Criminal law’s science lag: How criminal justice meets changed scientific understanding

Texas Law Review

Volumn 93, Issue 7, 2015, Pages 1751-1781

  Laurin, Jennifer E ^a  

^a TEXAS A AND M UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 84938539604     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (244)

1. Babick v. Berghuis, 620 F.3d 571, 574-75 (6th Cir. 2010).
2. Babick v. Berghuis, No. 1:03- CV-20, 2008 WL 282166, at *33 (W.D. Mich. Jan. 29, 2008).
3. Babick, 2008 WL 282166, at *31.
4. Babick, 620 F.3d at 576, 578.
5. Babick, 2008 WL 282166, at *25-26.
6. See generally David L. Faigman et al., Modern Scientific Evidence: Forensics § 9:31 (student ed. 2008) (describing old, prevailing views on arson investigation).
7. Babick, 2008 WL 282166, at *31.
8. John J. Lentini, The Evolution of Fire Investigation and Its Impact on Arson Cases, Crim. Just., Spring 2012, at 12-14.
9. Babick, 2008 WL 282166, at *31.
10. People v. Babick, No. 1996-2562 FC, at 3 (Cir. Ct. Calhoun Cnty. Nov. 7, 2014) (order granting motion for new trial), http://thearsonproject.org/ charm/wp-content/uploads/2014/11/Babick_opinion_granting_motion.pdf.
11. http:// perma.cc/KP78-PNWY.
12. Babick, 620 F.3d at 577.
13. Babick, No. 1996-2562 FC at 3-4.
14. See generally David L. Faigman et al., Modern Scientific Evidence: Forensics § 9:31 (student ed. 2008) (describing old, prevailing views on arson investigation).
15. Paul C. Giannelli & Kimberly Gawel, Arson Evidence, 47 Crim. L. Bull. 1241, 1255 (2011).
16. John J. Lentini, The Evolution of Fire Investigation and Its Impact on Arson Cases, Crim. Just., Spring 2012, at 15-18.
17. Technical Working Group on Fire/Arson Scene Investigation, U.S. Dep't of Justice, Fire and Arson Scene Evidence: A Guide for Public Safety Personnel 6 (2000).
18. E.g., Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 478 (4th Cir. 2005) (citing an investigator's deviation from NFPA 921 standards as one reason to affirm the trial court's exclusion of the investigator's causation testimony).
19. Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1057-58 (8th Cir. 2005) (finding in the context of expert testimony that NFPA 921 "qualifies as a reliable method endorsed by a professional organization").
20. Travelers Indem. Co. v. Indus. Paper & Packaging Corp., No. 3:02-CV-491, 2006 WL 1788967, at *4 (E.D. Tenn. June 27, 2006) ("The [c]ourt recognizes that NFPA 921 is a peer reviewed and generally accepted standard in the fire investigation community.").
21. Trace Christenson, Michigan Convict Denied Bond After Winning Murder Retrial, Detroit Free Press, Dec. 16, 2014, http://www.freep.com/story/news/local/michigan/2014/ 12/16/andrew-babick-bond-retrial-hearing/20468719/.
22. http://perma.cc/UVJ4-3A6G.
23. The Innocence Project of Texas identified more than one thousand individuals in Texas alone who were serving prison sentences for arson when the group began a review of those convictions in 2011. Statewide Arson Review, Innocence Project of Tex., http://www.ipoftexas.org/statewide-arson-review.
24. http://perma.cc/7T74-7BV4.
25. Paul C. Giannelli, Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research, 2011 U. Ill. L. Rev. 53, 81-87 (describing controversy surrounding bullet-lead composition analysis).
26. Burr v. Florida, 474 U.S. 879, 881 (1985) (Marshall, J., dissenting from denial of certiorari) ("[T]he institutions of criminal justice have been adjusted in recognition that a jury's verdict and truth are not unerringly synonymous.").
27. Edward K. Cheng, Changing Scientific Evidence, 88 Minn. L. Rev. 315, 329 (2003) (asserting that the law requires some expediency that prevents prolonged research).
28. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 744 (2011) (contrasting science's dynamism with law's finality concerns).
29. Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 Yale L. & Pol'y Rev. 1, 14-25 (1993) (detailing the competing cultures of science and law).
30. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 744 (2011) (contrasting science's dynamism with law's finality concerns).
31. Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 Yale L. & Pol'y Rev. 1, 14-25 (1993) (detailing the competing cultures of science and law).
32. My colleagues Lynn Blais and Wendy Wagner have identified and analyzed similar dynamics in the administrative law context. See generally Lynn E. Blais & Wendy E. Wagner, Emerging Science, Adaptive Regulation, and the Problem of Rulemaking Ruts, 86 Texas L. Rev. 1701 (2008).
33. Jessica D. Gabel & Margaret D. Wilkinson, "Good" Science Gone Bad: How the Criminal Justice System Can Redress the Impact of Flawed Forensics, 59 Hastings L.J. 1001, 1013-26 (2008) (explaining that reliable, exonerating DNA evidence is unavailable to many prisoners postconviction due to time limits and procedural requirements).
34. Moreover, my analysis largely assumes conviction at trial rather than by plea. I do not discuss the important and challenging question of the extent to which postconviction claims of changed science should upend convictions by guilty plea.
35. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 744 (2011) (contrasting science's dynamism with law's finality concerns).
36. Margaret A. Berger & Lawrence M. Solan, The Uneasy Relationship Between Science and Law: An Essay and Introduction, 73 Brook. L. Rev. 847, 852 (2008) ("[R]ather than being in relative consensus, albeit without clear proof, the scientific community can often be in vigorous disagreement.").
37. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (referring to the "twilight zone" in the transition of science from experimental to demonstrable).
38. Comm. on Identifying the Needs of the Forensic Sci. Cmty. et al., Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 111 (2009) [hereinafter NAS Report] (describing forensic science as "a broad array of disciplines").
39. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 744 (2011) (contrasting science's dynamism with law's finality concerns).
40. Michael J. Saks & Jonathan J. Koehler, What DNA "Fingerprinting" Can Teach the Law About the Rest of Forensic Science, 13 Cardozo L. Rev. 361, 361-62 (1991) (elaborating on how the legal and scientific communities began to closely challenge the methodological underpinnings of DNA fingerprinting analysis).
41. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 744 (2011) (contrasting science's dynamism with law's finality concerns).
42. National Commission on Forensic Science, U.S. Department of Just., http://www.justice.gov/ncfs
43. http://perma.cc/LT5W-KHLB (describing the role of newly formed National Commission on Forensic Science "to promote scientific validity, reduce fragmentation, and improve federal coordination of forensic science").
44. Herrera v. Collins, 506 U.S. 390, 408 (1993) (tracing the historical development and relatively recent availability of new trials in criminal cases).
45. Mirjan Damaška, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L. Rev. 506, 575-87 (1973) (contrasting the adversarial and inquisitorial models' differing attention to fact-finding accuracy and adjudicative finality).
46. Herrera, 506 U.S. at 417 ("History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.").
47. John H. Langbein, The Origins of Adversary Criminal Trial 330-31 (2003) (discussing the role of procedure in preventing rather than correcting error).
48. Andrea Roth, Defying DNA: Rethinking the Role of the Jury in an Age of Scientific Proof of Innocence, 93 B.U. L. Rev. 1643, 1654-56 (2013) (reviewing the history of judicial deference to jurors as fact finders).
49. Edward K. Cheng, Changing Scientific Evidence, 88 Minn. L. Rev. 315, 329 (2003) (asserting that the law requires some expediency that prevents prolonged research).
50. Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. Pa. L. Rev. 547, 597 (2002) ("[I]t is primarily a claimed interest in 'finality' that undergirds the opposition to postconviction DNA testing.").
51. For an extreme example of such vigilance, see Strack v. Pelton, 637 N.E.2d 914, 916 (Ohio 1994). ("We are not unaware that our decision in effect declares as static a state of facts that reliable scientific evidence contradicts. Nonetheless, there are compelling reasons that support such a decision.").
52. See also Harvey v. Horan, 278 F.3d 370, 376 (4th Cir. 2002) ("[F]inality cannot be sacrificed to every change in technology. The possibility of post-conviction developments, whether in law or science, is simply too great to justify judicially sanctioned constitutional attacks upon final criminal judgments.").
53. State v. Avery, 826 N.W.2d 60, 76 (Wis. 2013) ("A new trial is not warranted every time new technology affects evidence admitted at an earlier trial . . . .").
54. Access to Post-Conviction DNA Testing, Innocence Project (Oct. 10, 2014, 9:20 AM), http://www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/access-to-postconviction- dna-testing.
55. http://perma.cc/X5DR-GNLL.
56. Jay D. Aronson, Genetic Witness: Science, Law, and Controversy in the Making of DNA Profiling 146-58 (2007) (recounting the "DNA Wars" in the early 1990s over the use and regulation of DNA forensic analyses).
57. A small number of jurisdictions permit convicted individuals to seek other, non-DNA forms of forensic testing that were not available at the time of their original trial. E.g., 725 Ill. Comp. Stat. Ann. 5/116-3 (West 2008) (permitting convicted individuals to apply for DNA, fingerprint, or ballistics analysis not conducted or unavailable at time of trial).
58. For an early pronouncement on this issue, see Shields v. State, 45 Conn. 266, 270 (1877), in which the court noted: After the trial is over and the accused stands convicted, with the heavy penalty of the law impending and just ready to fall upon him, how easy by artful or even honest suggestion to awaken a sympathy even in the heart of the victim . . . who naturally feels responsible for the conviction.
59. How easy for such witness by a process of speculation, colored by feeling, to feel and express a doubt about the correctness of the opinion entertained at the time of the transaction.
60. David S. Caudill & Lewis H. LaRue, Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional, and Rhetorical-and Not Just the Methodological- Aspects of Science, 45 B.C. L. Rev. 1, 4 (2003) (noting that the legal commentary on the Daubert factors for expert testimony is dominated by the idealization of scientific accuracy).
61. Mike Redmayne, Expert Evidence and Scientific Disagreement, 30 U.C. Davis L. Rev. 1027, 1046-1073 (1997) (arguing that the legal system's "emphasis on procedural truth" tends to exacerbate disagreements in the scientific community).
62. Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 Yale L. & Pol'y Rev. 1, 14-25 (1993) (detailing the competing cultures of science and law).
63. Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1, 23-27 (2009).
64. 18 U.S.C. § 3600(g)(2) (2012) (providing that a motion for new trial shall be granted if DNA test results "considered with all other evidence in the case . . . establish by compelling evidence that a new trial would result in an acquittal").
65. Tex. Code Crim. Proc. Ann. art. 64.04 (West Supp. 2014) (requiring a finding that had DNA results "been available during the trial of the offense, it is reasonably probable that the person would not have been convicted" to vacate conviction).
66. State v. Parmar, 808 N.W.2d 623, 632-33 (Neb. 2012) (discussing when new DNA evidence would create a substantial likelihood of a different result at trial).
67. Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197, 1237 (1980). The possibility that this dynamic is undermined by the "CSI Effect"-the notion that exposure to forensic evidence through popular culture has made jurors judgmental toward prosecutors' scientific evidence (or lack thereof) and, as a result, acquittal prone-has been posited but is contestable.
68. Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 Yale L.J. 1050 (2006) (positing a range of psychologically plausible juror reactions to scientific evidence in light of exposure to the television show CSI).
69. Shari Seidman Diamond et al., Juror Reactions to Attorneys at Trial, 87 J. Crim. L. & Criminology 17, 41 (1996) (stating that strong cross-examinations have little to no effect on the weight jurors give to expert testimony).
70. Margaret Bull Kovera et al., Reasoning About Scientific Evidence: Effects of Juror Gender and Evidence Quality on Juror Decisions in a Hostile Work Environment Case, 84 J. Applied Psychol. 362, 363 (1999) (indicating that jurors are heavily influenced by expert testimony, regardless of validity).
71. Margaret Bull Kovera et al., Expert Testimony in Child Sexual Abuse Cases: Effects of Expert Evidence Type and Cross- Examination, 18 Law & Hum. Behav. 653, 655-56 (1994) (noting that jurors assign more weight to evidence that is viewed as more scientific).
72. Richard B. Katskee, Science, Intersubjective Validity, and Judicial Legitimacy, 73 Brook. L. Rev. 857, 858 (2008) ("Scientific evidence . . . offers factfinders and concerned observers a common yardstick against which to measure the validity and explanatory power of proffered evidence. So opinions grounded in science . . . inspir[e] special confidence in judgments based on them.").
73. Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America 42-44, 52-54 (1995) (discussing differences between legal and scientific cultures of truth production).
74. Christopher Slobogin, The Structure of Expertise in Criminal Cases, 34 Seton Hall L. Rev. 105, 105 (2003) (predicting in criminal law, as a result of the Daubert trilogy's emphasis on testability and reliability, a "push . . . away from the notion that knowledge is socially constructed and toward a positivist epistemology that assumes we can know things objectively").
75. Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 658-59 (2005) (indicating that the procedural structure of state courts makes seeking innocence claims difficult).
76. Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 658-59 (2005) (indicating that the procedural structure of state courts makes seeking innocence claims difficult).
77. Jessica D. Gabel & Margaret D. Wilkinson, "Good" Science Gone Bad: How the Criminal Justice System Can Redress the Impact of Flawed Forensics, 59 Hastings L.J. 1001, 1013-26 (2008) (explaining that reliable, exonerating DNA evidence is unavailable to many prisoners postconviction due to time limits and procedural requirements).
78. Jessica D. Gabel & Margaret D. Wilkinson, "Good" Science Gone Bad: How the Criminal Justice System Can Redress the Impact of Flawed Forensics, 59 Hastings L.J. 1001, 1013-26 (2008) (explaining that reliable, exonerating DNA evidence is unavailable to many prisoners postconviction due to time limits and procedural requirements).
79. Fed. R. Crim. P. 33(b)(1) ("Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.").
80. E.g. Scott v. State, 788 N.W.2d 497, 503 (Minn. 2010) (denying new trial motion in light of changed bullet-lead science based on postconviction time bar).
81. Gassler v. State, 787 N.W.2d 575, 582-83, 587 (Minn. 2010) (same).
82. Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 49 (2009).
83. Erin Murphy, The Mismatch Between Twenty-First-Century Forensic Evidence and Our Antiquated Criminal Justice System, 87 S. Cal. L. Rev. 633, 669-72 (2014) (describing common problems encountered by state and federal courts in postconviction proceedings).
84. 28 U.S.C. §§ 2254(a), 2255(a) (2012) (indicating that habeas relief requires a showing of a constitutional violation).
85. E.g. La. Code Crim. Proc. Ann. art. 930.3(1) (2008) (stating that habeas relief is granted when constitutional error is shown).
86. Ohio Rev. Code Ann. § 2953.21(A)(1)(a) (West 2014) (same).
87. Wyatt v. State, 71 So.3d 86, 97 (Fla. 2011)
88. Brady v. Maryland, 373 U.S. 83 (1963)
89. Strickland v. Washington, 466 U.S. 668 (1984).
90. Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012) ("[T]he potential unreliability of a type of evidence does not alone render its introduction at the defendant's trial fundamentally unfair.").
91. Herrera v. Collins, 506 U.S. 390, 400 (1993).
92. Cavazos v. Smith, 132 S.Ct. 2, 4-7 (2011) (per curiam)
93. Jackson v. Virginia, 443 U.S. 307 (1979).
94. Herrera, 506 U.S. at 417 (acknowledging that only "a truly persuasive demonstration of 'actual innocence' . . . would render the execution of a defendant unconstitutional").
95. E.g., Carriger v. Stewart, 132 F.3d 463, 476-77 (9th Cir. 1997).
96. Robbins, 360 S.W.3d 446, 458 (Tex. Crim. App. 2011) (holding that relief not warranted where expert reevaluated previously incriminating findings and stated that she "can no longer stand by her trial testimony").
97. Herrera, 506 U.S. at 417.
98. Caitlin Plummer & Imran Syed, "Shifted Science" and Post-Conviction Relief, 8 Stan. J. C.R. & C.L. 259, 276-86 (2012) (discussing possible constitutionally based arguments for collateral claims).
99. 373 U.S. 83 (1963).
100. 360 U.S. 264 (1959).
101. Strickland v. Washington, 466 U.S. 668, 686 (1984) (establishing guidance on constitutional claims of ineffective counsel).
