Draft Policy Recommendation on Discovery

NATIONAL COMMISSION ON

FORENSIC SCIENCE

PRETRIAL DISCOVERY IN FORENSIC EVIDENCE CASES

POLICY RECOMMENDATION

1. Pretrial disclosure of forensic evidence should be comprehensive and

reciprocal — subject to the U.S. Constitution and the law of privilege. The

prosecution’s disclosure obligation should apply whether or not the information

will be used at trial. The defense obligation should apply to evidence that is

intended for use at trial, including the opinions of testifying experts who have not

performed any testing.

2. The results of all forensic examinations and all expert opinions should

be recorded; oral reports should be reduced to writing. The results of

examinations and expert opinions should be recorded at the time the examination

is conducted or an opinion is formed — or promptly thereafter.

3. The results of all forensic examinations, expert opinions, and related

case documents (e.g., bench notes, graphs, electropherograms, calibration reports,

etc.) should be subject to disclosure.

4. An expert witness’s qualifications should be subject to disclosure,

including a list of publications authored and a list of recent cases in which the

witness testified as an expert at trial.

5. Disclosure should be timely, although all items need not be disclosed at

the same time:

a. Disclosure of initial laboratory reports should occur as soon as

The opinions of consulting experts are not subject to disclosure due to

constitutional protections. Moreover, the attorney-client privilege and work product doctrine may

foreclose discovery of certain material.

For example: FED. R. CIV. P. 26(a)(2)(B) (“the witness’s qualifications,

including a list of all publications authored in the previous 10 years”; “a list of all other cases in

which, during the previous 4 years, the witness testified as an expert at trial or by deposition”).

[One subcommittee member believes this requirement may be too onerous.]

practicable after completion of the examination so that counsel has sufficient time

to consult with an expert — which may require applying for funds to retain an

expert — and to permit retesting.

b. Disclosure of all other items should occur as requested and no

later than 90 days before the scheduled trial date.

6. There should be a continuing duty to disclose throughout the trial until

sentencing. For exculpatory evidence, the duty to disclose should apply after

sentencing.

7. Information, such as laboratory testing protocols, quality assurance

procedures, accreditation and audit reports, proficiency testing results, and

internal validation studies, should be readily accessible — preferably by posting

on the internet or electronically upon request.

8. Forensic evidence should be preserved both before and after trial —

until appeals are exhausted and sentences served. Jurisdictions should promulgate

procedures concerning the preservation and retention of evidence.

Evidence

should not be unnecessarily consumed during testing, and consumptive testing

should not be done without notice to the defense if a defendant has been charged.

9. The defense has the right to inspect and retest forensic evidence that is

under the custody or control of the prosecution. The prosecution has the right to

inspect and retest forensic evidence that is under the custody or control of the

defense and that the defense intends to use at trial.

DIRECTIVE RECOMMENDATIONS

1. The Attorney General should direct federal prosecutors, forensic

laboratories within the Department of Justice, and laboratories under contract with

the Department of Justice to follow the policies outlined above that are applicable

to their duties.

2. The Attorney General should recommend amendments to the

Federal Rules of Criminal Procedure that are consistent with the above policies.

For example: FED. R. CIV. P. 26(a)(2)(D) (“at least 90 days before the date set

for trial or for the case to be ready for trial”).

See ABA MODEL RULES OF PROF’L CONDUCT, R. 3.8(9) (discussing prosecutor’s

obligation when he or she learns of credible and material evidence of innocence after trial).

The regulations will need to take account of bulk items and situations in which

representative samples are sufficient. See ABA S

TANDARDS FOR CRIMINAL JUSTICE, DNA

VIDENCE § 16-2.6 (b) (3d ed. 2007).

3. The Attorney General should request that the Organization for

Scientific Area Committees (OSAC) consider these policies in their best practices

and standards development.

4. The Attorney General should ask other jurisdictions to consider

adopting the policies outlined above.

BACKGROUND

Discovery requires adversaries in litigation to exchange certain categories

of information before trial. Discovery procedures were introduced in civil

litigation in the 1930s. This reform effort was based on a belief that justice would

be better served if “trials by ambush” were avoided. Moreover, once both sides

had a better understanding of the evidence, the chances for a settlement were

thought to increase.

The same policies should apply in criminal cases. According to President

Bush’s DNA Initiative, “[e]arly disclosure can have the following benefits: [1]

Avoiding surprise and unnecessary delay. [2] Identifying the need for defense

expert services. [3] Facilitating exoneration of the innocent and encouraging plea

negotiations if DNA evidence confirms guilt.”

The first part of this document addresses general considerations relating to

pretrial disclosure, such as the policy arguments supporting comprehensive

discovery, the timing of discovery, prosecutorial discovery, etc. The second part

examines different types of discoverable materials such as reports, bench notes,

etc. The last part discusses the Brady rule, which concerns the disclosure of

exculpatory evidence.

I. GENERAL CONSIDERATIONS

A. Need for Discovery

The need for pretrial discovery of forensic evidence in criminal cases is

critical. “[E]xpert witnesses are almost impossible to cross-examine and expert

testimony almost impossible to rebut without intensive pretrial preparation.”

advisory note to the federal discovery rule echoed this view: “[I]t is difficult to

PRESIDENT BUSH’S DNA INITIATIVE: PRINCIPLES OF FORENSIC DNA FOR

OFFICERS OF THE COURT.

Rezneck, The New Federal Rules of Criminal Procedure, 54 GEO. L.J. 1276,

1278 (1966).

test expert testimony at trial without advance notice and preparation.”

Moreover, the failure to disclose exculpatory forensic evidence has played

a role in many DNA exonerations.

The Earl Washington case is an example.

The State did not give the defense the report indicating Washington was

excluded by that characteristic [lack of the Transferrin CD protein].

Instead, the State gave the defense an “amended” report. Without having

done any new tests, the altered report stated that the results of the

Transferrin CD testing “were inconclusive.” The original lab repot came

to light decades later when Washington filed a civil rights lawsuit after his

exoneration

Washington came within nine days of execution.

The leading neutron activation case, United States v. Stifel,

illustrates the

dangers of restrictive discovery. Stifel was charged with sending a bomb through

the mail. The bomb exploded and killed a victim after delivery. The

prosecution’s evidence included the results of neutron activation analysis, which

was used to compare bomb debris (vinyl tape, metal cap, cardboard mailing tube,

and paper gummed label) and similar items obtained from Stifel’s place of

employment. The prosecution expert testified that the metal cap and tape were

“of the same manufacture” and from the “same batch” — one day’s

manufacturing production.

This testimony “depends on the existence of

sufficient background information.”

Stifel was convicted, and his conviction

See FED. R. CRIM. P. 16 (1975), advisory committee’s note reprinted at 62

F.R.D. 312 (1974). See also Commentary, ABA S

TANDARDS RELATING TO DISCOVERY AND

PROCEDURE BEFORE TRIAL 67 (Approved Draft 1970) (“The need for full and fair disclosure is

especially apparent with respect to scientific proof and the testimony of experts.”).

Some of these cases, such as the Rolando Cruz and Roy Brown cases are

discussed below. See Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony

and Wrongful Convictions, 95 V

A. L. REV. 1, 47 (2009) (discussing cases of Curtis McCarthy, Earl

Washington, Williams Gregory, Lafonso Rollins, Kenneth Waters).

Brandon L. Garrett, CONVICTING THE INNOCENT: WHERE CRIMINAL

PROSECUTIONS GO WRONG 108 (2011) (discussing John Willis case). See also MARGARET EDDS,

N EXPENDABLE MAN, THE NEAR-EXECUTION OF EARL WASHINGTON JR. (2003) (examining the

Washington case); Eric M. Freedman, Earl Washington’s Ordeal, 29 H

OFSTRA L. REV. 1098

(2001); Paul C. Giannelli,.Wrongful Convictions and Forensic Science: The Need to Regulate

Crime Labs, 86 N.C. L. R

EV. 163 (2007).

