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.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]