High Court Says Convicts Lack Right To DNA Testing

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Most states in the U.S. have laws that allow convicted criminals in some circumstances access to DNA testing of the evidence used against them after they've been convicted. Three states do not. Yesterday, the U.S. Supreme Court ruled there is no right to this testing under the Constitution. There's no right to it even when new and more certain testing methods have been developed since the trial.

The 5-4 high court ruling comes despite 240 post-conviction exonerations in recent years as the result of DNA testing. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The court's ruling came in the case of William Osborne, convicted in Alaska 16 years ago of a brutal rape and assault. The rudimentary DNA testing used in the case did link Osborne to the crime, but it wasn't much better than blood typing and would have linked millions of others to the crime, too.

In the years since then, a new DNA testing procedure has revolutionized the field, making it easier to test small amounts of DNA with near iron-clad certainty. So more than a decade after his trial, Osborne, hoping to prove his innocence, sought access to the condom and pubic hairs from the crime scene so that the new DNA tests could be conducted. And he said he would pay for the test himself.

Alaska, however, is one of three states in the country that still has not enacted legislation authorizing post-conviction DNA testing. And it's the only state whose courts have never ordered such post-conviction testing. So Osborne appealed, asserting that to deny him access to DNA testing that could prove his innocence is to deny him his constitutional right to due process of law.

Yesterday, the Supreme Court by a 5-4 vote disagreed. Writing for the majority, Chief Justice John Roberts said there's no constitutional right to DNA testing, and that it's up to the states and the federal government to draw lines on when such testing should be permissible.

Nebraska Attorney General Jon Bruning, president of the National Association of State Attorneys General, hailed the decision as necessary to protect the states from unwarranted expense.

Attorney General JON BRUNING (Nebraska; President, National Association of State Attorneys General): What we really don't want to see is a place where any inmate can ask for DNA testing for any reason. At the point at which we allow that to happen, it's going to be incredibly expensive. And remember, prisons are full of people who say they didn't do it.

TOTENBERG: Scott Burns, executive director of the National District Attorneys Association, agrees - sort of.

Mr. SCOTT BURNS (Executive Director, National District Attorneys Association): The National District Attorneys Association believes that these decisions should be left to the prosecutors. But, you know, in the same breath, our real job is to do justice. And with all due respect to the prosecutors in Alaska, I think that if guilt and innocence is on the line and a forensic test can acquit or confirm a jury verdict, it ought to be done.

TOTENBERG: Yesterday's ruling will have a limited effect, since 47 states and the federal government do authorize post-conviction DNA testing. Some of the state laws, however, are themselves very circumscribed. Kentucky, for example, limits post-conviction testing to death penalty cases. Other states bar DNA testing in cases where the defendant confessed.

Peter Neufeld of the Innocence Project says these limits make little sense, since many of the 240 people who've been exonerated using DNA testing once looked very guilty.

Mr. PETER NEUFELD (Innocence Project): All 240 people were exonerated with post-conviction DNA evidence, despite the fact that in some of the cases there were three, four and five eyewitnesses, despite the fact that there were confessions and jailhouse informants and all kinds of evidence. The DNA evidence trumped all that other evidence and the dispositively proved their innocence to the satisfaction of prosecutors, judges and the public at large.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.