Cert. Grant: Do Prisoners Have a Right to Use New Technology To Prove Their Innocence?

Posted on Categories Criminal Law & Process, U.S. Supreme Court

The Supreme Court today granted certiorari in District Attorney’s Office v. Osborne (No. 08-6, opinion below: 521 F.3d 1118 (9th Cir. 2008)). At issue is whether a prisoner convicted of rape can sue a prosecutor’s office to obtain DNA evidence for more sophisticated testing than was available at the time of the prisoner’s trial. Lurking in the background is the difficult constitutional question of whether the prisoner would be entitled to obtain his release through a federal habeas corpus petition if DNA testing proved his innocence. The Supreme Court has repeatedly dodged this issue in the past, refusing squarely to hold whether or not innocent prisoners have a constitutional right to be relieved from their punishment under the Due Process Clause. See, e.g., House v. Bell, 547 U.S. 518 (2006).

The formalists on the Court have a hard time swallowing any constitutional rights that are not spelled out in explicit detail in the text of the Constitution, but I’ve always thought that “due process,” if it is to mean anything at all, must surely include a right not to be punished if one is not guilty. I think most Americans would be shocked to learn that the state may simply ignore persuasive evidence of innocence and continue to hold a prisoner for years (or potentially even execute the prisoner) despite grave doubts as to the prisoner’s guilt. New forensics technology (especially DNA testing) will eventually force the courts to tell us once and for all whether that is indeed the state of the law.

Around the blogosphere, the Kansas Federal Defender Blog posts on Osborne here, observing:

Now, the government has sought cert, wanting to deny DNA testing as a constitutional right. This may have caught media attention just because of the Palin/Alaska hook, but this is a rather fundamental question of fairness and integrity. It is hard to imagine why anyone, even prosecutors, would object to such testing if there is the possibility of exoneration of an innocent person.

The Crime and Federalism Blog discussed the Ninth Circuit’s Osborne decision here, helpfully noting a connection with the Supreme Court’s infamous decision in Arizona v. Youngblood:

How many more innocent men will be released [before] judges will decide that not allowing testing is unacceptable and unconstitutional? You would think that judges would seek to get past Arizona v. Youngblood, 488 U.S. 51 (1988). In Youngblood, the Supreme Court held that the state does not have a duty to preserve physical evidence of a crime. Unfortunately, Youngblood was actually innocent of the crime he was convicted of; and if the state had preserved the evidence, he would have left prison a free man.

Will the Court now learn from the tragic mistake of Youngblood?

One thought on “Cert. Grant: Do Prisoners Have a Right to Use New Technology To Prove Their Innocence?”

  1. Regarding “formalists on the Court have a hard time swallowing any constitutional rights that are not spelled out in explicit detail in the text of the Constitution”:

    How do formalists square this requirement with the Ninth Amendment, which both implies the existence of constitutional rights not spelled out in the text and commands their protection?

    It is a problem that the Framers did not explain how to determine which putative rights they sought to protect, but perhaps that indicates that the Framers were not formalists.

Join the Conversation

We reserve the right not to publish comments based on such concerns as redundancy, incivility, untimeliness, poor writing, etc. All comments must include the first and last name of the author in the NAME field and a valid e-mail address.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Marquette University Law School - Contact Us
Marquette University Law School, P.O. Box 1881, Milwaukee, Wisconsin 53201 (414) 288-7090
Street Address: Marquette University Law School, 1215 W. Michigan St., Milwaukee, Wisconsin 53233

About the Blog | Comments Policy

The opinions expressed here are those of the individual authors and do not represent the views of Marquette University or its Law School.