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NATIONAL COMMISSION ON 

FORENSIC SCIENCE

Pretrial Discovery of Forensic Materials

Type of Work Product

Views Document developed by the Reporting and Testimony Subcommittee

Recommendations

1. When a party proposes to use forensic evidence in a criminal case, the adversary party 

should be provided with access to the underlying items examined (if reasonably available) 

and with detailed information about the kinds of analyses conducted and methods used to 

evaluate those items, the testing conducted on those items, the observations made, the 

opinions, interpretations and conclusions reached, and the bases for those observations, 

opinions, interpretations and conclusions. 

2. Access to such information should be made in sufficient time for the adversary party to 

make effective use of the information.

3. Access to such information should be equally available to both sides, regardless of which 

side is proposing to use the evidence. 

4. Access to such information should be enforceable by the parties through the courts.

Statement of Issue

The key values of honesty and openness are essential for science to progress, and this is no less 

true when the science is intended to be utilized in the legal process. When forensic science 

evidence is part of a criminal case, the complexities and variability of forensic science make 

appropriate a substantial advance disclosure of the items examined, the kinds of analyses 

conducted and methods used to evaluate those items, the testing conducted on those items, the 

observations made, the opinions, interpretations and conclusions reached, and the bases for those 

observations, opinions, interpretations and conclusions – all in order to enable the legal process to 

deal effectively with such evidence in the immediate case and for the forensic science to improve 

in the future. The National Commission on Forensic Science therefore believes that the interaction 

of forensic science with the courtroom and with the fair administration of the criminal law will be 

greatly enhanced by such substantial advance disclosure, leading to more careful analysis of such 

evidence and, in the end, more just results in the cases in which such evidence is utilized, as well 

as betterment of the science itself. Toward that end, the National Commission on Forensic Science 

endorses the foregoing four principles to guide the parties and policymakers in criminal cases when 
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deciding how to determine the scope and timing of pre-trial access to information about forensic 

evidence generated for the purpose of criminal litigation.

Background

The above four principles may be briefly elaborated, as follows:

1. Substantial Advance Access

Peer review is central to assessing the validity of all scientific assertions. If such review is 

to be meaningful in the case of forensic science, the variable and sometimes controversial nature 

of forensic science requires full access to the underlying items examined (if reasonably available), 

the kinds of analyses conducted and methods used to evaluate those items, the testing conducted 

on those items, the observations made, the opinions, interpretations and conclusions reached, and 

the bases for those observations, opinions, interpretations and conclusions. The functional 

equivalent of peer review in the legal system is the adversarial process, by which the parties get to 

examine and cross-examine proffered evidence. In the case of forensic science evidence, this 

process cannot function effectively if the competing parties are not given substantial advance 

access to the underlying items examined (if reasonably available), the kinds of analyses conducted 

and methods used to evaluate those items, the testing conducted on those items, the observations 

made, the opinions, interpretations and conclusions reached, and the bases for those opinions, 

interpretations and conclusions – for otherwise the parties are in no position to meaningfully 

confront the evidence. 

Moreover, this is not just a matter of providing substantial advance disclosure in order to 

secure adequate confrontation at trial. As the Supreme Court has recognized, the overwhelming 

majority of criminal cases are currently resolved through plea bargains. Where such plea bargains 

are premised in material part on the existence of relevant forensic science evidence, the 

negotiations leading to the plea bargain cannot be fairly arrived at without the parties having 

sufficient access to the aforesaid information and evidence as to allow them to meaningfully 

evaluate such information and evidence.

2. Timeliness of Disclosure

 It follows from the above that, to be useful, such disclosure must occur sufficiently soon 

after indictment for counsel to have adequate time to evaluate the information and evidence. 

While no time requirement fits every situation, and while not all discoverable material need be 

provided at the same time, the more technical the forensic science evidence is, and the more 

central that evidence is to a resolution of the factual and legal issues in the case, the earlier the 

disclosure should be. 

3. Reciprocal Access

We see no basis for advocating that the disclosures discussed above be made only by 

the prosecution. If the defense chooses to make use of forensic evidence, either at trial or as 
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part of a plea bargain negotiation, it should afford the prosecution the same timely access to 

information and evidence as would be made by the prosecution in reciprocal circumstances.1

4. Enforcement by the Courts

 Rules of access to information and evidence, including timeliness and reciprocity, cannot be 

effective if they are not enforceable by the courts. This should include not only compliance with 

statutory requirements and court rules, but also enforcement of reciprocal agreements reached by 

the parties to exchange information about forensic science evidence. For example, although the 

government, in the interests of justice, might choose to make greater disclosures about forensic 

science evidence it proposes to use than the law of a particular jurisdiction requires, it might also 

choose to provide such enhanced disclosures only upon the defense’s agreeing to make comparable 

disclosures in the event the defense chose to introduce forensic evidence. Such agreements, if 

reduced to writing, should ordinarily be enforceable in court. 

 

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 It should be noted that we are not here addressing situations where one party or another 

employs a forensic expert to help that party understand, evaluate, or prepare to challenge the other 

party’s forensic expert. In such situations, various doctrines might apply that would bar 

disclosures by one or both sides, in whole or in part. Our recommendations are here limited to the 

situations where a party proposes to make use of forensic evidence either at trial (including pretrial motion practice) or in plea negotiations.

 More generally, there may be a variety of situations not covered by the four principles here 

advanced where disclosure of forensic science information may or may not be appropriate. This 

Views document takes no position on such issues, which may or may not be the subject of 

subsequent documents.