Challenging Science: Courts Move Toward More Careful Regulation of Forensic Evidence

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As forensic evidence such as DNA, fingerprints and hair samples becomes an important element in criminal cases, the Supreme Court and lower courts are increasingly applying constitutional protections to regulate the use of forensics in trials, according to a study forthcoming in the Washington & Lee Law Review.  In what the study calls a “remarkable shift,”  courts have “strengthened obligations of defense counsel” to challenge how such evidence is used and analyzed, and to underscore its limitations, writes Brandon Garrett, a professor at the University of Virginia School of Law in an article titled “The Constitutional Evidence of Forensic Evidence.”

“Forensic science has experienced a decade or more of crisis, with high-profile wrongful convictions due to flawed forensics, ongoing scandals and large-scale audits of scores of crime labs, and pronouncements by the scientific community that much of what passes for forensics is unscientific and must be placed on a firmer research footing,” Garrett writes.

Although the study does not cite him, this was an issue which preoccupied the late Supreme Court Justice Antonin Scalia, who died Feb. 13. In one of Justice Scalia’s rulings, he argued the limitations of forensic evidence.

According to Garrett, for many decades the Court has declined to provide due process protection against the destruction of forensic evidence or to ensure that defense counsel has access to forensic experts. But “in an era of plea bargaining, the accuracy of forensic analysis depends far less on cross-examination at trial and far more on sound lab techniques, full disclosure of strengths and limitations of forensic evidence to prosecutors and the defense, and careful litigation,” he writes.

He adds: In “As a result, the ‘expectations of the legal community have changed,’ and criminals lawyers on both sides are expected to litigate potential deficiencies in forensics.”

As a result of the added scrutiny being placed on forensic evidence, criminal defense organizations are providing more and more training on forensic issues, and the American Bar Association has released new reports on the importance of careful analysis of forensic evidence, writes Garrett. He argues that these changes should be “further cemented in professional standards,” in addition to “broad disclosure and discovery of complete files concerning forensic analysis, including bench notes and lab reports.”

Read the study HERE.

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