the adversarial model should have weeded out unreliable forensic evidence at trial; (2) criticisms aimed at ‘soft’ forensic science disciplines are neither ‘new’ nor capable of deterring juries from findings of guilt; and (3) access to and testing of DNA evidence is not a constitutional right because the provision of such a right would usurp the United States’ “traditional system of justice.” In so holding, the courts side-line ideals of factual accuracy (to the best extent science can provide it) and, instead, rubber-stamp outcomes badged with procedural regularity.

My research confirms, therefore, that there is, in this context, a robust judicial fidelity to the legal process vision, which centres on the belief that procedural regularity (as opposed to substantive justice) legitimises outcomes. In particular, the judiciary demonstrate a systemic obsession with the doctrine of finality. This pattern in judicial decision-making is problematic because, inter alia, (1) it overlooks that the adversarial system itself and the social actors within that system struggle to accurately engage with scientific evidence; (2) it fails to accurately discern between credible and incredible ‘science’; and (3) it fails to acknowledge the corrective justice function afforded to clemency by the common law.

This approach to judicial decision-making ultimately fails to accept the way in which new and credible evidence – particularly scientific evidence – can cast legitimate doubt on the verdict of the trial or, indeed, the decision of a clemency board, “quite apart from any procedural defect.” As such, this body of research confirms the speculation of numerous theorists (such as Sheila Jasonoff, Mary Midgley, and David L. Faigman) that legal institutions misconstrue the capabilities of science. In light of the American Innocence Movement, which has seen 329 DNA exonerations to date, the courts’ continued fidelity to procedural regularity over substantive accuracy, and awkward approach to indeterminacy, in the post-conviction arenas explored, is troublesome and warrants a new approach that is more sensitive to accuracy. As such, this paper engages with legal theory in a practical and contemporary context.

Discussant: Dr. Euan MacDonald