433 F.2d 431 (6th Cir. 1970).

Id. at 436.

Dennis S. Karjala, The Evidentiary Uses of Neutron Activation Analysis, 59

AL. L. REV. 997, 1014 (1971): “No comprehensive background studies have been published on

any of the materials involved in this case. . . . The Sixth Circuit opinion does not say whether the

upheld on appeal. During his imprisonment, Stifel filed a request under the

Freedom of Information Act (FOIA), which revealed several things, including

discrepancies about the background tests on the vinyl tape.

As a result, Stifel

filed a post-conviction petition, alleging a due process violation — the failure to

disclose exculpatory evidence. The district court disagreed that the expert had

misrepresented the facts on this issue, but noted the misleading character of this

information in overturning the conviction.

In short, Stifel was entitled, through

FOIA, to more information about the prosecution’s case after he was convicted

than he was entitled to when preparing for his trial.

This material would have

been discoverable in a civil trial.

B. Constitutional Considerations

In addition to the policy reasons supporting discovery, a defendant’s rights

to confrontation,

effective assistance of counsel,

and due process often turn on

pretrial disclosure. As the Supreme Court has noted, due process “speak[s] to the

balance of forces between the accused and his accuser.”

One commentator

remarked that “the inequality of investigative resources between prosecution and

defense is likely to have its maximum impact in the presentation of evidence

which must be analyzed and developed in the laboratory or hospital.”

Hence,

pretrial discovery “lessen[s] the imbalance which may result from the State’s early

and complete investigation in contrast to [defendant’s] . . . late and limited

investigation.”

expert attempted to substantiate his claims with purported background studies carried out in

government laboratories, but the available evidence indicates that such studies should in any event

be regarded with suspicion.” The experts were also criticized: “[F]ew experts have used

appropriate care in limiting their testimony . . . .” Id. at 1024.

United States v. Stifel, 594 F. Supp. 1525 (N.D. Ohio 1984). The FOIA request

also disclosed the existence of another suspect.

“[H]ad the defense known of the November 1968 tests performed by Scott on

tape obtained from Plymouth Rubber Company, it could have used this evidence to further

impeach the credibility of Scott’s scientific methods.” Id. at 1543.

After his release, Stifel went to law school and became an attorney.

The Supreme Court’s recent confrontation jurisprudence makes pretrial

disclosure of the basis of expert testimony critical. See Williams v. Illinois, 132 S. Ct. 2221

(2013).

In a recent case concerning ineffective assistance of counsel, the Supreme Court

wrote: “Criminal cases will arise where the only reasonable and available defense strategy requires

consultation with experts or introduction of expert evidence.” Harrington v. Richter, 131 S. Ct.

770, 788 (2011). See also Hinton v. Alabama, 134 S. Ct. 1081 (2014) (finding counsel ineffective

for failing to understand how to retain a defense expert).

Wardius v. Oregon, 412 U.S. 470, 474 (1973).

Rezneck, supra note 7, at 1278.

State v. Cook, 206 A.2d 359, 363 (N.J. 1965).

C. Evidentiary Considerations

Finally, Rule 705 of the Federal Rules of Evidence presupposes

comprehensive discovery.

The rule provides: “Unless the court orders

otherwise, an expert may state an opinion — and give the reasons for it — without

first testifying to the underlying facts or data. But the expert may be required to

disclose those facts or data on cross-examination.” According to the drafters,

Rule 705 “assumes that the cross-examiner has the advance knowledge which is

essential for effective cross-examination. . . . Rule 26(b)(4) of the Rules of Civil

Procedure, as revised, provides for substantial discovery in this area, obviating in

large measure the obstacles which have been raised in some instances to discovery

of findings, underlying data, and even the identity of the experts.”

Unfortunately, as explained below, there is no “substantial discovery” in criminal

cases.

D. Civil vs Criminal Litigation

Discovery in civil cases is far more comprehensive than in criminal

litigation. This is somewhat surprising because “the policy of avoiding trial by

ambush or surprise has even greater application in the criminal context, where the

stakes are much higher and the obligation of the State to see that justice is done is

much greater than that of the private litigants in a civil dispute.”

In civil cases, discovery includes (1) automatic identification of expert

witnesses, (2) their qualifications, (3) comprehensive written reports, and (4)

special deposition procedures for experts.

In contrast, unsupported conclusory

reports are permitted in criminal cases — i.e., those that “summariz[e] the results

of an unidentified test conducted by an anonymous technician.”

Moreover, only

a few states authorize discovery depositions in criminal litigation. Depositions in

criminal cases are typically limited to the preservation of testimony.

Thus,

counsel may depose their own witnesses if that witness may be unavailable at

trial, but counsel may not depose the other party’s witnesses.

Over forty jurisdictions have adopted evidentiary rules based on the Federal

Rules of Evidence.

FED. R. EVID. 705 advisory committees note (1975).

Comprehensive pretrial discovery may also serve a quality assurance function.

Experts, like most people, may be more conscientious if they know that their work will be critically

reviewed.

Scipio v. State, 928 So. 2d 1138, 1145 (Fla. 2006).

FED. R. CIV. P. 26. See infra Appendices A & B.

United States v. Bentley, 875 F.2d 1114, 1123 (5th Cir. 1989) (dissenting

opinion) (hospital report on urine test revealing presence of cannabinoids).

See FED. R. CRIM. P. 15.

The disparity between discovery rules in civil and criminal actions is not

based on science. As one court put it, “there are no scientific grounds for

withholding information in the discovery process.”

A National Academy of

Sciences DNA report recommended extensive discovery: “All data and laboratory

records generated by analysis of DNA samples should be made freely available to

all parties. Such access is essential for evaluating the analysis.”

The report goes

on to state that “[t]he prosecutor has a strong responsibility to reveal fully to

defense counsel and experts retained by the defendant all material that might be

necessary in evaluating the evidence.”

E. Arguments Against Defense Discovery

Opponents of liberal discovery in criminal cases have argued that

discovery will (1) encourage perjury, (2) lead to the intimidation of witnesses,

and, (3) be a one-way street because of the Fifth Amendment privilege against

self-incrimination.

With forensic evidence, however, these traditional

arguments against criminal discovery lose whatever force they might otherwise

have.

The first argument fails because “it is virtually impossible for evidence or

information of this kind to be distorted or misused because of its advance

disclosure.”

Also, there is no evidence that the intimidation of experts is a major

problem, perhaps because the evidence can often be re-examined by another

expert.

Finally, the Self-incrimination Clause, as presently interpreted by the

Supreme Court, presents little impediment to reciprocal prosecution discovery of

State v. Tankersley, 956 P.2d 486, 495 (Ariz. 1998).

NATIONAL RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE 146

(1992); see also id. at 105 (“Case records – such as notes, worksheets, autoradiographs, and

population databanks – and other data or records that support examiners’ conclusions are prepared,

retained by the laboratory, and made available for inspection on court order after review of the

reasonableness of a request.”); N

ATIONAL RESEARCH COUNCIL, THE EVALUATION OF FORENSIC

DNA EVIDENCE 167-69 (1996) (“Certainly, there are no strictly scientific justifications for

withholding information in the discovery process, and in Chapter 3 we discussed the importance of

full, written documentation of all aspects of DNA laboratory operations. Such documentation

would facilitate technical review of laboratory work, both within the laboratory and by outside

experts . . . .”).

Id. at 146.

2 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 252, at 36-37 (2d ed. 1982).

Commentary, ABA STANDARDS FOR CRIMINAL JUSTICE, DISCOVERY AND

PROCEDURE BEFORE TRIAL 67 (Approved Draft 1970).

2 WAYNE LAFAVE & JEROD ISRAEL, CRIMINAL PROCEDURE § 19.3, at 490 (1984)

(“Once the report is prepared, the scientific expert’s position is not readily influenced, and

therefore disclosure presents little danger of prompting perjury or intimidation.”).

scientific proof — as discussed the next section.

F. Prosecution Discovery

The policy reasons for defense discovery also apply to the prosecution.

