Delaware v. Fensterer

Fensterer (defendant) was convicted of murder in the courts of the state of Delaware (plaintiff). At trial, the prosecution presented the expert testimony of an FBI agent who testified that a hair from the victim found at the scene had been forcibly removed. The FBI agent explained that he considered three different characteristics of a hair follicle to be evidence of forcible removal. The FBI agent did not make a written record of which characteristic he relied upon to conclude that the victim’s hair had been forcibly removed. The agent could not remember which characteristic he had relied upon. Fensterer objected to the admission of the agent’s testimony on grounds that he was deprived of the opportunity for effective cross-examination by the agent’s inability to remember which characteristic he had relied upon. The trial court overruled Fensterer’s objection. Fensterer presented an expert witness who testified that he had spoken with the FBI agent and had been told by the agent that he had concluded that the hair had been forcibly removed because a follicular tag was present on the hair. Fensterer’s expert testified that the follicular tag characteristic had been discredited as reliable evidence of forcible removal. Fensterer was convicted and appealed through the state courts. The state supreme court concluded that by presenting a witness with advance knowledge that the witness could not remember the basis for his opinion, the prosecution had obstructed Fensterer’s ability to effectively cross-examine the adverse witness. The state supreme court reversed Fensterer’s conviction. The state of Delaware petitioned the United States Supreme Court for review.