Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.
Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea. With hundreds of other clients to assist, why invest the time and resources needed to comprehend a new scientific technique sufficiently to cross-examine an expert who has dedicated his or her career to learning the field? It is an intimidating endeavor. Defense challenges to forensic evidence, therefore, are often inconsequential at best or incompetent at worst.
The appellate courts have not rectified this situation or the incentives it engenders. Admissibility decisions are reviewed for abuse of discretion. Claims of ineffective assistance of counsel (IAC) succeed only upon satisfaction of the highly deferential two-pronged standard announced in Strickland v. Washington.
As one solution, I propose that when it comes to the admission of forensic science evidence against a criminal defendant at trial, the Strickland standard should be altered. Once a reviewing court finds that an attorney performed deficiently in combating incriminating forensic science evidence, Strickland prejudice should be presumed. In other words, if a reviewing court has determined that trial counsel was deficient in his or her adversarial testing of incriminating forensic evidence, that court must reverse the conviction and order a new trial, lest defendants be deprived of their Sixth Amendment right to effective assistance of counsel and the integrity of convictions founded on forensic evidence be left in doubt. It should not matter whether, in the opinion of a court reading a cold record that was deficiently developed as far as the forensic science is concerned, the defendant was prejudiced by the deficiency.
A few benefits would flow from this revision. First, rather than allowing courts to bypass the deficiency prong in favor of finding no prejudice, the revision would require courts to address the deficiency question when incriminating forensic science evidence is at issue—if the court finds defense counsel’s assistance sufficient, the inquiry ends; if not, the court, in reversing, thereby reiterates citable standards for defense counsel going forward. This, in turn, would act as an enforcement mechanism to ensure that the criminal defense bar performs consistently with what is constitutionally required of it in the future.
Second, presuming prejudice in the forensic science IAC context will more properly police trial courts that are inclined to treat challenges to forensic evidence hastily and help ensure the integrity of convictions based on forensic science. Rather than asking courts to undertake the nigh impossible task of deciphering how an effective challenge to sophisticated scientific evidence could hypothetically have altered the outcome of a case, the law would ensure that the science is effectively challenged in the first place.
Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence,
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol34/iss4/1