Prosecution discovery of expert reports and inspection of tangible objects is

widely sanctioned. In some jurisdictions, prosecution discovery is permitted only

if the defense first seeks discovery from the prosecution (i.e., reciprocal

discovery).

In other jurisdictions, prosecution discovery is not conditioned on

defense discovery.

1. Self-Incrimination Clause

The Supreme Court addressed the constitutionality of prosecution

discovery in Williams v. Florida,

which involved a state statute requiring the

defense to notify the prosecution of its intention to offer an alibi defense and to

provide the names of its alibi witnesses. The defendant argued that the statute

violated the Self-incrimination Clause. Rejecting this argument, the Court found

that the statute did not amount to “compulsion” within the meaning of the Fifth

Amendment: “At most, the rule only compelled petitioner to accelerate the timing

of his disclosure, forcing him to divulge at an earlier date information that the

petitioner from the beginning planned to divulge at trial.”

The “accelerated discovery” rationale applies to prosecution discovery of

forensic reports that the defense intends to introduce at trial but not to reports

prepared by experts who will not be witnesses (i.e., consulting experts). In

Binegar v. Eighth Judicial District Court,

the Nevada Supreme Court ruled that

a discovery statute violated the Fifth Amendment because it had “a greater effect

than simply compelling the defendant to accelerate the timing of disclosures that

the defendant intended to divulge at trial … . Under [one provision], the defendant

would be forced to disclose witness statements and the results or reports of mental

and physical examinations and scientific tests or experiments, even if the

See discussion of prosecution discovery infra.

Federal Rule 16 is an example. See also Del. Super. Ct. Crim. R. 16(b); Fla. R.

Crim. P. 3.220(d)(2)(ii); Iowa R. Crim. P. § 2.14(2); N.J. R. Crim. P. 3.13-3(b); N.D. R. Crim. P.

16(b); R.I. Super. Ct. Crim. R. 16(b); Tenn. R. Crim. P. 16(b)(1); Va. S. Ct. R. 3A:11©; Wyo. R.

Crim. P. 18(d).

E.g., Alaska R. Crim. P. 16(b); Me. R. Crim. P. 16A© & (d); Minn. R. Crim. P.

9.02; Mo. R. Crim. P. 25.05(A)(1); N.M. R. Crim. P. 5-502(a) (mandatory); Or. Rev. Stat. §

135.835(2); Wash. Super. Ct. Crim. R. 4.7(g).

399 U.S. 78 (1970).

Id. at 85.

915 P.2d 889 (Nev. 1996).

defendant never intended to introduce the statements or materials at trial.”

There is a second ground for rejecting a Fifth Amendment challenge. The

Self-incrimination Clause prohibits only compulsion directed at the suspect.

According to the Supreme Court, “the Fifth Amendment privilege against

self-incrimination, being personal to the defendant, does not extend to the

testimony or statements of third parties called as witnesses at trial.”

Accordingly, compelling defense counsel to reveal forensic reports would not

necessarily violate the privilege.

2. Due Process Clause

The Supreme Court left several issues unresolved in Williams. The

discovery statute in that case provided for liberal defense discovery, and the Court

indicated that a due process issue would have been presented if reciprocal defense

discovery had not been provided. In Wardius v. Oregon,

which also involved a

notice of alibi rule, the Court confronted this issue. Because the statute in

Wardius made no provision for reciprocal defense discovery, the Court found a

due process violation: “[T]he Due Process Clause of the Fourteenth Amendment

forbids enforcement of alibi rules unless reciprocal discovery rights are given to

criminal defendants.”

In short, due process precludes prosecution discovery of

forensic reports and evidence in the absence of reciprocal defense discovery.

* * * * *

Id. at 894. Some state courts reject the Williams rationale as a matter of state

constitutional law. See Scott v. State, 519 P.2d 774, 785 (Alaska 1974); State v. Summerville, 948

P.2d 469 (Alaska 1997) (reaffirming Scott).

United States v. Nobles, 422 U.S. 225, 234 (1975) (compelled production of

defense investigator’s notes does not violate fifth amendment because it involved no compulsion of

the defendant); Gipson v. State, 609 P.2d 1038, 1044 (Alaska 1980) (compelled disclosure of

defense firearm expert’s report does not violate the fifth amendment); Izazaga v. Superior Court,

815 P.2d 304 (Cal. 1991).

See 5 W. LAFAVE ET AL., CRIMINAL PROCEDURE § 20.4(b), at 450-51 (3d ed.

2007) (“Self-incrimination objections to disclosure of scientific reports have uniformly been

rejected on the ground that ‘no disclosure of any kind, by defendant, is involved in this issue.’”).

412 U.S. 470 (1973).

Id. at 472.

See Grey v. State, 178 P.3d 154, 160 (Nev. 2008) (“[T]o the extent that NRS

174.234(2) imposes such a nonreciprocal burden of disclosure [regarding defense experts] on a

criminal defendant, it is unconstitutional under the United States Constitution and the Nevada

Constitution … . The State may not insist that trials be run as a ‘search for truth’ so far as defense

witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses. It is

fundamentally unfair to require a defendant to divulge the details of his own case while at the same

time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence

which he disclosed to the State.”).

In sum, there is neither a legal nor policy reason to prevent prosecution

discovery of the forensic reports and opinions of defense experts who will testify

at trial. Federal Rule of Criminal Procedure 16(b)(1)© requires a summary of

defense witness testimony if the defense seeks a summary of prosecution experts’s

testimony. Defense experts who will not testify are typically exempt from

discovery; the constitutional right to effective assistance of counsel (Sixth

Amendment), the attorney-client privilege, and the work-product doctrine are the

bases for this exemption.

G. Timeliness of Discovery

To be useful, disclosure must occur sufficiently before trial for counsel to

have adequate time for preparation. For example, in one case the Eighth Circuit

observed: “The government not only produced the DNA evidence a month late,

but it did so almost literally on the eve of trial, making it virtually impossible,

absent a continuance, for defendants to evaluate and confront the evidence against

them. DNA evidence is scientific and highly technical in nature; it would have

required thorough investigation by defense counsel, including almost certainly

retaining an expert witness or witnesses.”

However, all discoverable material need not be provided at one time.

Defense counsel needs some information, such as initial laboratory reports, as

early as possible in order to consult with an expert. Because the overwhelming

majority of defendants are indigent, counsel may need time to file an application

for funds to retain an expert. In contrast, disclosure of other material may often be

postponed or never requested if plea negotiations commence. Federal Civil Rule

26 makes a distinction between “initial disclosure” and subsequent disclosure.

H. Continuing Duty to Disclose

Federal Rule of Criminal Procedure 16 recognizes a “continuing duty to

disclose” forensic reports if, prior to or during trial, new reports are prepared.

United States v. Kelly,

neutron activation tests were conducted after the trial

court ordered discovery of forensic reports. The defense, however, was not

informed of the tests until trial. After recognizing the prosecution’s continuing

duty to disclose the tests results, the Second Circuit wrote: “The course of the

United States v. Davis, 244 F.3d 666, 671 (8th Cir. 2001). See also Miller v.

State 809 P.2d 1317, 1319-20 (Okla. Crim. App. 1991) (“[I]t was approximately two weeks after

the deadline ordered by Judge Owens that Ms. Gilchrist mailed the hair evidence to the appellant’s

expert. Thus, appellant's expert received the evidence six and one-half days before trial began.”).

FED. R. CRIM. P. 16(c).

420 F.2d 26 (2d Cir. 1969).

government smacks too much of a trial by ambush, in violation of the spirit of the

rules. A new trial is required, with a fair opportunity for the defense to run its

own neutron activation tests of the material . . . .”

In Scipio v. State,

a medical examiner investigator realized that he had

been mistaken in his deposition testimony, but this information was not given to

defense prior to the trial. The court held that the State “had an obligation to

disclose any material change in that statement.”

