Although the American criminal justice system purports to put most risk of error on the prosecution, in reality the system places considerable risk of error on criminal defendants, particularly innocent defendants. This imbalance begins at the investigation stages of criminal cases and continues at every stage of the criminal justice process. This imbalance is strengthened by cognitive biases and systemic pressures that create tunnel vision, by resource inequities, and by some rules of procedure and evidence. This article, which will be published in 38 Seton Hall Law Review, surveys the variety of ways in which the system creates such imbalance and poses risks to innocent defendants. It focuses particularly on the way we use and provide access to forensic sciences that can sometimes lead to mistaken convictions of the innocent. The article concludes with recommendations for new administrative mechanisms that go beyond traditional adversarial testing to improve the reliability of forensic science evidence.
