Judicial Responses to Shifting Scientific Opinion and Newly Discovered Evidence Rules in the United States: The Influence of Finality and Legal Process Theory

There has been a historical availability of new trials based on newly discovered evidence in the United States. At present, the standards for granting relief based upon newly discovered evidence typically involve some combination of showings that (1) the new evidence could not have been discovered prior to trial; (2) the petitioner has exercised reasonable diligence in raising the new evidence; (3) the new evidence is relevant and beyond mere impeachment; and (4) the new evidence has verdict changing capacity. In 2009, the National Academy of Sciences officially criticized the accuracy of many forensic identification methods. Subsequently, petitioners have argued this criticism is newly discovered evidence. Appellate courts, however, routinely reject such claims. In doing so, the courts show fidelity to procedural fairness, finality and predictability, and consequently sideline competing ideals of substantive accuracy. By signalling that procedural regularity legitimizes decisions, the courts are applying classic tenets of legal process theory. This paper critically explores the institutional competence of appellate courts to address the legal questions that flow from the scientific uncertainty documented by the Academy. It concludes that courts are neither giving sufficient deference to shifting scientific opinion nor fully acknowledging their own constitutional position for addressing scientific uncertainty.