The ‘Rust’ cases show why defendants should see all forensic reports

A stunning turnaround occurred on Friday when — after a third alleged occurrence of prosecutorial misconduct — Judge Marlowe Sommer was finally forced to dismiss all criminal charges with prejudice in New Mexico v. Alec Baldwin. 

As recently as two weeks prior, Judge Marlowe Sommer was willing to accept Special Prosecutor Kari Morrissey’s excuse that she simply forgot to share critical information contained in a forensic report with the defense team in the previous case brought against convicted armorer Hannah Gutirrez-Reed. That conviction may now also be in question. 

Before the trial, there were two separate accusations that disclosure of forensic reports had been withheld or delayed by prosecutors. The third allegation, that the Santa Fe County Sheriff’s Office had intentionally concealed physical evidence submitted by another party (and with the prosecution team’s knowledge), occurred after the trial had started, forcing the judge to dismiss the charges with prejudice. 

None of this should ever have happened. Since 1963, prosecutors have been required to disclose any information in their possession which may be favorable to the accused. The problem arises because prosecutors are given the role of deciding whether evidence is reliable or would be material to the defense case in determining what needs to be passed along to the defense. 

While there may be room for debate over other types of evidence (e.g., the eyewitness with a checkered past), there is no debate about the utility of forensic lab reports. Nor is there any reason for delaying their release. 

Alec Baldwin is a wealthy celebrity with the resources to obtain the best defense team available. The case against him fell apart because his defense team became aware of rumors that evidence had been intentionally suppressed. His attorneys recognized and acted on that information. The law exists to protect criminal defendants who are not so lucky to have such skillful representation.

The vast majority of prosecutors disclose reports immediately as a matter of routine. They recognize that any strategic advantage is not worth having an ethical timebomb ticking away in their case. 

But the prosecutors who do conceal evidence have an outsized impact on the criminal justice system. Of the wrongful convictions overturned to date, “prosecutors were responsible for most of the concealing of exculpatory evidence and misconduct at trial,” with misconduct occurring in 30 percent of wrongful conviction cases. This behavior persists because attorneys accused of prosecutorial misconduct are not likely to be seriously punished.

Although the issue here revolves around physical evidence, the forensic science community cannot fix this problem. Forensic scientists have a responsibility to disclose information about their analyses, including any weaknesses or qualifications that might limit the significance of their conclusions. The proper avenue for such disclosure is the forensic expert’s report, and ethical experts take great pains to make any shortcomings plain to readers. 

Once they step into the witness box, the expert should be able to feel confident the opposing attorney has been sufficiently informed to prepare for cross-examination. But when that information is not communicated to defense counsel, injustice is all but guaranteed.

The logical remedy is to require disclosure of all forensic reports to defense attorneys in every criminal case, rather than allowing prosecutors to decide. The forensic science community inhabits a mixture of federal, state, county and municipal agencies, as well as private labs and consultants, generating reports at varying stages of investigations and trials. Reports are often created before a suspect has hired a defense attorney or has even been arrested. 

But unlike in 1963, most forensic reports are now transmitted electronically. A straightforward requirement that an electronic copy also be submitted to a local database overseen by the court system would allow defense attorneys to access forensic reports in a timely manner. 

This change is unlikely to occur without legislation or binding legal precedent. And rather than allow piecemeal solutions by different state legislatures or courts, this needs to be resolved at a federal level. Until then, the problem will persist.

As for this case, it seems likely that some members of the Sheriff’s Office will be investigated for the allegations made on Friday. This is necessary to maintain integrity and ensure public confidence. 

But there also needs to be a thorough criminal investigation of any potential misconduct by the prosecution team. In addition, the New Mexico Judicial Standards Commission needs to review the decisions by Judge Marlowe Sommer in these cases, to determine whether allegations of misconduct were improperly ignored prior to Friday’s dramatic events.

It remains to be seen whether that will occur.

Michael Kusluski is a board-certified criminalist and an assistant teaching professor of forensic science at Pennsylvania State University. The opinions expressed are not necessarily those of Pennsylvania State University.