Delaware v. Fensterer

Background

A man convicted of murdering his fiancée was tried largely on forensic hair evidence. The State’s expert, an FBI agent, testified that one hair on a leash had been forcibly removed but could not recall which method he used to reach that opinion. The defense called another hair expert who found a follicular tag and said a tag does not reliably show forcible removal. The Delaware Supreme Court reversed the conviction, saying the defendant was denied effective cross-examination because the prosecution’s expert would not commit to the basis of his opinion.

Reasoning

The Court addressed whether admitting an expert’s opinion when the expert cannot recall its basis violates the Confrontation Clause (the constitutional right to confront witnesses). The per curiam opinion said this case did not involve an out-of-court statement and the trial court did not limit cross-examination. The defense had a full chance to probe the expert, the jury saw the expert’s demeanor, and the defense’s own expert challenged the opinion. For those reasons, the Court held the Confrontation Clause was satisfied and reversed the state court.

Real world impact

This summary reversal makes clear that, under the Court’s view in this case, prosecutors may call expert witnesses even if the expert cannot remember the precise basis for an opinion so long as the defense receives a full opportunity to question and rebut. The decision was issued without full briefing, the case was sent back to the state court, and the outcome could be revisited in later, fuller review.

Dissents or concurrances

Justice Marshall objected to the summary procedure and would have given the parties notice and full briefing. Justice Blackmun wanted a full hearing. Justice Stevens concurred in the result but said the legal issue was close and should be argued fully, expressing concern about interfering with state courts’ handling of novel questions.