The Need for a Lenient Admissibility Standard for Defense Forensic Evidence

While the unreliability of forensic evidence is becoming increasingly well known, the courts are still reluctant to apply a strict admissibility standard, particularly against government forensic evidence. Even the National Research Council’s groundbreaking report in 2009 has not changed the courts’ practices. This article finds that the status quo is problematic, because without strict review from the courts, the forensics community will not embrace genuine scientific standards. To resolve this problem, this article argues an asymmetry admissibility standard that is relaxed for defense. This asymmetric standard first levels the playing field, because the current admissibility standard favors the State. In addition, counter-intuitively, this new standard would ultimately help strengthen the government’s forensic evidence, which make this proposal more acceptable. This article also presents legal grounds to support the asymmetrical standard and provides specific examples of how the standard would be applied. Considering the continued resistance before and after the report, this proposal would be a practical method to strengthen forensic evidence.