Critical thinking of any kind is never universal in any individual; everyone is subject to episodes of undisciplined or irrational thought. Its quality is therefore typically a matter of degree and dependent on, among other things, the quality and depth of experience in a given domain of thinking or with respect to a particular class of questions. No one is a critical thinker through-and-through, but only to such-and-such a degree, with such-and-such insights and blind spots, subject to such-and-such tendencies towards self-delusion. For this reason, the development of critical thinking skills and dispositions is a life-long endeavor.
This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, the authors argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny and propose the adoption of pretrial civil discovery and disclosure rules in criminal proceedings to halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions.