The exceptional accuracy of DNA, and the exonerations it has produced, have led to a reconsideration of cherished, but empirically untested, notions of the reliability of the criminal justice system. They have also, albeit incompletely, provoked a renewed commitment—reflected in new ethical rules, compensation schemes, and the testing statutes themselves—to protecting the innocent. But there is a danger that, as has happened with other advances in the protections afforded to the accused, the scope of DNA testing rights and the spirit embodied in them will erode as DNA testing loses its novelty. There is evidence that this has already begun. DNA waivers—through which a defendant gives up the right to the testing, and possibly preservation, of DNA evidence—have been widely sought by the Federal Government. The history of similar innovations in plea bargaining suggests that these waivers may spread to the states. The Article identifies this practice for the first time in the legal literature and explores their validity, their consequences, and the justifications behind their use. It argues that although courts are likely to enforce these waivers in most circumstances, they are deeply problematic, not least because of their damaging effect on the public’s confidence in the criminal justice system.
Volume 96 - No. 3
- Balancing First Amendment Rights with an Inclusive Environment on Public University Campuses
- Note: Affirmative Action: The Constitutional Approach to Ending Sex Disparities on Corporate Boards
- Academic Freedom To Deny the Truth: Beyond the Holocaust
- Free Speech, Higher Education, and the PC Narrative
- A Close-up, Modern Look at First Amendment Academic Freedom Rights of Public College Students and Faculty
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