In a split 5-4 decision, Chief Justice John G. Roberts, Jr. ruled that an individual cannot demanded access or testing to DNA material after his conviction becomes final in District Attorney’s Office v. Osborne (08-6).
In 1994, William Osborne was convicted of kidnapping, first-degree sexual assault and first-degree assault in Alaska. He was refused an opportunity to retest his DNA despite the fact that a less accurate and reliable test was used before this trial. He filed a federal lawsuit under 42 U.S.C. § 1983, arguing that the decision deprived him of his rights, privileges, or immunities secured by the Constitution and laws — relying specifically on the Due Process Clause of the Fourteenth Amendment.
The majority opinion below states:
DNA evidence will undoubtedly lead to changes in the criminal justice system. It has done so already. The question is whether further change will primarily be made by legislative revision and judicial interpretation of the existing system, or whether the Federal Judiciary must leap ahead—revising (or even discarding) the system by creating a new constitutional right and taking over responsibility for refining it.
Federal courts should not presume that state criminal procedures will be inadequate to deal with technological
change. The criminal justice system has historically accommodated new types of evidence, and is a time-tested
means of carrying out society’s interest in convicting the guilty while respecting individual rights. That system,
like any human endeavor, cannot be perfect. DNA evidence shows that it has not been. But there is no basis for Osborne’s approach of assuming that because DNA has shown that these procedures are not flawless, DNA evidence must be treated as categorically outside the process, rather than within it. That is precisely what his §1983 suit seeks to do, and that is the contention we reject.
Roberts uses a classic “slippery slope” argument:
Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. rehearing).
Roberts expressly left the access to DNA as a legislative, not a constitutional, matter. Associate Samuel Alito wrote a concurrence with Anthony Kennedy that would have gone further to bar any claim for DNA being made as part of a civil rights lawsuit as opposed to a habeas case.
What is most striking is that this vote could have been 6-3 with the addition of Sonia Sotomayor, who has a very mixed record for civil libertarians, particularly in criminal and free speech cases. For a review of Sotomayor’s decisions click here.
Most states guarantee access but not Alaska. The current laws, however, are a patchwork of different standards. Alaska is one of only six states without any law guaranteeing such access and testing.
The opinion is below:
For the oral argument in the case, click here.