Thursday, September 21, 2017
Two of my colleagues, Jennifer Oliva and Valena Beety, recently collaborated on an article discussing the disadvantages faced by criminal defendants when questioning expert forensic evidence. The existing system does not provide equivalent pre-trial discovery protections for civil and criminal defendants. Civil litigants benefit from the Daubert standards, ensuring any forensic evidence (and similar expert witness evidence) is automatically disclosed and vetted pre-trial. Prosecutors, however, do not automatically disclose evidence in the same manner. Instead, this information is shared shortly before trial. But what happens if you never go to trial? Simple – you remain unaware of the evidence. Beety and Oliva advocate for the importance of parity for criminal defendants, especially given the prevalence of plea deals. The lack of automatic disclosure translates into many defendants entering the plea stage completely unaware of exculpatory forensic evidence. It is unsettling to think an insurance company has greater ability to access and vet evidence than a criminal defendant. Criminal defendants risk the loss of their very freedom and suffer a host of civil, collateral consequences post-incarceration or post-conviction. Civil collateral consequences alone can render them unemployable, increase their risk of homelessness and housing insecurity, and impact their ability to maintain custody of their children. A just system warrants equal, if not greater, protections for these defendants.
There are a number of issues with the existing system that are eloquently explored by the authors in the article. As Clinical Professors, Beety & Oliva exemplify the important role that clinicians can play in the development of legal scholarship and law reform advocacy.
The full article is available here: http://scholarlycommons.law.northwestern.edu/nulr/vol112/iss1/5/
You can also hear Professor Oliva’s commentary on Edward Chang’s the “Excited Utterance” podcast available here: https://www.excitedutterancepodcast.com/listen/2017/9/11/32-jennifer-oliva