II. TYPES OF DISCOVERABLE MATERIAL

A. Oral Reports

Most jurisdictions make forensic reports discoverable but many do not

make preparing a report mandatory. Roy Brown spent fifteen years in prison for

murder before he was exonerated by DNA evidence.

The case rested largely on

bite marks on the victim’s body, which a local dentist testified matched Brown’s

teeth.

Unbeknownst to the defense, a forensic odontologist had analyzed the bite

marks on the victim and concluded that the one mark he could interpret excluded

Brown as the source of the mark. The prosecutor, however, “never asked [the

odontologist] to file an official report . . .. Instead, the prosecutors relied on

another expert, a local dentist, whose testimony helped convict Mr. Brown.”

Only later did the opinion of the forensic odontologist come to light.

At one time, oral reports were not discoverable under Criminal Rule 16.

As a result, the defendant in United States v. Shue

was not entitled to the verbal

report of an FBI photographic expert who compared pictures of Shue with those

of a bank robber. The expert made the comparison the night before he testified —

Id. at 29. See also United States v. Barrett, 703 F.2d 1076, 1080–81 (9th Cir.

1983); United States v. Boney, 572 F.2d 397, 403 (2d Cir. 1978) (drug report); United States v.

Bockius, 564 F.2d 1193, 1197–98 (5th Cir. 1977) (polarimeter test); State v. Wilson, 507 N.E.2d

1109, 1110–12 (Ohio 1987) (failure to update NAA report resulted in “trial by ambush”); Acevedo

v. State, 467 So. 2d 220, 224 (Miss. 1985) (state violated continuing duty to disclose regarding

gunshot residue test).

928 So. 2d 1138 (Fla. 2006).

Id. at 1142. Florida is one of few states that permit discovery depositions.

See People v. Brown, 600 N.Y.S.2d 593 (A.D. 1993) (upholding conviction).

The odontologist’s opinion could also be characterized as Brady material. See infra.

Fernanda Santos, Evidence from Bite Marks, It Turns Out, Is Not so Elementary,

N.Y. T

IMES, Jan. 28, 2007, at WK4.

Fernanda Santos, With DNA From Exhumed Body, Man Is Finally Free, N.Y.

IMES, Jan. 24, 2007, at A21.

766 F.2d 1122, 1135 (7th Cir. 1985).

without the defense’s knowledge. Similarly, a police officer in United States v.

Johnson

testified as an Emergency Medical Technician without notice to the

defense. Although the defense argued that the testimony was “highly prejudicial”

because it contradicted an important aspect of the defense case, the Eleventh

Circuit merely noted that there is no right to a witness list and Rule 16 was not

implicated because “no . . . reports were made in this case.”

This omission was

rectified in federal practice with an amendment to Rule 16, which now requires a

summary of an expert’s testimony.

Most states have not adopted a comparable

provision.

B. Forensic Reports

Although virtually all jurisdictions make laboratory reports discoverable,

the contents of the reports are not specified. Melendez-Diaz v. Massachusetts,

recent Supreme Court case, illustrates this problem. The laboratory report in that

case “contained only the bare-bones statement that ‘[t]he substance was found to

contain: Cocaine.’ At the time of trial, petitioner did not know what tests the

analysts performed, whether those tests were routine, and whether interpreting

their results required the exercise of judgment or the use of skills that the analysts

may not have possessed.”

The 2009 NAS report made similar comments:

“Some reports contain only identifying and agency information, a brief description

of the evidence being submitted, a brief description of the types of analysis

requested, and a short statement of the results (e.g., ‘the greenish, brown plant

material in item #1 was identified as marijuana’), and they include no mention of

methods or any discussion of measurement uncertainties.”

In 1989, the Journal of Forensic Sciences, the official publication of the

American Academy of Forensic Sciences, published a symposium on the ethical

responsibilities of forensic scientists. One article described a number of

unacceptable laboratory reporting practices, including (1) “preparation of reports

containing minimal information in order not to give the ‘other side’ ammunition

for cross-examination,” (2) “reporting of findings without an interpretation on the

assumption that if an interpretation is required it can be provided from the witness

box,” and (3) “[o]mitting some significant point from a report to trap an

713 F.2d 654 (11th Cir. 1983).

Id. at 659.

FED. R. CRIM. P. 16(a)(1)(G).

129 S. Ct. 2527 (2009).

Id. at 2537. A laboratory report stating that a seized substance is “Heroin HCl”

is not very informative. United States v. Parker, 491 F.2d 517, 525 (8th Cir.1973) (Bureau of

Narcotics and Dangerous Drugs lab report).

NATIONAL RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE

UNITED STATES: THE PATH FORWARD 21 (2009).

unsuspecting cross-examiner.”

All of these practices undermine the purpose of

pretrial discovery.

1. Ultimate Conclusions

Along with information specifying the procedure used in the analysis, the

report should set forth the expert’s ultimate conclusions as well as specific test

results. For example, in Pierce v. State,

the prosecution expert conducted

serological tests on body fluids in a rape case. Her report, which was turned over

to the defense, contained specific test results but not her conclusion — that the

rapist was a non-secretor. On appeal, the court ruled the report sufficient: “An

expert’s opinion of the conclusions which can be drawn from test results in a

particular case in no way alters the actual facts of the case. Accordingly, the

ultimate opinion of the expert is not necessary for either the preparation or the

presentation of the defense.”

This approach undermines the purpose of

discovery. Civil Rule 26 requires disclosure of “a complete statement of all

opinions.”

Similarly, a federal court wrote that Rule 16 entitles the accused to the lab

report but not to a “comprehensive preview of the government’s [expert] opinion

testimony.”

This problem was rectified somewhat in the federal system when

the “summary” provision was added to Rule 16 — a provision that most states do

not have.

2. Limitations of the Analysis

The report should contain an express statement of the limitations of the

technique. The 2004 NAS report on bullet lead noted:

The conclusions in laboratory reports should be expanded to include the

limitations of compositional analysis of bullet lead evidence. In particular,

Douglas M. Lucas, The Ethical Responsibilities of the Forensic Scientist:

Exploring the Limits, 34 J. F

ORENSIC SCI. 719, 724 (1989). Lucas was the Director, The Centre of

Forensic Sciences, Ministry of the Solicitor General, Toronto, Ontario. As one scientist has

observed: “For a report from a crime laboratory to be deemed competent, I think most scientists

would require it to contain a minimum of three elements: (a) a description of the analytical

techniques used in the test requested by the government or other party, (b) the quantitative or

qualitative results with any appropriate qualifications concerning the degree of certainty

surrounding them, and (c) an explanation of any necessary presumptions or inferences that were

needed to reach the conclusions.” Professor Anna Harrison, Mount Holyoke College, Symposium

on Science and The Rules of Legal Procedure, 101 F.R.D. 599, 632 (1984).

786 P.2d 1255 (Okl. Crim. 1990).

Id. at 1263.

United States v. Cole, 707 F. Supp. 999, 1004 (N.D. Ill. 1989).

a further explanatory comment should accompany the laboratory

conclusions to portray the limitations of the evidence. . . . Finally,

measurement data (means and standard deviations) for all of the crime

scene bullets and those deemed to match should be included.

The 2009 NAS forensic science report also addressed this issue: Reports

“must include clear characterizations of the limitations of the analyses, including

measures of uncertainty in reported results and associated estimated probabilities

where possible.”

3. Comprehensible Reports

The 2004 NAS bullet lead report also recommended that “a section of the

laboratory report translating the technical conclusions into language that a jury

could understand would greatly facilitate the proper use of this evidence in the

criminal justice system.”

The ABA Standards on DNA contain a comparable

provision. The commentary to Standard 16-3.3 explains:

This Standard requires that a section of the laboratory report

translate the scientific result into language that a nonscientist would

understand. The purpose of forensic DNA testing is to assist the criminal

justice system in fulfilling its function to convict the guilty and exonerate

the innocent. Accordingly, participants in the system need to understand

the significance of the test results. Overworked prosecutors and defense

attorneys do not always have time to sort through data in order to

appreciate the probative value of the lab analysis. They will, in any case,

find a comprehensible summary useful in consulting with and questioning

persons with greater expertise than they possess. Jurors may also welcome

a written summary that they can understand without “translation” by an

expert. Nobody is in a better position to summarize the results for the

participants than the examiners themselves.