102. Hinton v. Alabama, 134 S. Ct. 1081, 1088-89 (2014).
103. Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011)
104. Alan Blinder, Alabama Man Freed After Decades on Death Row, N.Y. Times, Apr. 3, 2015, http://www.nytimes.com/2015/04/04/us/anthony-ray-hinton-alabama-prison-freed-murder.html
105. http://perma.cc/L8ZT-KMPN.
106. United States v. Higgs, 663 F.3d 726, 738 (4th Cir. 2011) (rejecting Brady claim for nondisclosure of CBLA studies known or commissioned by FBI).
107. Gimenez v. Ochoa, No. 12- CV-1137-LAB-BLM, 2014 WL 1302463, at *6 (S.D. Cal. Mar. 27, 2014) (rejecting ineffective assistance, false testimony, and actual-innocence claims concerning shaken-baby syndrome).
108. Flick v. Warren, No. 2:05-CV-73367, 2009 WL 3698547, at *16 (E.D. Mich. Nov. 5, 2009) (rejecting ineffective assistance of counsel claims regarding shaken-baby syndrome).
109. Latta v. Chapala, 221 F. App'x 443, 445 (7th Cir. 2007) ("Using the methods of the 1980s during the 1980s does not violate the Constitution.").
110. 71 So. 3d 86 (Fla. 2011).
111. Jessica D. Gabel & Margaret D. Wilkinson, "Good" Science Gone Bad: How the Criminal Justice System Can Redress the Impact of Flawed Forensics, 59 Hastings L.J. 1001, 1013-26 (2008) (explaining that reliable, exonerating DNA evidence is unavailable to many prisoners postconviction due to time limits and procedural requirements).
112. United States v. Starzecpyzel, 880 F. Supp. 1027, 1048 (S.D.N.Y. 1995).
113. E.g., Dickens v. State, 997 N.E.2d 56, 61 (Ind. Ct. App. 2013) (concluding that the defendant failed to show that exclusion of expert CBLA evidence would make a different result at retrial probable because the CBLA evidence was not what placed the defendant at the scene of the crime, eyewitness testimony did).
114. Commonwealth v. Fisher, 870 A.2d 864, 872 (Pa. 2005) (deciding that discrediting the CBLA expert witness with new criticism of the scientific technique would not exculpate the defendant).
115. Robertson v. State, No. M2013-02023-CCA-R3-CO, 2014 WL 5491315, at *11-12 (Tenn. Crim. App. Oct. 30, 2014) (determining that the FBI's change of policy on CBLA use was not "newly discovered evidence" because shortcomings were previously known).
116. Peck v. State, No. E2013-01760-CCA-R3-ECN, 2014 WL 3735224, at *3 (Tenn. Crim. App. July 28, 2014) (concluding that defense counsel successfully questioned the witness and accordingly the expert witness testimony did not change the outcome of the trial). For examples of federal courts reaching similar conclusions when considering Rule 33 motions for a new trial.
117. United States v. Higgs, 663 F.3d 726, 743 (4th Cir. 2011)
118. United States v. Berry, 624 F.3d 1031, 1040 (9th Cir. 2010).
119. E.g., Newby v. State, No. A-10464, 2010 WL 3273502, at *2 (Alaska Ct. App. Aug. 18, 2010) (holding that "the weakness in the CBL analysis does not indicate that there was another perpetrator, establish an alibi, or otherwise tend to establish Newby's innocence").
120. Margaret A. Berger & Lawrence M. Solan, The Uneasy Relationship Between Science and Law: An Essay and Introduction, 73 Brook. L. Rev. 847, 852 (2008) ("[R]ather than being in relative consensus, albeit without clear proof, the scientific community can often be in vigorous disagreement.").
121. Comm. on Identifying the Needs of the Forensic Sci. Cmty. et al., Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 111 (2009) [hereinafter NAS Report] (describing forensic science as "a broad array of disciplines").
122. Rachel E. Barkow, Prosecutorial Administration: Prosecutor Bias and the Department of Justice, 99 Va. L. Rev. 271, 291-92 (2013) (describing the close relationship between the forensic-science community and law enforcement).
123. Jennifer E. Laurin, Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight, 91 Texas L. Rev. 1051, 1060-63 (2013) (showing how the emergence of DNA revealed a lack of oversight in other forensic-science areas).
124. Comm. on Identifying the Needs of the Forensic Sci. Cmty. et al., Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 111 (2009) [hereinafter NAS Report] (describing forensic science as "a broad array of disciplines").
125. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 744 (2011) (contrasting science's dynamism with law's finality concerns).
126. Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197, 1237 (1980). The possibility that this dynamic is undermined by the "CSI Effect"-the notion that exposure to forensic evidence through popular culture has made jurors judgmental toward prosecutors' scientific evidence (or lack thereof) and, as a result, acquittal prone-has been posited but is contestable.
127. Comm. on Identifying the Needs of the Forensic Sci. Cmty. et al., Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 111 (2009) [hereinafter NAS Report] (describing forensic science as "a broad array of disciplines").
128. Jennifer E. Laurin, Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight, 91 Texas L. Rev. 1051, 1060-63 (2013) (showing how the emergence of DNA revealed a lack of oversight in other forensic-science areas).
129. Guiding Principles, Am. Soc'y Crime Laboratory Directors, http://www.ascld-lab.org/guiding-principles.
130. Tex. Forensic Sci. Comm'n, Statement Regarding Texas Hair Microscopy Review 1, available at http://www.fsc.texas.gov/sites/default/files/Statement- Regarding-Texas-Hair-Microscopy-Review.pdf.
