These reform proposals have been met with vehement criticism, most of which stem from a concern that any attempt to prohibit or regulate deceptive interrogation methods would decrease the number of confessions and convictions produced by the criminal justice system. With these concerns in mind, this article proposes a different, more moderate reform: a per se ban on the falsification of DNA evidence during police interrogations. This proposal differs from those described above in three important ways. First, the prohibition on fabricating DNA evidence does not require a change in the voluntariness test used to ascertain the admissibility of a confession. Rather, it fits within current confession law jurisprudence, allowing for easy adoption by state and federal courts, and police departments. Second, the proposal is limited to DNA evidence. It does not include other forensic evidence, such as ballistics, fingerprinting, or blood typing. Instead, it focuses on DNA because of the public perception of DNA infallibility. Finally, the proposal establishes a bright-line rule. Scholars have long complained about the ambiguity of a totality of the circumstances test, which fails to give guidance to lower courts or law enforcement officers, who arguably need it most. Instead, the proposal advocates for a complete prohibition on any interrogation technique designed to convince the suspect that the police have obtained his DNA in connection with the crime. Though more moderate than other reform proposals, it shares one significant similarity: it seeks to increase the fundamental fairness of police interrogation, and to prevent false confessions and wrongful convictions. In short, this article proposes a small step in the right direction. Part II of this article traces the development of the due process voluntariness test for admissibility of confessions, summarizing the law on confession admissibility. Part III describes current police interrogation techniques, focusing on the Reid Method and its likelihood of resulting in false confessions. Part IV turns to the influence of television on the public understanding of law, forensic science, and the use of DNA evidence in law enforcement, arguing that the so-called "CSI Effect" creates a public perception that DNA evidence is incontrovertible. Part IV concludes that the public perception of the strength of DNA evidence tips the balance of the totality of the circumstances test, such that a confession elicited based upon fabrication of DNA evidence in an interrogation cannot be seen as voluntary. Finally, Part V sets forth the proposal that confessions based on deception regarding DNA evidence be excluded, justifying the proposal under existing law and briefly considering likely criticisms.
Christine D. Salmon,
DNA Is Different:Implications of the Public Perception ofDNA Evidence on Police Interrogation Methods,
Rich. J.L. & Pub. Int.
Available at: http://scholarship.richmond.edu/jolpi/vol11/iss2/8