C. Bench Notes & Related Documents

The lack of bench notes is often cited in laboratory scandals. The West

NATIONAL RESEARCH COUNCIL, FORENSIC ANALYSIS: WEIGHING BULLET LEAD

EVIDENCE 110-11 (2004).

NRC FORENSIC SCIENCE REPORT, supra note 62, at 21-22.

WEIGHING BULLET LEAD EVIDENCE, supra note 67, at 110-11.

DNA STANDARDS, supra note 5, at § 16-3.3(c) cmt. at 75.

Virginia,

Chicago,

Houston,

and FBI explosive unit

investigations all found

inadequate documentation in forensic case files. Moreover, in one Supreme Court

case, Delaware v. Fensterer,

an analyst testified that he could not remember

which of three methods he had used to determine that hair found at a murder

scene had been forcibly removed. He apparently neglected to record this critical

information.

1. Contemporaneous Recording

DNA Advisory Board Standards require laboratories to adopt and follow

written procedures for taking and maintaining case notes to support the

conclusions drawn in laboratory reports — in particular, a case record containing

all documentation generated by examiners relating to case analysis is standard

See In re Investigation of the W. Va. State Police Crime Lab., Serology Div.,

438 S.E.2d 501, 508 (W. Va. 1993) ((1) reporting that multiple items had been tested, when only a

single item had been tested; (2) reporting inconclusive results as conclusive; (3) repeatedly altering

laboratory records; (4) grouping results to create the erroneous impression that genetic markers

had been obtained from all samples tested; (5) failing to report conflicting results); Walter F.

Rowe, Commentary, in E

DWARD CONNORS ET AL., CONVICTED BY JURIES, EXONERATED BY

SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL

xvii-xviii (1996) (“It is also clear that in case after case, defense counsel failed to review the case

notes of the prosecution’s forensic serologists. Even a layperson would have seen the Fred Zains’s

written reports and sworn testimony were contradicted by his case notes.”).

See Letter from Professor George F. Sensabaugh, University of California at

Berkeley, Oct. 16, 2003 (“Overall, the documentation of the lab work as described in the three

pages of lab notes is inadequate and incomplete. Moreover, the formal lab reports described

results of testing for which there is no record in the lab notes. In short, the documentation in this

case falls short of accepted scientific standards.”).

See THIRD REPORT OF THE INDEPENDENT INVESTIGATOR FOR THE HOUSTON

POLICE DEP’T CRIME LABORATORY AND PROPERTY ROOM 28 (June 30, 2005) (“Among other

problems it identified, the 2002 DPS audit found that no such written procedures [for case notes

and lab reports] existed and identified numerous deficiencies in the documentation contained in the

lab reports.”).

See OFFICE OF INSPECTOR GENERAL, U.S. DEP’T OF JUSTICE, THE FBI

ABORATORY: AN INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN

EXPLOSIVES-RELATED AND OTHER CASES (April 1997) (recommending the preparation of adequate

case files to support reports; “The Rudolph files and some of Martz’s work underscore the

importance of case files containing all the documentation necessary for another appropriately

qualified examiner to be able to understand and replicate the examiners’s data and analysis. We

encountered the problem of incomplete or missing documentation in many case files.”).

474 U.S. 15 (1985). Nevertheless, the Supreme Court declined to find a

confrontation violation in this situation. However, on remand the Delaware Supreme Court held

the opinion inadmissible, but on evidentiary, rather than constitutional, grounds. According to the

court: “While a witness’s mere lack of memory as to a particular fact may go only to the weight of

that evidence, an expert witness’s inability to establish a sufficient basis for his opinion clearly

renders the opinion inadmissible under D.R.E. 705.” Fensterer v. State, 509 A.2d 1106, 1109-10

(Del. 1986).

practice.

However, the standards do not specify that the notes be recorded

contemporaneously with the examination, a deficiency noted in a 2004 Inspector

General Report:

[C]ontemporaneous documentation is important to ensure that the case file

accurately reflects the work performed on each evidence item that is

tested. If staff members are allowed to delay recording observations and

test results until after they have examined all the items for a case or have

completed all of their work for the day, their documentation may not be

fully accurate. Also, staff members may be unduly influenced by protocol

requirements when relying on memory, and document what they know

should have occurred when their recollection is vague.

In other words, delayed entries are subject to cognitive bias.

2. Discovery Bench Notes

Timothy Spencer was the first person executed based on DNA evidence.

Yet, when the defense sought discovery of the prosecution expert’s “work notes,”

which formed the basis of his report, the motion was denied, and the Virginia

Supreme Court upheld this ruling.

In contrast, the Minnesota Supreme Court

has recognized that “fair trial and due process rights are implicated when data

relied upon by a laboratory in performing tests are not available to the opposing

party for review and cross examination.”

D. Qualifications of Examiner

In criminal cases, the disclosure of background information about the

qualifications of the expert is often not required to be disclosed. According to one

court, “Certainly, the identity of a particular expert witness would not be of

significance.”

In contrast, Civil Rule 26 rejects this view; it requires the

following: (1) the witness’s qualifications, including a list of all publications

authored in the previous 10 years; (2) a list of all other cases in which, during the

previous 4 years, the witness testified as an expert at trial or by deposition; and (3)

DNA Advisory Board Standard 11.1 (1998).

OFFICE OF INSPECTOR GENERAL, U.S. DEP’T OF JUSTICE, AUDIT REPORT, THE

COMBINED DNA INDEX SYSTEM 107 (2001).

See Murderer Put to Death in Virginia: First U.S. Execution Based on DNA

Tests, N.Y. T

IMES, Apr. 28, 1994.

Commonwealth v. Spencer, 384 S.E.2d 785, 791 (Va. 1989).

State v. Schwartz, 447 N.W.2d 422, 427 (Minn. 1989).

United States v. Holland, 884 F.2d 354, 357 (8th Cir. 1989). See also United

States v. Krohn, 558 F.2d 390, 394 (8th Cir.1977).

a statement of the compensation to be paid for the study and testimony in the case.

An unacceptable number of experts — both prosecution and defense

witnesses — have lied about their credentials.

In one case a serologist testified

that he had a master’s degree in science, “whereas in fact he never attained a

graduate degree.”

In another case the death penalty was vacated when it was

discovered that a prosecution expert, who “had testified in many cases,” had lied

about her professional qualifications: “[S]he had never fulfilled the educational

requirements for a laboratory technician.”

E. Right to Inspect and Retest Forensic Evidence

Many jurisdictions recognize a defendant’s right to retest evidence in the

prosecution’s possession

but not all. For example, in Frias v. State,

the

defense sought to analyze independently the cocaine exhibits used by the state at

trial. The trial court refused, and the Indiana Supreme Court found no error. The

court reasoned that the defense had the opportunity to cross-examine the expert,

had access to the laboratory reports, and had raised no question about the accuracy

of the results.

Other courts impose conditions on retesting — for example,

E.g., Maddox v. Lord, 818 F.2d 1058, 1062 (2d Cir. 1987) (serologist testified

falsely about academic credentials); Kline v. State, 444 So. 2d 1102 (Fla. Dist. Ct. App. 1984)

(psychologist convicted of perjury for claiming he had a doctorate during Ted Bundy trial); People

v. Alfano, 420 N.E.2d 1114, 1116 (Ill. App. 1983) (arson expert testified falsely about his

academic credentials); State v. Elder, 433 P.2d 462 (Kan. 1967) (lab technician convicted of

perjury for misrepresenting his educational background); State v. DeFronzo, 394 N.E.2d 1027,

1030 (Ohio C.P. 1978) (lab analyst pleaded guilty to 8 counts of falsification for misstating his

academic credentials). See also Michael Saks, Prevalence and Impact of Ethical Problems in

Forensic Science, 34 J. F

ORENSIC SCI. 772 (1989) (listing other cases); James Starrs, Mountebanks

Among Forensic Scientists, in 2 F

ORENSIC SCIENCE HANDBOOK 1, 7, 20-29 ®. Saferstein ed.