131. Calls for independent laboratories, seen in a small number of jurisdictions, are inspired largely by these concerns. Paul C. Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, 2010 Utah L. Rev. 247, 250-58 (describing the variety of biases that plague forensic-science laboratories by virtue of their association with law enforcement offices).
132. Comm. on Identifying the Needs of the Forensic Sci. Cmty. et al., Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 111 (2009) [hereinafter NAS Report] (describing forensic science as "a broad array of disciplines").
133. Comm. on Identifying the Needs of the Forensic Sci. Cmty. et al., Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 111 (2009) [hereinafter NAS Report] (describing forensic science as "a broad array of disciplines").
134. Comm. on Identifying the Needs of the Forensic Sci. Cmty. et al., Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 111 (2009) [hereinafter NAS Report] (describing forensic science as "a broad array of disciplines").
135. B.D. Gaudette & E.S. Keeping, An Attempt at Determining Probabilities in Human Scalp Hair Comparison, 19 J. Forensic Sci. 599, 605 (1974).
136. Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 49 (2009).
137. Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 49 (2009).
138. Spencer S. Hsu, Convicted Defendants Left Uninformed of Forensic Flaws Found by Justice Dept., Wash. Post, Apr. 16, 2012, http://www.washingtonpost.com/local/crime/convicteddefendants- left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT _story.html.
139. http://perma.cc/3FNS-279Z (describing various cases reviewed in the 1990s following "reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials").
140. Rachel E. Barkow, Prosecutorial Administration: Prosecutor Bias and the Department of Justice, 99 Va. L. Rev. 271, 291-92 (2013) (describing the close relationship between the forensic-science community and law enforcement).
141. Simon A. Cole, More Than Zero: Accounting for Error in Latent Fingerprint Identification, 95 J. Crim. L. & Criminology 985, 987-90, 988 n.20 (2005) (discussing the concept of "error rate" and the myth of fingerprint identification infallibility in forensic fingerprint technology).
142. Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197, 1237 (1980). The possibility that this dynamic is undermined by the "CSI Effect"-the notion that exposure to forensic evidence through popular culture has made jurors judgmental toward prosecutors' scientific evidence (or lack thereof) and, as a result, acquittal prone-has been posited but is contestable.
143. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 744 (2011) (contrasting science's dynamism with law's finality concerns).
144. This assumes, contra the discussion in subpart II(A), that experts are themselves updating prior knowledge.
145. Rachel E. Barkow, Prosecutorial Administration: Prosecutor Bias and the Department of Justice, 99 Va. L. Rev. 271, 291-92 (2013) (describing the close relationship between the forensic-science community and law enforcement).
146. Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 Ohio St. J. Crim. L. 467, 506 (2009) ("The principal power and responsibility for correcting error-even if not the ultimate legal authority-reside in prosecutors. . . . As a legal matter, and in theory, the power resides elsewhere . . . . But, as a practical matter, the prosecutor has the largest say.").
147. Erik Luna & Marianne Wade, Prosecutors As Judges, 67 Wash. & Lee L. Rev. 1413, 1415 (2010) ("In many (if not most) American jurisdictions, the prosecutor is the criminal justice system. For all intents and purposes, he makes the law, enforces it against particular individuals, and adjudicates their guilt and resulting sentences.").
148. Office of the Inspector Gen., U.S. Dep't of Justice, An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory, at 1 (2014) (detailing that Department of Justice prosecutors conducted initial review of cases implicated by discovered laboratory error).
149. Press Release, Fed. Bureau of Investigation, FBI Laboratory Announces Discontinuation of Bullet Lead Examinations (Sept. 1, 2005), available at http://www.fbi.gov/news/pressrel/press-releases/fbi-laboratory-announces-discontinuation-ofbullet- lead-examinations
150. http://perma.cc/X4LX-9SRJ (introducing the FBI's announcement that "it will no longer conduct the examination of bullet lead").
151. Nat'l Comm'n on the Future of DNA Evidence, U.S. Dep't of Justice, Postconviction DNA Testing: Recommendations for Handling Requests, at xv-xvi (1999) (treating prosecutors as loci for postconviction evidentiary release determination).
152. Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. Pa. L. Rev. 547, 597 (2002) ("[I]t is primarily a claimed interest in 'finality' that undergirds the opposition to postconviction DNA testing.").
153. Berger v. United States, 295 U.S. 78, 88 (1935).
154. Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 46-49 (1991) (discussing the dual and often vague role of professional duty and responsibility in criminal cases and stating that "[i]ts vagueness leaves prosecutors with only their individual sense of morality to determine just conduct").
155. Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. Pa. L. Rev. 959, 961-62 (2009) (lamenting some of the "deeper, systemic problems with patterns of prosecutorial discretion").
156. Bruce A. Green & Fred C. Zacharias, "The U.S. Attorneys Scandal" and the Allocation of Prosecutorial Power, 69 Ohio St. L.J. 187, 189-90 (2008) (noting that "[p]rosecutorial misconduct traditionally is considered to be the product of too much independence" and stating that "[p]roposed solutions include . . . increased oversight and decision making by supervisory personnel").
157. Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 Wm. & Mary L. Rev. 1587, 1613 (2006) (suggesting that prosecutors may "cling to the theory of guilt" in postconviction proceedings in order to avoid cognitive dissonance).
158. Fred C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 Vand. L. Rev. 171, 174-75 (2005) (proposing that "prosecutors' incentives at the postconviction stage militate against taking action that benefits convicted defendants" because "prosecutors properly presume that convicted defendants have received a fair trial and have been punished appropriately").
