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Constitutional Regulation of Forensic Evidence

Journal: Washington and Lee Law Review
Published: 2018
Primary Author: Brandon Garrett

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.

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