1988); Annotation, Perjury or Wilfully False Testimony of Expert Witness as Basis for New Trial

on Ground of Newly Discovered Evidence, 38 A.L.R.3d 812.

Doepel v. United States, 434 A.2d 449, 460 (D.C. App. 1981).

Commonwealth v. Mount, 257 A.2d 578, 579 (Pa. 1969).

ABA STANDARDS FOR CRIMINAL JUSTICE, DISCOVERY § 11-32(b) (3d ed. 1996)

(“Upon motion, either party should be permitted to conduct evaluations or tests of physical

evidence in the possession or control of the other party which is subject to disclosure.”).

547 N.E.2d 809 (Ind. 1989).

Id. at 813. Other cases have also denied the right to retest because the

defendant’s right to cross-examine the prosecution’s experts was deemed sufficient. See People v.

Anderson, 276 N.W.2d 924, 926 (Mich. App. 1979); People v. Bell, 253 N.W.2d 726, 729 (Mich.

App. 1977); Commonwealth v. Dorsey, 405 A.2d 516, 521 (Pa. Super. 1979).

requiring a preliminary showing that a retest is “critical”

or will be “favorable.”

Cross-examination is not a substitute for retesting, and whether the results will be

favorable cannot be determined until testing.

In contrast, a number of courts have recognized that the right to retest

evidence is constitutionally based: “[F]undamental fairness is violated when a

criminal defendant . . . is denied the opportunity to have an expert of his choosing

. . . examine a piece of critical evidence whose nature is subject to varying expert

opinion.”

Retesting is a safeguard against deliberate misrepresentation — for

example, cases where a serologist “reported results of lab tests that he did not in

fact conduct”

or where a laboratory analyst represented that tests had been

performed when “no such tests were ever conducted.”

More commonly, it is a

protection against negligence. For example, in some instances, the defense may

find something that was overlooked. Imbler v. Craven

exemplifies this point.

At Imbler’s murder trial, a prosecution fingerprint expert testified that two partial

fingerprints were found on a razor case that the killer had left at the scene. A

positive identification could not be made because of the fragmentary nature of the

prints. After the trial, a defense expert examined the razor case, discovering a

third print that excluded Imbler.

In another fingerprint case, the expert simply

got it wrong: “The fingerprint expert’s testimony was damning — and it was

false.”

Gray v. Rowley, 604 F.2d 382, 384 (5th Cir. 1979) (examination of semen

evidence not “critical”).

State v. Koennecke, 545 P.2d 127, 133 (Or. 1976) (right to test weapons

conditioned on preliminary showing that results will be favorable to defendant).

Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir. 1975). Accord White v.

Maggio, 556 F.2d 1352, 1357 (5th Cir. 1977); Warren v. State, 288 So. 2d 826, 830 (Ala. 1973);

McNutt v. Superior Court, 648 P.2d 122, 124 (Ariz. 1982); State v. Hanson, 278 N.W.2d 198,

200 (S.D. 1979).

State v. Ruybal, 408 A.2d 1284, 1285 (Me. 1979).

State v. DeFronzo, 394 N.E.2d 1027, 1031 (Ohio C.P. 1978).

298 F. Supp. 795 (C.D. Cal. 1969), aff’d, 424 F.2d 631 (9th Cir. 1970).

Id. at 809-10. After his release from prison, Imbler sued the prosecutor for

unlawful prosecution. In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court held that

prosecutorial immunity precluded recovery.

State v. Caldwell, 322 N.W.2d 574, 586 (Minn. 1982). See also Simon A. Cole,

More Than Zero: Accounting for Error in Latent Fingerprint Identification, 95 J. C

RIM. L. &

RIMINOLOGY 985, 1040 (2005) (“in fingerprint practice the concept is vacuous”). Professor Cole

identified twenty-two misidentifications, which he argues “are most likely only the tip of the

proverbial iceberg of actual cases of fingerprint misattribution.” Id. at 991. The misidentification

cases include some that involved (1) verification by one or more other examiners, (2) examiners

certified by the International Association of Identification, (3) procedures using a sixteen-point

standard, and (4) defense experts who corroborated misidentifications made by prosecution

F. Right to Preservation of Evidence

1. U.S. Constitution

Retesting, of course, is possible only if the evidence is preserved. In

Arizona v. Youngblood,

the Supreme Court addressed a defendant’s right to the

preservation of evidence. The case involved the failure to preserve semen in a

sexual assault case. The evidence was critical. Nevertheless, the Court held that

due process is violated only if the government acted in bad faith in destroying the

evidence, a very restrictive standard. The police conduct in the case did not

satisfy this standard: “The failure of the police to refrigerate the clothing and to

perform tests on the semen samples can at worst be described as negligent.”

Commentators have criticized the Youngblood bad-faith test because it

focuses on the individual officer’s state of mind and not the police department

policies. Thus, it provides no incentive for police departments to adopt standard

operating procedures to ensure the proper collection and preservation of evidence.

Larry Youngblood was later exonerated through DNA testing — after having

spent nine years in prison. In response, a DNA scientist, told a reporter:

We now have before us a flawed legal precedent that stands on the

shoulders of an innocent man . . .. For those organizations that are poorly

run or mismanaged or don’t give a damn, . . . the Youngblood case was a

license to let down their guard and be lazy. The effect that had was

generally to lower the standards of evidence collection.

2. State Constitutions

Most state courts have rejected the bad-faith test as a matter of state

constitutional law.

The Alabama Supreme Court, for instance, has recognized

experts.

488 U.S. 51 (1988).

Id. at 58.

Barbara Whiteaker, DNA Frees Inmate Years After Justices Rejected Plea, N.Y.

IMES, Aug. 11, 2000, at A12 (quoting Dr. Edward Blake).

See State v. Morales, 657 A.2d 585, 594 n.20 (Conn. 1995) (“Apparently only

Arizona and California . . . have concluded that their state charters offer the same limited degree of

protection as the federal constitution”; “Like our sister states, we conclude that the good or bad

faith of the police in failing to preserve potentially useful evidence [semen stains that could have

been tested for DNA] cannot be dispositive of whether a criminal defendant has been deprived of

due process of law. Accordingly, we, too, reject the litmus test of bad faith on the part of the

police, which the United States Supreme Court adopted under the federal constitution in

Youngblood.”); Thorne v. Department of Public Safety, 774 P.2d 1326, 1331 n.9 (Alaska 1989);

State v. Matafeo, 787 P.2d 671, 673 (Haw. 1990); Commonwealth v. Henderson, 582 N.E.2d 496,

an exception to the bad faith test where the evidence is so critical to the defense as

to make a criminal trial without it “fundamentally unfair.”

100

The court applied

this exception in a toxic waste dumping prosecution where the sole evidence, the

samples tested, was not preserved. Similarly, the Delaware Supreme Court

rejected Youngblood and set forth a three-pronged analysis: (1) the degree of

negligence or bad faith involved, (2) the importance of the missing evidence,

considering the probative value and reliability of secondary or substitute evidence

that remains available, and (3) the sufficiency of the other evidence used at trial to

sustain the conviction.

101

3. DNA Preservation Statutes

The problem is that most jurisdictions have not prescribed procedures for

the retention of evidence after trial. Only with the advent of DNA profiling have

some states legislated on the issue.

102

The ABA Standards on DNA

103

and NIST

497 (Mass. 1991); State v. Osakalumi, 461 S.E.2d 504, 512 (W. Va. 1995); State v. Delisle, 648

A.2d 632, 643 (Vt. 1994).

100

Ex parte Gingo, 605 So. 2d 1237, 1241 (Ala. 1992). See also Gurley v. State,

639 So.2d 557 (Ala. Crim. App. 1993) (failure to preserve murder victim’s wallet for defense

testing violates state constitution).