159. Fred C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 Vand. L. Rev. 171, 174-75 (2005) (proposing that "prosecutors' incentives at the postconviction stage militate against taking action that benefits convicted defendants" because "prosecutors properly presume that convicted defendants have received a fair trial and have been punished appropriately").
160. Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit, 84 Wash. L. Rev. 35, 49 (2009) (remarking that "[w]ith respect to ethics, prosecutors encounter few concrete obligations to implement the minister-of-justice ideal in the post-conviction setting").
161. Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 68-69 (2009) (holding that the constitutional obligation to disclose material exculpatory evidence does continue after the defendant is convicted).
162. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988) (holding that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law" even though the evidence might be beneficial to the defendant).
163. Model Rules of Prof'l Conduct R. 3.8(g), (h) (2014).
164. Bruce A. Green, Prosecutors and Professional Regulation, 25 Geo. J. Legal Ethics 873, 889-93 (2012) (recounting opposition "to new state rules of professional conduct based on ABA Model Rules 3.8(g) and 3.8(h)").
165. Model Rules of Prof'l Conduct R. 3.8(g) (2014).
166. Stephen A. Saltzburg, Changes to Model Rules Impact Prosecutors, Crim. Just., Spring 2008, at 1-13 (discussing the ABA's new standards in Model Rules 3.8(g) and 3.8(h), but noting that "not everyone was persuaded that [these sections] provided clear enough guidance to prosecutors").
167. Alexandra White Dunahoe, Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence Economics and Transitory Prosecutors, 61 N.Y.U. Ann. Surv. Am. L. 45, 60 (2005).
168. Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Colum. L. Rev. 749, 787-88, 787 n.175 (2003) (citing studies indicating "that length of service for [Assistant U.S. Attorneys] was seven years for 1990 through 1992, and eight years for 1993 through 1996").
169. Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 Ohio St. J. Crim. L. 467, 506 (2009) ("The principal power and responsibility for correcting error-even if not the ultimate legal authority-reside in prosecutors. . . . As a legal matter, and in theory, the power resides elsewhere . . . . But, as a practical matter, the prosecutor has the largest say.").
170. Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 658-59 (2005) (indicating that the procedural structure of state courts makes seeking innocence claims difficult).
171. Steven W. Perry & Duren Banks, Bureau of Justice Statistics, Prosecutors in State Courts, 2007-Statistical Tables 1 (2012) (finding more than 2,300 state court prosecutors' offices operating in 2007 and noting that "[b]y law, these prosecutors are afforded broad discretion in determining who is charged with an offense and whether a case goes to trial").
172. Del Prete v. Thompson, 10 F. Supp. 3d 907, 957-58 (N.D. Ill. 2014) (questioning whether the expert medical testimony offered by the defendant regarding shakenbaby injuries would be sufficient to prove causation).
173. Ex parte Henderson, 384 S.W.3d 833, 833- 34 (Tex. Crim. App. 2012) (per curiam) (accepting the lower court's grant of a new trial based on new developments in the field of biomechanics).
174. State v. Edmunds, 746 N.W.2d 590, 598-99 (Wis. Ct. App. 2008) (recognizing a "shift in mainstream medical opinion . . . as to the causes of the types of trauma [the victim] exhibited," and holding that "the emergence of a legitimate and significant dispute within the medical community . . . constitutes newly discovered evidence").
175. Keith A. Findley et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous. J. Health L. & Pol'y 209, 242 (2012) ("In general, prosecutors and child abuse pediatricians continue to strongly endorse the SBS/AHT hypothesis . . . .").
176. Joëlle Anne Moreno & Brian Holmgren, The Supreme Court Screws Up the Science: There is No Abusive Head Trauma/Shaken Baby Syndrome "Scientific" Controversy, 2013 Utah L. Rev. 1357 (presenting two prosecutors' views that new medical evidence involving Abusive Head Trauma (AHT) and Shaken-Baby Syndrome (SBS) claims are litigation driven and not credible).
177. Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1, 23-27 (2009).
178. The Nat'l Registry of Exonerations, Update 2012, at 2-3 (2013) (describing "a dramatic increase in the number and the proportion of exonerations that prosecutors or police participated in obtaining").
179. Brief of Amici Curiae in Support of Appellant at 10.
180. Wyatt v. State, 71 So.3d 86 (Fla. 2011) (No. 08-655), 2010 WL 2476188, at *10 n.7 (asserting that the FBI only notifies prosecutors, not defense attorneys, when there may be unreliable evidence and that prosecutors in many instances have failed to notify the defense attorney of such findings).
181. Spencer S. Hsu, Convicted Defendants Left Uninformed of Forensic Flaws Found by Justice Dept., Wash. Post, Apr. 16, 2012, http://www.washingtonpost.com/local/crime/convicteddefendants- left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT _story.html.
182. Nix v. Whiteside, 475 U.S. 157, 189 (1986) (Blackmun, J., concurring) (explaining that the Sixth Amendment requires "zealous and loyal advocacy").
183. Model Rules of Prof'l Conduct R. 1.6, 1.7, 1.9 (2014) (describing the duties attorneys owe current and former clients).
184. Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (holding that the right to counsel guaranteed by the Sixth Amendment is a fundamental right).
185. Griffin v. Illinois, 351 U.S. 12, 24 (1956) (Frankfurter, J., concurring) (guaranteeing indigent clients assistance of counsel on nonfrivolous appeals).
186. Maples v. Thomas, 132 S. Ct. 912, 918 (2012) (noting that Alabama is "[n]early alone among the States" in that it does not "guarantee representation to indigent capital defendants in postconviction proceedings").
