This Article explains how courts have skirted the reliability problem of FCM evidence and argues that judges perceive the question of FCM evidence to be a simple problem that cross-examination can solve. Relying on insights from cognitive science to help explain the resistance of the courts to FCM evidence challenges, the Article urges courts to recognize the complexity of FCM evidence and refocus on the danger such evidence poses for continued wrongful conviction. By framing the admissibility of FCM evidence as an “easy” question, courts are relying on heuristics—that is, shortcuts—to solve complex problems. As this Article explains, using heuristics can lead to more error-prone decisions, as such shortcuts are vulnerable to various cognitive biases and systemic fallacies. In both reasoning and language, courts exhibit biased-affected decision-making. Part I of the Article briefly reviews the NRC report and the PCAST report while Part II discusses cases addressing FCM evidence. The cognitive science that may explain the courts’ consistent approaches to the evidence is considered in Part III. Part III then applies these concepts to judicial decision-making related to FCM evidence—a complicated problem in need of greater analysis.


Law; Criminal Law; Evidence; Courts; Judges