Defense Attacks on Prosecution Scientific Evidence: The Standard For Defense Rebuttal Evidence is Already Lower Than the Standard For Prosecution Evidence
Volume 93, No. 1, Fall 2020
By Edward J. Imwinkelried [PDF]

In the past fifteen years, several prestigious organizations have called for reforms to improve the reliability of prosecution forensic evidence. One way that the courts could incentivize such reform is by liberally admitting defense expert testimony that rebuts the prosecution evidence. However, one comment recently argued that the courts admit defense rebuttal testimony more restrictively than the prosecution evidence being rebutted, and to achieve reform, the courts must formally adopt a more lenient standard for the admissibility of defense rebuttal testimony. While this Article agrees that such reform is necessary and that defense rebuttal testimony can spur such reform, it demonstrates that defense counsel can achieve the desired result by more creatively employing the current court rules and precedents.