Constitutional Regulation of Forensic Evidence
The Constitution increasingly regulates the use of forensic evidence in criminal cases. This is a remarkable shift. In decades past, the U.S. Supreme Court declined to provide strong due process protection against destruction of forensic evidence. The Court also declined to recognize a clear due process right to obtain independent defense access to experts. The Court more recently declined to recognize a freestanding non-procedural due process right to post-conviction DNA evidence. The Court in Maryland v. King interpreted the Fourth Amendment to permit broad collection of DNA evidence from arrestees. In contrast, in recent years, the Court’s series of Confrontation Clause rulings tightened requirements to present live testimony in the courtroom. Perhaps of greater significance, I argue, the Court has strengthened the obligations of defense counsel to litigate forensics, twice underscoring in little-noticed opinions that: “Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” In this Essay, I describe how despite decades of missed opportunities to adequately regulate forensics, in recent rulings the Supreme Court and lower courts increasingly focus on sound litigation of forensics. 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. The Sixth Amendment and the Due Process Clauses are emerging as promising constitutional sources for improved regulation of forensics, including through ineffective assistance of counsel and Brady v. Maryland rulings focusing on investigations and plea bargains, as well as the general due process guarantee of a fair trial.