Bench Memos

Supreme Court Ruling on DNA Testing—The Chief’s Opinion

As I mentioned in my initial post about today’s ruling in District Attorney’s Office v. Osborne, the case presents a very interesting debate about the proper role of the Court.  Here are excerpts from Chief Justice Roberts’s majority opinion (citations omitted):

Modern DNA testing can provide powerful new evidence unlike anything known before….  The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

That task belongs primarily to the legislature. “[T]he States are currently engaged in serious, thoughtful examinations,” of how to ensure the fair and effective use of this testing within the existing criminal justice framework. Forty-six States have already enacted statutes dealing specifically with access to DNA evidence.… The Federal Government has also passed the Innocence Protection Act of 2004, which allows federal prisoners to move for court-ordered DNA testing under certain specified conditions.…  These laws recognize the value of DNA evidence but also the need for certain conditions on access to the State’s evidence.…

To the degree there is some uncertainty in the details of Alaska’s newly developing procedures for obtaining postconviction access to DNA, we can hardly fault the State for that. Osborne has brought this §1983 action without ever using these procedures in filing a state or federal habeas claim relying on actual innocence. In other words, he has not tried to use the process provided to him by the State or attempted to vindicate the liberty interest that is now the centerpiece of his claim.

To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response.… “By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field.” If we extended substantive due process to this area, we would cast these statutes into constitutional doubt and be forced to take over the issue of DNA access ourselves. We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.

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. 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.