Federal Evidence Review

Case will determine whether prisoners have a postconviction constitutional right to biological evidence for DNA testing which was unavailable at the time of his state trial, and may use a federal civil rights law (Section 1983) to obtain this evidence as a discovery device, in District Attorney's Office for the Third Judicial District, et al., Petitioners v. William G. Osborne (No. 08-6)

On Monday, March 2, 2009, the Supreme Court heard oral argument in a case which will determine whether prisoners have a Due Process right to obtain biological evidence for DNA testing. The Court is reviewing a decision of the Ninth Circuit which ruled that the prisoner’s “right to due process prohibits the state from denying him reasonable access to biological evidence for the purpose of further DNA testing.” Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 521 F.3d 1118, 1141-42 (9th Cir. 2008).

The specific issue presented before the Court is:

“William Osborne was charged with kidnapping, sexual assault, and physical assault. He had the assistance of a competent lawyer who made a reasonable strategic decision to forgo independent DNA testing of the state's biological evidence. He was convicted after an error-free trial. Now, years later, Osborne has filed an action under 42 U.S.C. § 1983, seeking access to the biological evidence for purposes of new DNA testing. The questions presented are:

1. “May Osborne use § 1983 as a discovery device for obtaining postconviction access to the state's biological evidence when he has no pending substantive claim for which that evidence would be material?
2. “Does Osborne have a right under the Fourteenth Amendment's Due Process Clause to obtain postconviction access to the state's biological evidence when the claim he intends to assert - a freestanding claim of innocence - is not legally cognizable?”

District Attorney's Office for the Third Judicial District, et al. Petitioners v. William G. Osborne (No. 08-6).

From the transcript of the argument, some interesting issues were raised during Monday’s argument:

• Should A Constitutional Due Process Right Be Recognized? One contested issue is whether the Court should recognize a constitutional right to obtain biological evidence for DNA testing. Justice Breyer appeared disposed to establishing a constitutional right. The Solicitor General, as amicus, argued that the Ninth Circuit had “created a novel constitutional right by extending Brady to the postconviction setting” and urged the Court “not constitutionalize rules for postconviction access to DNA, an area of great legislative ferment in the last few years.” Transcript, at 20-21. Congress and some 44 states have enacted statutes permitting prisoners the right to request new DNA tests. See, e.g., 18 U.S.C. § 3600. Chief Justice Roberts underscored this view by asking: “Does it make sense for us to devise a constitutional right to displace what the legislatures have done?” Transcript, at 38. Justice Souter also asked what was unreasonable about a requirement that the prisoner make an actual innocence claim. Transcript, at 43. However, Justice Breyer questioned why the state would not want to provide the requested biological evidence.
• Impact On Criminal Justice System. Another issue raised was the impact any new constitutional right would have on the criminal justice process. Some of the Justices wondered what impact a new constitutional right would have on the criminal justice system. If a defendant made a strategic choice not to request DNA testing for trial but after conviction requested testing, should they be permitted to “gam[e] the system,” as Justice Alito noted, or would they have “a built-in second chance,” as Justice Kennedy suggested. Transcript, at 50, 53. Where actual innocence is not asserted, “there's no cost to him for asking for the DNA evidence.” Transcript, at 32. Justice Steven questioned whether the “floodgates” would be opened by a new claim with only seven cases pending in Alaska. However, Deputy Solicitor General Neal Katyal responded that a new right would invite new filings.
• If A Right Is Recognized, Should Threshold Requirements Apply? The petitioner’s counsel had made a tactical decision at trial not to request DNA testing. Transcript, at 30. Under these circumstances, should the prisoner be permitted to make a request postconviction? During the argument, the point was made that the prisoner should make a claim under penalty of perjury that he or she was actually innocent. This standard is required under federal law and in many states. Transcript, at 23. However, the petitioner had confessed before the state parole board and in writing to committing the crime. Transcript, at 21. Chief Justice Roberts commented: “So he's guilty of perjury one way or the other, either before the parole board or in his assertions of actual innocence here.” Transcript, at 44. However, petitioner’s counsel had claimed: “This is the very first case litigated to our knowledge anywhere in the country where the prosecutor concedes that a DNA would be absolutely slam-dunk dispositive of innocence, but doesn't consent to it.” Transcript, at 36. The respondent’s counsel indicated: “If he doesn't allege his actual innocence, Your Honor, then this is really an empty exercise, a fishing expedition. He wants to just see what -- what the evidence says.” Transcript, at 19.
• Application Beyond DNA Testing. Justice Alito wondered how far any recognized right may extend: “How can this constitutional right be limited to DNA evidence? I presume that there are -- that there may be other scientific advances in the testing of physical evidence, and if that happens, why wouldn't the right apply to those as well? Advances in -- advances in detecting fingerprints or testing fibers or all sorts of other things?” Transcript, at 49.

The Supreme Court Docket for the case is located here.