187. John H. Blume et al., In Defense of Noncapital Habeas: A Response to Hoffman and King, 96 Cornell L. Rev. 435, 445 (observing that many states do not provide indigents any right of counsel when challenging noncapital offenses and remarking that other states provide counsel only in very limited circumstances).
188. Margaret A. Berger & Lawrence M. Solan, The Uneasy Relationship Between Science and Law: An Essay and Introduction, 73 Brook. L. Rev. 847, 852 (2008) ("[R]ather than being in relative consensus, albeit without clear proof, the scientific community can often be in vigorous disagreement.").
189. E.g., State v. Urbano-Uriostegui, No. M2012-00235-CCA-R3-CD, 2013 WL 1896931, at *18 (Tenn. Crim. App. May 6, 2013) (listing the requirements that must be established in order for a defendant to "'obtain a new trial on the basis of newly discovered evidence'").
190. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994).
191. Babick v. Berghuis, No. 1:03-CV-20, 2008 WL 282166, at *10 (W.D. Mich. Jan 29, 2008) (asserting that a defendant cannot prevail on an ineffective assistance of counsel claim for failing to introduce expert testimony if the defendant does not show "'what evidence counsel should have pursued and how such evidence would have been material'").
192. Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002).
193. Nat'l Right to Counsel Comm., Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel 53 (2009).
194. The Spangenberg Grp., Am. Bar Ass'n Standing Comm. on Legal Aid & Indigent Defendants, State Indigent Defense Commissions 1 (2006).
195. Nat'l Right to Counsel Comm., Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel 53 (2009).
196. Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 49 (2009).
197. Harrington v. Richter, 131 S. Ct. 770, 791-92 (2011) (reversing a lower-court holding that counsel was ineffective for failing to call an expert to counter state's serology and blood-pattern analysis).
198. Practitioner's Corner: Practice Links, Nat'l Legal Aid & Defender Ass'n, http://www.nlada.org/Defender/Defender_Practitioner/Defender_Practitioner_Links.
199. http://perma.cc/J6FX-F6B7 (providing links through which practitioners can access information relating to forensic science).
200. The Spangenberg Grp., Am. Bar Ass'n Standing Comm. on Legal Aid & Indigent Defendants, State Indigent Defense Commissions 1 (2006).
201. New York St. Off. Indigent Legal Services, http://www.ils.ny.gov/.
202. https://perma.cc/5U6L-Z5EJ (showing creation of New York commission in 2010 subsequent to the Spangenberg study).
203. Michigan Indigent Defense Commission Act, Act No. 93, 2013 Mich. Pub. Acts 53 (creating the Michigan indigent defense commission for the purpose of "provid[ing] indigent defendants in criminal cases with effective assistance of counsel").
204. Senate Research Center, Bill Analysis, Tex. S.B. 344, 83rd Leg., R.S. (2013), available at http://www.legis.state.tx.us/tlodocs/83R/analysis/pdf/SB00344S.pdf#navpanes=0.
205. http://perma.cc/8R9C-ZTEW (recognizing that Senate Bill 344 "specifies that evidence to contradict scientific evidence presented at trial is among the types of claims or issues that can affect . . . an application for a writ of habeas corpus" and noting that the bill might modify claims considered by the Court of Criminal Appeals).
206. Tex. Code Crim. Proc. Ann. art. 11.073(b) (West 2014).
207. Senate Committee Report, Witness List, S.B. 344, 83rd Leg., R.S. (2013), available at http://www.legis.state.tx.us/tlodocs/83R/witlistbill/ pdf/SB00344S.pdf#navpanes=0
208. Tex. Code Crim. Proc. Ann. art. 11.073 (West 2014).
209. California also recently amended its habeas corpus statute to permit relief from a verdict based on "false evidence," defined (as amended) as "opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances." Cal. Penal Code § 1473 (West Supp. 2015). The legislative action in 2014 apparently responded to a California Supreme Court interpretation of the prior habeas statute as not authorizing relief where a prior scientific opinion was merely recanted or criticized by new developments but not shown to be "objectively untrue."
210. Richards, 289 P.3d 860, 871 (Cal. 2012).
211. David S. Mitchell, Jr., Comment, Lock 'Em Up and Throw Away the Key: "The West Memphis Three" and Arkansas's Statute for Post-Conviction Relief Based on New Scientific Evidence, 62 Ark. L. Rev. 501, 531 (2009) (discussing judicial evisceration of purpose behind Arkansas's scientific-evidence habeas statute).
212. Work Products, U.S. Department of Just., http://www.justice.gov/ncfs/ work-products.
213. http://perma.cc/9ZJG-X4VQ (listing Department of Justice work product addressing issues raised in the 2009 NAS Report).
214. Stephen T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario 437-57 (2008) (addressing the roles that coroners, police, prosecutors, and defense counsel can play in restoring and enhancing the public's confidence in pediatric forensic pathology).
215. In re Investigation of the W. Va. State Police Crime Lab., Serology Div., 438 S.E.2d 501, 502, 508 (W. Va. 1993) (describing forensic analyst's misconduct in fabricating state crime lab reports and implementing a report to address convictions that had been based on the falsified evidence).
216. Press Release, Fed. Bureau of Investigation, FBI Laboratory Announces Discontinuation of Bullet Lead Examinations (Sept. 1, 2005), available at http://www.fbi.gov/news/pressrel/press-releases/fbi-laboratory-announces-discontinuation-ofbullet- lead-examinations
217. Spencer S. Hsu, Convicted Defendants Left Uninformed of Forensic Flaws Found by Justice Dept., Wash. Post, Apr. 16, 2012, http://www.washingtonpost.com/local/crime/convicteddefendants- left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT _story.html.
