SCOTUS Refuses to Recognize Access to DNA Testing as a Due Process Right

In today's decision in District Attorney's Office for the Third Judicial District v. Osborne, the Supreme Court, by a 5-4 margin, rejected a criminal defendant's claim that he had a constitutional right to access evidence for DNA testing to prove his innocence. The majority opinion, written by Chief Justice Roberts, did not resolve whether Osborne had persued the proper procedural remedy by filing suit under Section 1983 rather than following the state postconviction/habeas route. Rather, the Court's opinion jumped to the merits.

Chief Justice Roberts noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”

The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.

Two of the Justices who joined the majority, Justice Alito and Justice Kennedy, said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, asserting that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after first trying the challenge in state court.

They also said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction. Justice Clarence Thomas joined them on that second point, but not on the need to pursue the habeas route.