Criminal Law Bulletin Volume: 32 Issue: 3 Dated: (May-June 1996) Pages: 255-273
This article argues that there is a constitutional right that the accused can rely on to override a common-law rule or statute that would otherwise bar the admission of exculpatory scientific evidence.
When a defense counsel is planning his/her trial presentation, every effort should be made to comply with the normal common-law and statutory exclusionary rules applicable to the items of evidence that he/she contemplates introducing; however, if counsel concludes that a critical item of evidence is technically inadmissible, there are alternatives available. If the item is both critical and demonstrably reliable, counsel can make the alternative argument that the client has a constitutional right to present the evidence, notwithstanding the common-law or statutory exclusionary rule. As a matter of tactics, counsel should introduce the argument by a pretrial in limine motion. If the judge hears this constitutional argument for the first time at sidebar during trial, the judge will be inclined to apply the traditional exclusionary rules. By submitting the issue at pretrial, the defense counsel implies to the judge that he/she has so much faith in the argument that the judge should be given ample time to evaluate it. There are a large number of lower court precedents that uphold this constitutional right. 153 footnotes
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