SCOTUS: No to Post Conviction DNA Testing

The Supreme Court has ruled (a 5-4 decision) that a person who has been convicted of a crime, and when there is DNA evidence present that could conclusively prove innocence or guilt, there is no Constitutional right to have the DNA tested or requirement for the prosecutors to hand the evidence over to the convict’s attorney.

Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”

This is statement is problematic because upon testing the DNA the probability of guilt or innocence will likely change, and in the case of where there is not a match the probability of guilt will fall. How much depends on each case, but it could fall by quite a bit. For example, in a case where you have a young girl (say a pre-teen) and DNA evidence is from semen, the likelihood that the semen is from someone other than the guilty party is unlikely. Even if you were 99% sure that the person now convicted of the crime is guilty the probability of guilt could drop by quite a bit. Conditional probabilities are actually the ratio of two probabilities and as such are non-linear and can move in unpredictable ways. So while the statement is true on its face in that not every criminal conviction involving biological evidence is suddenly in doubt, some of them might very well be very much in doubt. Sweeping those under the rug is based on a poor grasp of probabilistic reasoning.

The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.

What an interesting time to suddenly find one’s federalist views. I would think that the interest of justice would indicate that you wouldn’t want a patchwork of different approaches to the problem. And we should keep in mind that it is often the case that prosecutors will actually try to stop a convict from testing the DNA evidence it would seem that forcing the issue sooner vs. later in the name of justice would seem the right thing to do.

From the NY Times article on prosecutors denying access to DNA testing,

A recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases. In many of the others, they initially opposed testing but ultimately agreed to it. In 98 of those 225 cases, the DNA test identified the real culprit.

What is not being pointed out here is that eye-witness testimony is not nearly as reliable as some might initially think. These people were not convicted without other evidence. I’m sure than of the 98 where the real culprit was identified many of those cases relied on eyewitness testimony, but that that testimony was simply wrong.

Back the SCOTUS decision:

In an opinion written by Justice Samuel A. Alito, Jr., he and Justice Anthony M. Kennedy also said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.

I’m no expert on the law, but it seems to me that this could be very bad. After all, many requests for DNA testing are from cases that pre-date DNA testing, but where the DNA was preserved (i.e. part of a rape kit). If, post conviction, a person cannot get access to the DNA simply because of this reason then an injustice has been done. I guess it depends on how one interprets not asking for DNA testing. In 1979 when there was no testing, then using the “not asking rule” here could possibly further instances of injustice.

And going back to the article on prosecutors hampering access to tests,

In a case before the Pennsylvania Supreme Court, for example, Lynne Abraham, the Philadelphia district attorney, argued that the defendant, Anthony Wright, was not entitled to DNA testing because of the overwhelming evidence presented at trial, including his confession, four witnesses and clothing stained with the victims’ blood that the police said was found at Mr. Wright’s home. The Pennsylvania DNA statute requires the courts to determine if there is a “reasonable possibility” that the test would prove innocence.

This weakens both the Chief Justice’s arguments and those of Alito, in my view. What exactly is a “reasonable possibility” and how do you square it with the DNA results? If in the above case the DNA test comes back and points towards exoneration of Mr. Wright, what then? There is the issue of initial precision and final precision in statistics. Initial precision is where one is concerned mainly with procedures. That is the researcher is confident that following a set of procedures will generally give the right result (hence the term confidence intervals). Final precision is concerned with accuracy of the estimate after the sample information is observed. This strikes me as the problem with the “reasonable possibility” test above. It is focusing on procedure vs. the accuracy of the final result. When we are talking about incarcerating people for a long time and in some cases state sanctioned executions, perhaps we should take a final precision view point. Do the damn test and be double damn sure.

I really don’t see what the problem is at this point with granting access. It is almost as if the prosecution has something to hide and the Supreme Court is going to help them hide it.

UPDATE (James Joyner):  Alito’s point makes some sense, in that we don’t want to give convicted felons a second bite at the apple if their first strategy fails.  But I’m generally in agreement that, if DNA testing would be conclusive, it should be done.  As technology changes, so does the definition of “due process.”

Once someone has been convicted, the burden of proof switches to them to prove their innocence; they are no longer considered innocent and the “reasonable doubt” standard no longer holds. Nor should it.  But there has to be a way to craft a standard that simultaneously allows legitimate exculpatory evidence and doesn’t turn every conviction into an infinite circus.

