Forensic Defense Clinic

Introduction

Forensic methods, surveillance tools, and policing technologies enable the criminal legal system’s core functions of investigation, prosecution, conviction, and punishment and the disproportionate surveillance and monitoring of communities of color. Evidence generated using forensic methods, surveillance tools, and policing technologies (forensic evidence) is becoming a fixture in criminal cases. Many people assume the reliability, neutrality, and objectivity of forensic evidence. In reality, however, many forensic methods have never been scientifically validated and some forensic evidence is highly unreliable. Even reliable methods are often used in unreliable ways. Indeed, faulty forensic evidence has contributed to twenty-four percent of documented wrongful convictions and roughly fifty percent of DNA exonerations.

Defenders can play a critical role in remedying the harms caused by reliance on forensic evidence in the criminal process. In this first-of-its-kind clinic at NYU Law, students will represent or assist in the representation of indigent accused or convicted persons through a specific focus on issues related to forensic evidence, including traditional forensic methods, novel technologies, and surveillance tools.

Additionally, student attorneys will examine the role of the public defender and the role of the criminal legal system as a whole in providing justice. Because minoritized and marginalized communities that are already overrepresented in the criminal legal system are especially impacted by forensic methods, student attorneys will consider these issues and the role of forensic methods in the criminal process especially as pertains to Black and Latine people; other people of color; indigenous people; the poor; and members of other marginalized communities.

Course Description

Fieldwork

Students will work in partnership with defender organizations to represent or assist in the representation of indigent accused or convicted persons through a specific focus on issues related to forensic evidence. Student attorneys will engage in client-centered lawyering in all aspects of their work.

Because the needs of defender organizations and accused and convicted persons vary depending on the types of forensic evidence being deployed against them at a given time, specific cases will be selected closer to the start of the semester. Case selection will depend on what forensic issues are ripe for litigation and what support defender organizations need prior to the start of the semester. Students will work in pairs or on teams for all fieldwork. Fieldwork may include:

• Drafting and filing amicus briefs in support of accused or convicted persons whose cases involve forensic or technological evidence.
• Drafting novel motions on constitutional and/or evidentiary grounds to ensure the reliability of forensic and technological evidence used against accused persons.
• White paper or research report writing on topical issues involving the use of forensic evidence.
• Moot court training of forensic examiners to support ethical and transparent testimony regarding forensic examinations and opinions.

Fieldwork is likely to require transcript reviews, substantial legal and scientific research, strategy development, and advanced legal writing. Some fieldwork may also require trial advocacy.

Seminar

The seminar will meet weekly for three hours. The seminar will serve as an intensive survey of the use of forensic evidence, surveillance methods, technology, and experts in criminal cases. In the seminar, students will examine the use of forensic evidence, surveillance methods, and technology in the criminal legal system. The seminar will pay special attention to DNA evidence; various forms of pattern evidence, including firearms and toolmark analysis; and digital and algorithmic methods, including surveillance tools.

Students will explore a variety of legal principles governing and regulating use of forensic evidence in criminal cases, with particular focus on admissibility. Students will also examine the techniques used in forensic case work. Ethical considerations of all parties will be a significant topic of conversation.

In order to develop concrete forensic litigation skills, the seminar will include a simulation component. Students will be given a criminal case file involving forensic evidence and asked to participate in a two-part simulation at the end of the semester. In one part of the simulation, students will argue for or against the admission of forensic evidence playing the role of either the prosecutor or defense attorney before student judges. In the other, students will play the role of judge. Student judges will preside over oral arguments on the admission of forensic evidence, hear the arguments of their classmates, and rule on the parties’ requests.

In addition to the substantive topics described above, seminar will also include case rounds. During case rounds, student teams will present and workshop their cases with classmates. Case rounds create the opportunity for students to benefit from the collective input of the entire clinic and to receive feedback from client-centered classmates.

Learning Outcomes

As both legal institutions like the American Bar Association (ABA) and scientific institutions like the National Academies of Science (NAS) have observed, attorneys and judges often lack the training in scientific methodology to litigate issues related to forensic evidence. This can lead to an overreliance on expert testimony and a fear of challenging it.  

This course examines a number of forensic disciplines and the use of experts with the goal of exposing students to a range of forensic methods and evidence in order to view them critically. This is an important skill for defense attorneys and prosecutors, as well as civil litigators and those involved in public policy on criminal justice issues.  

At the conclusion of this course, students will:

1. Understand the disparate impacts of policing, prosecution, and other aspects of the criminal legal system on minoritized and marginalized communities.
2. Have examined and interrogated the contribution of forensic methods to intersectional inequality and injustice in the criminal legal and related systems.
3. Have developed the ability to understand and explain the role of human factors and cognitive bias in forensic analysis.
4. Be able to identify bias-related issues in cases involving forensic evidence.
5. Be able to understand, explain, and apply concepts relating to the intersection of forensic evidence and constitutional protections as a matter of criminal procedure and policy.
6. Be able to recognize the flaws of some forensic disciplines, understand the fallibility of expert witnesses, and be able to critique forensic methods and evidence using legal and policy arguments.
7. Be able to identify, explain and apply the legal frameworks governing admissibility, discovery and disclosure, and presentation of forensic evidence in criminal cases as demonstrated by an understanding of relevant doctrine and procedure.
8. Be able to think critically and strategically about admission of evidence as well as blocking expert testimony and forensic evidence.
9. Be able to identify, evaluate, and select among a range of litigation avenues in cases involving forensic evidence, particularly as relates to litigating the admissibility of forensic evidence.
10. Have developed a baseline understanding of how to select, craft, and effectively present legal arguments related to forensic issues in writing.
11. Have developed basic oral advocacy skills and be able to make clear, persuasive arguments for or against the admission of forensic evidence that employ sound legal analysis.

Qualifications for Applicants

It is recommended (but not required) that students take Evidence and Criminal Procedure prior to joining the clinic, but these courses may alternatively be taken concurrently with the clinic. Preference may be given to students who have already taken these courses.

Application Procedure

Students should submit the standard clinic application, resume and law school transcript using CAMS, the online application system. There may be a remote interview depending on the number of applicants.

Student Contacts

This is a new course, so there are no student contacts.

* 7 credits include 4 clinical credits and 3 academic seminar credits.

** These courses may be taken concurrently with the clinic.