The Sixth Amendment and Due Process
Clause are emerging as sources of regulation to
increase the reliability and validity of scientific
evidence and competency of counsel. The courts
have sought to create workable standards to assist
litigators in admitting and using forensic sciences
during trial. A constitutional difference exists
between admitting the expert’s opinion and using
the expert to introduce the underlying report
from a third party as a basis to form an opinion. 4
Furthermore, use of false evidence, debunked
sciences, or repudiated expert witness opinions
is a basis for challenging a conviction through
a writ of habeas corpus and new trial. 5 Rules
governing expert witness qualifications, however,
lack specificity and discernable standards despite
the courts’ attempt to stay current with the rapid
advancements in forensic science.
Developments in forensic science have prompted the Supreme Court to issue decisions increasing
counsel’s duty to competently litigate forensic
science evidence. The standard for effective attorney representation is whether the performance
was deficient, and errors existed depriving a person
of fair trial (e.g., but for the attorney’s conduct,
there would be a different result). 6 This obligation
requires a working knowledge of forensic science.
Attorneys still lack a fundamental understanding of scientific issues, which impedes effective
and competent representation. The inability of
counsel to adequately vet scientific evidence
through cross-examination has led courts to place
considerable dependence on sound laboratory
techniques, careful litigation, complete disclosure
of scientific procedures, scientific methodologies,
and the limitations of forensic evidence. Most of
these decisions are made at the trial court level
on a case-by-case basis. Unfortunately, the “courts
continue to rely on forensic evidence without fully
understanding and addressing the limitations of
different forensic science disciplines,” as stated in
the NAS report.
Scientific developments, societal sophistica-
tion, and court decisions have strengthened the
obligation of counsel to litigate forensic science
evidence. Attorneys must improve their un-
derstanding of forensic science to competently
represent their clients in accordance with consti-
tutionally mandated principles of due process and
1. Roderick T. Kennedy, Stare Decisis Is Not Scientific, The
Sci Tech Lawyer, vol. 13, no. 4, p. 8, 9 (Summer 2017)
2. Sunita Sah, Arturo Casadevall, Suzanne Bell et al, We
Must Strengthen the “Science” In Forensic Science,
Scientific American, May 8, 2017.
3. Kennedy, Stare Decisis Is Not Scientific, The Sci Tech
4. Crawford v. Washington, 541 U.S. 36 (2004);
Me-lendez-Diaz v. Massachusetts, 557 U.S. 305 (2009);
Bullcoming v. New Mexico, 564 U.S. 647 (2011);
Williams v. Illinois, 564 U.S. 50 (2012).
5. Calif. Penal Code, Title 12, Chpt. 1, Sect. 1473 Writ of
Habeas Corpus, eff. Jan. 1, 2015 (2016); Texas Code
of Criminal Procedure, Chpt. 11, Art. 11.073, eff.
Sept. 1, 2013 (2016) Habeas - Procedures related to
certain scientific evidence (The Junk Science Writ).
6. The right to counsel is the right to effective assistance
of counsel. Strickland v. Washington, 466 U.S. 668
(1994); Maryland v. Kulbicki, 136 S.Ct. 2, 577 U.S.
This article is adapted from Natalie Arvizu and
Gil Sapir, Constitutional Requirement To Litigate
Scientific Evidence, American Academy of Forensic
Sciences Proceedings, Vol. 23, p. 834 (2017).
Natalie Arvizu, JD, is a law clerk for New Mexico
Appellate Court. She may be contacted at New
Mexico Court of Appeals, 2211 Tucker, NE, Albuquerque, N.M. 87125. Gil Sapir, JD, MSc, is a
forensic science consultant and attorney. He may be
contacted at PO Box 6950, Chicago, Ill. 60680