People Always Told Me Be Careful What You Do: The Supreme Court’s Refusal to Determine a Constitutional Right to Post-Conviction DNA Testing

Aaron MidlerGUEST BLOGGER Aaron Midler

Last month, the Supreme Court of the United States decided that convicted prison inmates do not have a constitutional right to post-conviction DNA testing. The Court’s decision in District Attorney’s Office for the Third Judicial District v. Osborne dealt a significant blow to prisoners in the three states without provisions for post-conviction DNA testing, as well as prisoners who cannot prove conclusively that DNA testing will exonerate them.  Blog entries by Tim Welch, here and here, explore these issues more fully.

Last month’s decision is also an interesting example of how the Supreme Court deals with the potential of new technology to upset the established legal system.  Chief Justice Roberts, writing for the majority, framed the problem as “how to harness DNA’s power to prove innocence without overthrowing the established system of criminal justice.”  The majority’s solution to this problem was to not disturb the “prompt and considered” response of state legislatures in drafting post-conviction DNA statutes. The majority reasoned that creating a constitutional right to post-conviction DNA testing would shift the responsibility of adapting the criminal justice system to DNA technology from the legislatures to the courts. If the Court had determined that a constitutional right to post-conviction DNA testing existed, the majority predicted that the Court would soon be required to determine a host of other questions, such as whether the states are constitutionally obligated to preserve DNA evidence for future testing–a result that the majority aimed to avoid.

Justice Stevens, writing for the dissent, did not dwell on whether the creation of a constitutional right to post-conviction DNA testing would lead the Court to answer a host of new constitutional questions.  Rather, Justice Stevens demonstrated a willingness to expand the Court’s jurisprudence to change with the times.  Indeed, Justice Stevens compared the majority’s position on post-conviction DNA testing to the Court’s conservative stance on the provision of counsel to indigent defendants before the Court’s  iconic decisions in Powell v. Alabama and Gideon v. Wainwright.  Instead of focusing on the novelty of DNA technology, Justice Stevens rooted the right to post-conviction DNA testing in the established constitutional right of freedom from “arbitrary government action” and the right to “physical liberty.”

Whether in the future the Court will continue to defer to the legislatures in managing the effect of new technologies on the legal system is unclear.  What is clear is that in the coming years the Court will continually face the issue of how to integrate new technologies into our legal system. In all likelihood, it will take the combined efforts of both the legislative and the judicial branches to adequately address the myriad questions involved. Hopefully, the Court will not be hesitant to take a more proactive stance in the future.

Aaron Midler is a second year law student at Chicago-Kent College of Law.  He received his Bachelor of Arts from the University of Chicago, where he studied Psychology.  His interests lie in new technologies, environmental law, and intellectual property.

Leave a Reply

Your email address will not be published.