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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 hon esty 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 scie nce 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 conclusio ns 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 car eful 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 Forensi c Science endorses the foregoing four princi ples to guide the parties and policymakers in criminal cases when2

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 sometime s 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 mad e, 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), t he 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 recogniz ed, 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 canno t 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. R eciprocal 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 as3

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, c annot 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 pro vide 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 cour t.

1 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 doctr ines 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 pre

trial 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 su ch issues, which may or may not be the subject of subsequent documents.