101

Hammond v. State, 569 A.2d 81, 87 (Del. 1989) (“We remain convinced that

fundamental fairness, as an element of due process, requires the State’s failure to preserve

evidence that could be favorable to the defendant ‘[to] be evaluated in the context of the entire

record.’ . . . When evidence has not been preserved, the conduct of the State’s agents is a relevant

consideration, but it is not determinative.”) (citation omitted).

102

E.g., CAL. PENAL CODE § 1417.9(a) (West Supp. 2005) (“Notwithstanding any

other provision of law and subject to subdivision (b), the appropriate governmental entity shall

retain all biological material that is secured in connection with a criminal case for the period of

time that any person remains incarcerated in connection with that case.”); D.C. C

ODE § 22-4134

(2001) (“Law enforcement agencies shall preserve biological material that was seized or recovered

as evidence in the investigation or prosecution that resulted in the conviction or adjudication as a

delinquent for a crime of violence and not consumed in previous DNA testing for 5 years or as

long as any person incarcerated in connection with that case or investigation remains in custody,

whichever is longer.”); T

EX. CODE CRIM. PROC. ANN. art. 38.39(a) (Vernon Supp.2003) (“In a

criminal case in which a defendant is convicted, the attorney representing the state, a clerk, or any

other officer in possession of evidence described by Subsection (b) shall ensure the preservation of

the evidence.”); T

EX. CODE CRIM. PROC. ANN. art. 38.39(b) (Vernon Supp.2003) (This

requirement applies to evidence that (1) was in possession of the State during the prosecution of

the case, and (2) at the time of conviction was known to contain biological material that, if

subjected to scientific testing, would more likely than not establish the identity of the person

committing the offense or exclude a person from the group of persons who could have committed

the offense.).

103

See ABA STANDARDS FOR CRIMINAL JUSTICE, DNA EVIDENCE § 16-2.6 (b) (3d

ed. 2007) (“Property containing DNA evidence obtained in an investigation which has resulted in

the prosecution of a person or persons for homicide, rape or other serious offense, and the extract

from such evidence, if any has been obtained, should be retained in a manner that will preserve the

DNA evidence until all persons charged have been convicted of an offense, or adjudicated as

recommendations

104

use the completion of a convict’s sentence as the termination

date.

III. BRADY RULE: EXCULPATORY EVIDENCE

In Brady v. Maryland,

105

the Supreme Court ruled that the prosecution is

required to disclose exculpatory information to the defense if it is material. Brady

issues are not uncommon in expert-testimony cases. For example, in Connick v.

Thompson,

106

the prosecution failed to provide the defense with a laboratory

report, which stated that the perpetrator had blood type B. The defendant had

blood type O. Thompson was convicted of murder. A month before his scheduled

execution, the lab report was discovered. After his acquittal at a retrial, the

defendant filed a civil rights action against the prosecutor for failing to adequately

train his staff on their Brady obligations. Although the Brady violation was

conceded, the Supreme Court ruled that “a pattern of violations is necessary to

prove deliberate indifference in § 1983 civil rights actions alleging failure to train

prosecutors concerning their Brady obligations.”

107

However, the Court added:

“Among prosecutors’ unique ethical obligations is the duty to produce Brady

evidence to the defense. An attorney who violates his or her ethical obligations is

subject to professional discipline, including sanctions, suspension, and

disbarment.”

108

A. Limitations of Brady Rule

Brady is far more limited than may first appear. First, the rule applies only

to exculpatory evidence. In many prosecutions, the inculpatory evidence is more

significant. Brady does not address this type of evidence, and there is no general

constitutional right to discovery.

109

Second, only evidence that is both exculpatory and “material” is subject to

disclosure under Brady. This requirement has produced much litigation. For

example, in one case an inconclusive handwriting report “was not exculpatory, but

having engaged in conduct constituting such an offense, and have exhausted their appeals and

served their sentences or commitments.”).

104

TECHNICAL WORKING GROUP ON BIOLOGICAL EVIDENCE PRESERVATION, NIST,

HE BIOLOGICAL EVIDENCE PRESERVATION HANDBOOK: BEST PRACTICES FOR EVIDENCE

HANDLERS (2013).

105

373 U.S. 83 (1963).

106

131 S. Ct. 1350 (2011).

107

Id. at 1366.

108

Id. at 1362-63.

109

See Weatherford v. Bursey, 429 U.S. 545, 559 (“There is no general

constitutional right to discovery in a criminal case . . . .”).

merely not inculpatory.”

110

Similarly, a report showing that hair from a rape

defendant was not found at the scene of the crime was deemed a “neutral”

report.

111

Yet, as one court correctly understood, “such a characterization [as

neutral] often has little meaning; evidence such as this may, because of its

neutrality, tend to be favorable to the accused. While it does not by any means

establish his absence from the scene of the crime, it does demonstrate that a

number of factors which could link the defendant to the crime do not.”

112

Similarly, in Bell v. Coughlin,

113

the prosecution failed to turn over FBI ballistics

test results to the defense. “The lab positively matched a cartridge shell (B3) to

the .45 caliber pistol but reported that no conclusion could be reached with respect

to the two bullets (J/R2 and J/R4) in its possession. . . . Thus, although the results

of the FBI tests may be characterized as mixed, they clearly contained exculpatory

material.”

114

In the Brady context, “materiality” has a distinct meaning. It does not

mean relevant; it means “outcome determinative,”

115

a stringent standard. The

issue has arisen in numerous scientific evidence cases.

116

In Nelson v. Zant,

117

the

critical evidence was a hair found on the victim’s body. The state’s expert

testified that the hair not only could have come from the defendant but that it

could only have come from about 120 people in the entire Savannah area. The

prosecution failed to disclose that the FBI had also examined the hair and had

concluded that the hair was not suitable for comparison purposes. On review, the

prosecution argued that this evidence was not “material” within the meaning of

110

United States v. Hauff, 473 F.2d 1350, 1354 (7th Cir. 1973).

111

Norris v. Slayton, 540 F.2d 1241, 1244 (4th Cir. 1976). In Sadler v. State, 846

P.2d 377 (Okla. Crim. App. 1993), prosecution’s failure to turn over “inconclusive” DNA report

did not violate Brady.

112

Patler v. Slayton, 503 F.2d 472, 479 (4th Cir. 1974) (FBI lab report on

shoeprint, soil sample, hair sample, murder weapon, and clothing).

113

820 F. Supp. 780 (S.D.N.Y.), aff’d, 17 F.3d 390 (2d Cir. 1993).

114

Id. at 786-87.

115

The suppressed evidence is material “only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

116

E.g., Bonnell v. Mitchell, 301 F. Supp. 2d 698, 726-27 (N.D. Ohio 2004)

(“Regarding the negative test result of the gun nitrates on the defendant’s jacket, there is no

reasonable probability that the outcome of the trial would have been different had this test result

been admitted. As the forensic scientist in this case testified regarding another matter, a negative

test result does not make a positive finding.”). But see People v. Salazaar, 3 Cal. Rptr. 3d 262, 279

(Cal. Ct. App. 2003) (“[W]hile there is sufficient evidence in the record to affirm the conviction,

we cannot be confident in the jury’s verdict because of the Brady violation. Had the jury been

aware of Dr. Ribe’s credibility problems, which would have cast doubt on the prosecution’s

investigation, the case would have been cast in a different light with a reasonable probability of a

different result.”).

117

405 S.E.2d 250 (Ga. 1991).

Brady. The Georgia Supreme Court reversed.

118

Finally, Brady is a trial right; it does not necessarily guarantee timely

pretrial disclosure.

Many commentators have concluded that the Brady doctrine is ineffective

in accomplishing its goal and that an “open file” discovery statute is far more

effective than Brady in ensuring a fair trial. In sum, comprehensive pretrial

discovery obviates most Brady issues and covers inculpatory evidence, which

Brady does not.

B. Ethical Rules

Rules of professional responsibility require the disclosure of exculpatory

evidence.

