Mandating Meaningful Forensic Discovery: A Proposal to Fuel the Engine of Truthfulness

Marjorie Anne McDiarmid
Steptoe & Johnson Professor of Law and Technology at the West Virginia University College of Law

After years of disclosure of forensic frauds, discrediting of previous forensic techniques, and exonerations of innocents incarcerated for crimes they did not commit, in 2009, at the behest of Congress, the National Academies of Science published a thoughtful, but devastating critique of the practice of forensic science in the criminal courts of the United States. Its report—Strengthening Forensic Science in the United States: A Path Forward—called for congressional and administrative action to correct the problems identified. Despite efforts by three leading senators, no comprehensive legislation was passed. The Obama administration, on the other hand, took a number of steps to address issues raised in the report.

In one of the Trump administration’s first actions, on April 10, 2017, Attorney General Jeffrey Sessions announced his intention not to renew the charter of the National Commission on Forensic Science. In doing so, Sessions removed one of the two entities fashioned by the Obama administration to address the shortcomings of forensic science in the United States.

With abdication now on the part of both Congress and the Executive, this paper suggests that it is time to give the Judiciary—judges and lawyers—the tools to address an important subset of the issues raised in the NAS Report. [Read entire article here]