218. Press Release, Fed. Bureau of Investigation, FBI Laboratory Announces Discontinuation of Bullet Lead Examinations (Sept. 1, 2005), available at http://www.fbi.gov/news/pressrel/press-releases/fbi-laboratory-announces-discontinuation-ofbullet- lead-examinations
219. Evidence of Injustice: FBI's Bullet Lead Analysis Used Flawed Science to Convict Hundreds of Defendants, 60 Minutes, CBSNews (Nov. 16, 2007), http://www.cbsnews.com/ news/evidence-of-injustice.
220. http://perma.cc/MRM7-PH64.
221. Press Release, Nat'l Ass'n of Criminal Def. Lawyers, Innocence Network and National Association of Criminal Defense Lawyers Announce Joint Task Force to Review Cases Impacted by Discredited FBI Bullet Analysis (Nov. 19, 2007), available at http://www.nacdl.org/ NewsReleases.aspx?id=19299&terms=bullet+task+force.
222. http://perma.cc/D7KXTW6W.
223. Norman L. Reimer, The Hair Microscopy Review Project: An Historic Breakthrough for Law Enforcement and a Daunting Challenge for the Defense Bar, Champion, July 2013, at 16, available at http://www.nacdl.org/champion.aspx?id=29488.
224. https://perma.cc/ JZS6-Q85Z (outlining the contours of the National Association of Criminal Defense Lawyers' partnership with the Innocence Project and the Federal Bureau of Investigation "to review thousands of criminal cases in which the FBI conducted microscopic hair analysis of the crime scene evidence").
225. The Innocence Project of Texas identified more than one thousand individuals in Texas alone who were serving prison sentences for arson when the group began a review of those convictions in 2011. Statewide Arson Review, Innocence Project of Tex., http://www.ipoftexas.org/statewide-arson-review.
226. Linda Geddes, FBI Errors Throw Forensic Convictions into Question, NewScientist Life, Aug. 1, 2014, http://www.newscientist.com/article/dn25994-fbi-errorsthrow- forensic-convictions-into-question.html.
227. http://perma.cc/5HJK-YRW6 (noting that only three states have launched reviews of convictions involving hair analysis).
228. Ryan M. Goldstein, Note, Improving Forensic Science Through State Oversight, 90 Texas L. Rev. 225, 235-49 (2011) (describing a range of approaches for state forensic-science oversight).
229. Tex. Forensic Sci. Comm'n, Willingham/Willis Investigation 2-3 (2011) (stating that the TFSC investigates allegations of scientific misconduct of negligence, develops standards to govern its internal processes, provides recommendations, and coordinates accountability with other agencies).
230. Texas Hair Microscopy Case Review, Texas Forensic Sci. Commission, http://www.fsc.texas.gov/texas-hair-microscopy-case-review.
231. http://perma.cc/E88ZXN6R.
232. Tex. Forensic Sci. Comm'n & Tex. Criminal Justice Integrity Unit, Defendant Notification After Major Forensic Nonconformance, at ii (2013).
233. Josh Mitchell, Public Defender Funding Restricted Despite Caseload Problem Found in Report, Missourian, Sept. 25, 2014, http://www.emissourian.com/local_news/county /public-defender-funding-restricted-despite-caseload-problems-found-in-report/article_37731865- d0e0-54a2-9390-7bfe5165407c.html.
234. http://perma.cc/7EUH-VVPH (reporting that Missouri Governor Jay Nixon vetoed and then restricted a bill twice passed by the state legislature to address overflowing caseloads in public defender offices across the state).
235. Ron Nixon, Public Defenders Are Tightening Belts Because of Steep Federal Budget Cuts, N.Y. Times, Aug. 23, 2013, http://www.nytimes.com/2013/08/24/us/public-defenders-are-tightening-belts-because-ofsteep- federal-budget-cuts.html?_r=0.
236. http://perma.cc/5DQN-NWRF ("Faced with steep cuts to their budgets, federal public defenders around the country have furloughed or laid off hundreds of lawyers and other staff members, spent less on expert witnesses and cut back on caserelated travel.").
237. Erin Murphy, The Mismatch Between Twenty-First-Century Forensic Evidence and Our Antiquated Criminal Justice System, 87 S. Cal. L. Rev. 633, 669-72 (2014) (describing common problems encountered by state and federal courts in postconviction proceedings).
238. Forensic Resources: North Carolina Off. Indigent Def. Services, http://www.ncids.com/forensic/resources/resources.shtml.
239. http://perma.cc/UC84- 4PDM.
240. Norman Lefstein, The Movement Towards Indigent Defense Reform: Louisiana and Other States, 9 Loy. J. Pub. Int. L. 125, 126 (2008) (noting recent indigent defense commissions created in North Carolina, Oregon, Texas, Georgia, Virginia, Montana, North Dakota, South Carolina, and Louisiana). Several state public defender commissions already perform monitoring functions into which changed-science notifications could be incorporated.
241. Mich. Comp. Laws Ann. § 780.989(f) (West Supp. 2014) (establishing the state's indigent defense commission's authority to create procedures for mandatory collection of data).
242. Mont. Code Ann. § 47-1-105(9)(f) (2013) (requiring the state public defender commission to include in its reports to state bodies information about new cases).
243. N.D. Cent. Code § 54-61-02(1)(d) (2014) (requiring the state commission on legal counsel for indigents to establish a means of monitoring caseloads).
244. Tex. Forensic Sci. Comm'n & Tex. Criminal Justice Integrity Unit, Defendant Notification After Major Forensic Nonconformance, at 5 (2013).