119

The rule does not require “materiality” — all exculpatory evidence

should be disclosed, whether material or not. However, not all states have

adopted such rules.

C. Application of Brady Rule to Crime Labs

The Supreme Court has extended Brady to cover exculpatory information

in the control of the police,

120

and some courts have explicitly included crime labs.

118

See also BARRY SCHECK ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION

AND

OTHER DISPATCHES FROM THE WRONGLY CONVICTED 174 (2000) (“Analyst Maria Pulling

reported that Reynolds matched none of the trace evidence. She signed the report and forwarded it

to the front desk of the lab for delivery to the prosecutor and the defense. But the exculpatory

report was never delivered to the defense. Ten years later, the volunteer counsel . . . obtained

DNA exonerations of both men . . . . That was when Pulling first learned the case had gone to

trial. When she found out that her report had been concealed, she was astonished.”).

119

ABA MODEL RULES PROF’L CONDUCT, R. 3.8 (Special Responsibilities Of A

Prosecutor: “(d) make timely disclosure to the defense of all evidence or information known to the

prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection

with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information

known to the prosecutor, except when the prosecutor is relieved of this responsibility by a

protective order of the tribunal.” The ABA Criminal Justice Standards also provide that a

prosecutor should disclose “[a]ny material or information within the prosecutor’s possession or

control which tends to negate the guilt of the defendant.” ABA S

TANDARDS FOR CRIMINAL JUSTICE,

ISCOVERY § 11-2.1(a)(viii) (3d ed. 1996).

120

Kyles v. Whitley, 514 U.S. 419, 438 (1995):

[I]t may be said that no one doubts that police investigators sometimes fail to inform a

prosecutor of all they know. But neither is there any serious doubt that “procedures and

regulations can be established to carry [the prosecutor’s] burden and to insure

communication of all relevant information on each case to every lawyer who deals with

it.” Since, then, the prosecutor has the means to discharge the government’s Brady

responsibility if he will, any argument for excusing a prosecutor from disclosing what he

For example, the California Supreme Court noted that a laboratory examiner

“worked closely” with prosecutors and was part of the investigative team. The

Court concluded that the “prosecutor thus had the obligation to determine if the

lab’s files contained any exculpatory evidence, such as the worksheet, and

disclose it to petitioner.”

121

In another case, a federal court wrote that an experienced crime lab

technician “must have known of his legal obligation to disclose exculpatory

evidence to the prosecutors, their obligation to pass it along to the defense, and his

obligation not to cover up a Brady violation by perjuring himself.”

122

While the

expert should have been on notice about perjury, it is less clear that the Brady

obligation would be known to lab personnel — without the prosecutor tutoring the

lab. How often do prosecutor’s discharge this duty? Many lab examiners have

never heard of Brady.

does not happen to know about boils down to a plea to substitute the police for the

prosecutor, and even for the courts themselves, as the final arbiters of the government’s

obligation to ensure fair trials.

121

In re Brown, 952 P.2d 715, 719 (Cal. 1998).

122

Charles v. City of Boston, 365 F. Supp. 2d 82, 89 (D. Mass. 2005). But see

Villasana v. Wilhoit, 368 F.3d 976 (8th Cir. 2004) (en banc); Mowbray v. Cameron County, 274

F.3d 269, 278 (5th Cir. 2001) (no case has extended Brady liability to laboratory technicians).

APPENDIX A: FEDERAL CIVIL RULE 26

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(a) Required Disclosures.

(1) Initial Disclosure. . . .

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule

26(a)(1), a party must disclose to the other parties the identity of any witness it

may use at trial to present evidence under Federal Rule of Evidence 702, 703, or

705.

(B) Witnesses Who Must Provide a Written Report. Unless

otherwise stipulated or ordered by the court, this disclosure must be accompanied

by a written report – prepared and signed by the witness – if the witness is one

retained or specially employed to provide expert testimony in the case or one

whose duties as the party’s employee regularly involve giving expert testimony.

The report must contain:

(i) a complete statement of all opinions the witness will express and the

basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications

authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the

witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony

in the case.

otherwise stipulated or ordered by the court, if the witness is not required to

provide a written report, this disclosure must state:

(i) the subject matter on which the witness is expected to present evidence

under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected

to testify.

(D) Time to Disclose Expert Testimony. A party must make these

disclosures at the times and in the sequence that the court orders. Absent a

stipulation or a court order, the disclosures must be made:

(i) at least 90 days before the date set for trial or for the case to be ready

for trial; or

(ii) if the evidence is intended solely to contradict or rebut evidence on the

within 30 days after the other party’s disclosure.

(4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may

depose any person who has been identified as an expert whose opinions may be

presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the

deposition may be conducted only after the report is provided.

(B) Trial-Preparation Protection for Draft Reports or

Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure

required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect

communications between the party’s attorney and any witness required to provide

a report under Rule 26(a)(2)(B), regardless of the form of the communications,

except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the

expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the

expert relied on in forming the opinions to be expressed.

(D) Expert Employed Only for Trial Preparation. Ordinarily, a

party may not, by interrogatories or deposition, discover facts known or opinions

held by an expert who has been retained or specially employed by another party in

anticipation of litigation or to prepare for trial and who is not expected to be

called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable

for the party to obtain facts or opinions on the same subject by other means.

. . .

(2) Expert Witness. For an expert whose report must be disclosed under Rule

26(a)(2)(B), the party’s duty to supplement extends both to information included

in the report and to information given during the expert’s deposition. Any

additions or changes to this information must be disclosed by the time the party’s

pretrial disclosures under Rule 26(a)(3) are due.

APPENDIX B: FEDERAL CRIMINAL RULE 16

(a) Government’s Disclosure.

(1) Information Subject to Disclosure.

. . .

(E) Documents and Objects. Upon a defendant’s request, the government

must permit the defendant to inspect and to copy or photograph books, papers,

documents, data, photographs, tangible objects, buildings or places, or copies or

portions of any of these items, if the item is within the government’s possession,

custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

(F) Reports of Examinations and Tests. Upon a defendant’s request, the

government must permit a defendant to inspect and to copy or photograph the

results or reports of any physical or mental examination and of any scientific test

or experiment if:

(i) the item is within the government’s possession, custody, or control;

(ii) the attorney for the government knows--or through due diligence could

know--that the item exists; and

(iii) the item is material to preparing the defense or the government

intends to use the item in its case-in-chief at trial.

(G) Expert witnesses. – At the defendant’s request, the government must

give to the defendant a written summary of any testimony that the government

intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence

during its case-in-chief at trial. If the government requests discovery under

subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the

defendant’s request, give to the defendant a written summary of testimony that the

government intends to use under Rules 702, 703, or 705 of the Federal Rules of

Evidence as evidence at trial on the issue of the defendant’s mental condition. The

summary provided under this subparagraph must describe the witness’s opinions,

the bases and reasons for those opinions, and the witness’s qualifications.

(b) Defendant’s Disclosure.

(1) Information Subject to Disclosure.

. . .

(B) Reports of Examinations and Tests. If a defendant requests

disclosure under Rule 16(a)(1)(F) and the government complies, the defendant

must permit the government, upon request, to inspect and to copy or photograph

the results or reports of any physical or mental examination and of any scientific

test or experiment if:

(i) the item is within the defendant’s possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant's case-in-chief at

trial, or intends to call the witness who prepared the report and the report relates to

the witness’s testimony.

give to the government a written summary of any testimony that the defendant

intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as

evidence at trial, if —

(i) the defendant requests disclosure under subdivision (a)(1)(G) and the

government complies; or

(ii) the defendant has given notice under Rule 12.2(b) of an intent to

present expert testimony on the defendant's mental condition.

This summary must describe the witness’s opinions, the bases and reasons for

those opinions, and the witness’s qualifications.

evidence or material before or during trial must promptly disclose its existence to

the other party or the court if:

(1) the evidence or material is subject to discovery or inspection under this

rule; and

(2) the other party previously requested, or the court ordered, its

production.