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Vanderbilt Law Review

First Page

791

Abstract

"At bottom the case against Claus von Bilow was a scientific case. It would have to be refuted by scientific evidence,"' wrote Alan Dershowitz. The von Bilow case is not alone. Many recent notorious criminal trials involved scientific proof. For example, the prosecution offered hypnotically refreshed testimony and bite mark evidence in the Ted Bundy case. Fiber evidence proved critical in the trial of Wayne Williams for the murder of two of the thirty young black males killed in Atlanta in the late 1970s.' Other illustrations include the pathology and serology testimony in the Jean Harris trial, the forensic analysis of physical evidence in the Jeffrey MacDonald "Green Beret Doctor" case, and the ballistics, shoeprint, and fingerprint evidence in the "Night Stalker" serial murder prosecution. Indeed, reliance on scientific proof has become so common that its absence in a particular case is noteworthy. A news account of the "Central Park Jogger" case commented that "[a]mong the defense's strongest points in attacking the prosecution's case was the surprising absence of physical evidence-no weapons, no blood stains, no strands of hair, no pieces of skin, no foot- prints link any of the teenagers to the crimes."

Even the popular press has written on the subject. The New York Times relates that the importance of expert testimony "is growing as technological advances enable courts to dispose of cases by using scientific tools." Time reports that "forensic science is growing so fast that even the most sophisticated researchers cannot keep up." This development raises a number of issues for the legal system. The standard for admitting novel scientific evidence, such as Deoxyribonucleic Acid (DNA), continues to vex the courts. The admissibility of laboratory reports in criminal prosecutions is unresolved." The contours of an indigent accused's right to defense experts still is being explored. The expansion of the bases of expert testimony in Federal Rule of Evidence 703 (Rule 703) remains controversial.

One issue that appears to be settled is the need for pretrial discovery of scientific evidence. Virtually all jurisdictions track Federal Criminal Rule 16 (Rule 16) and make reports of scientific tests discoverable. The leading texts on criminal procedure give the subject scant attention, apparently assuming that the current discovery rules are adequate. Indeed, one commentator noted that the limited litigation over Rule "no doubt reflects the general recognition of the necessity to afford the defense discovery of the results and reports of medical examinations and scientific tests and of the longstanding and widespread practice of many prosecutors of making such information available on request."'

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