SCOTUS on DNA Evidence Access

SCOTUSblog provides an analysis of last week's Supreme Court decision in District Attorney’s Office v. Osborne, Handing off the DNA issue.

In a 5-4 decision the conservative wing of the court ruled that you don't have a constitutional right under due process to get access to DNA evidence that was used to convict you for testing to prove your innocence in an appeal.

"The majority opinion in District Attorney’s Office v. Osborne (08-6) should not be misunderstood: it does not rule out entirely any access, in a criminal case, to genetic evidence for DNA testing.  What it does do is narrow any legal foundation for such access, primarily by leaving it up to 50 state legislatures and Congress to craft rules to control access."

"The ruling does not bar an accused individual, not yet convicted, of obtaining such evidence to check it for DNA. In fact, the Court in no way disturbed the basic constitutional requirement, under the 1963 decision in Brady v. Maryland, that prosecutors must turn over to the defense — before trial — any evidence they have that might help the defense contest the criminal charge. Presumably, the Brady right includes some right of access (before conviction) to genetic evidence held by the prosecution, to test it for DNA."

What's more interesting in this opinion is how the court reacted to a claim for a new constitutional right.

"[Roberts] opinion stopped just short of denying any authority for the Court, in interpreting a suspect’s rights in a criminal proceeding, from converting a pre-trial right (such as access to favorable evidence) into something that lasts beyond a guilty verdict."

Steven's dissent "interpreted the wave of DNA access laws in the states and at the federal level not as a reason for the courts to remain on the sidelines, but as making it “more, not less, appropriate to recognize a limited federal right to such evidence.”

Souter agreed with Roberts, "In fact, the Souter opinion is an eloquent essay on the virtues of “going slow” in recognizing “an individual right unsanctioned by tradition.”