UPDATE II (James Joyner): Glenn Reynolds, who unlike Steve and myself is not only a lawyer but a lawprof, weighs in:

This is, alas, consistent with prior law, which made evidence of “actual innocence” surprisingly unimportant post-conviction. It’s also something that can — and should — be corrected by legislation. Will Congress act? It should, and so should state legislatures. Anyone who criticizes such legislation as “soft on crime” should be immediately pantsed, as it would, of course, benefit only the innocent.

Those of us who are objectively pro-innocence should hope so.

Photo by Flickr user gravitywave under Creative Commons license.

FILED UNDER: Government, Law and the Courts, US Politics, , ,
Steve Verdon
About Steve Verdon
Steve has a B.A. in Economics from the University of California, Los Angeles and attended graduate school at The George Washington University, leaving school shortly before staring work on his dissertation when his first child was born. He works in the energy industry and prior to that worked at the Bureau of Labor Statistics in the Division of Price Index and Number Research. He joined the staff at OTB in November 2004.

Comments

  1. […] Steve Verdon has a more thorough analysis. Digg it |  reddit |  del.icio.us |  […]

  2. I’m a little torn on this. Thinking aloud,m here…

    . Let’s assume for the sake of argument dna testing is infalible, and is without any monetary cost. What, then are the remaining objections to such tests being conducted post conviction? Is it a lowering of trust in the court system? Abuse of the court system by inmates requesting such tests? Those to me seem pretty weak arguments.

    I suspect the issue comes down to cost, in the end. That being the case, I can see a time when dna testing will become routine as the price of it comes down. Even cost as an excuse seems pretty flimsy in the face of keeping the innocent jailed.

  3. ktc2 says:

    Um . . . dude? You’re kidding right?

    “It is almost as if the prosecution has something to hide and the Supreme Court is going to help them hide it.” Almost as if?

    Seriously you do know that police in criminal cases perjure themselves so much that they actually have their own “cutesy” name for it “testilying”? Right? Not to mention the evidence planting and bought testimony from jail house snitches. That’s before the supposed “experts” like Dr. Stephen Hayne and Michael West who ALWAYS find what the police want, even when it’s not there.

    You really think the “justices” on the SCOTUS don’t know what’s really going on? Of course they’re covering up for their system. Could you imagine if the facts could actually come out in our disgraceful legal (not justice) system?

  4. Steve Verdon says:

    I suspect the issue comes down to cost, in the end.

    I would think that keeping an innocent person incarcerated for a number of years, maybe even executing them, and possibly allowing the true culprit to roam free and engage in further crimes would be the more costly option. After all we’d lose the following:

    1. The innocent person’s lost wages and productive capacity.
    2. The loss due to (possible) additional crimes.

    Not to mention the loss of faith in the legal system once it all comes out.

  5. just me says:

    I think this is more an issue of cost than anything else. DNA testing is expensive and I imagine a lot of states balk at assuming that cost when somebody has already been convicted.

    I suspect it is the cost more than calling the system into question.

    I personally have no objections to testing material available for convictions pre DNA-especially for those who claim innocence and have long sentences.

  6. ktc2 says:

    So the justificaiton for keeping possibly innocent people incarcerated long term at public expense is the cost of a DNA test? Not buying it in the least.

  7. odograph says:

    You really think the “justices” on the SCOTUS don’t know what’s really going on? Of course they’re covering up for their system. Could you imagine if the facts could actually come out in our disgraceful legal (not justice) system?

    Cost and “attention cost”. More than money spent on DNA tests we’d arguably have to staff up public defenders offices.

    I would hope that some sensible balance would be found, and the public would pay in high penalty cases (death row inmates first, life sentence inmates second, … and on down the line). I don’t see the need to retest for someone serving the remaining year of a five year sentence … not because it’s wrong but because as you say it is too expensive.

  8. odograph says:

    i pasted the wrong paragraph to quote. I wanted:

    I suspect the issue comes down to cost, in the end. That being the case, I can see a time when dna testing will become routine as the price of it comes down. Even cost as an excuse seems pretty flimsy in the face of keeping the innocent jailed.

    … maybe the paragraph moved!

  9. […] Steve Verdon: What exactly is a “reasonable possibility” and how do you square it with the DNA results? If in the above case the DNA test comes back and points towards exoneration of Mr. Wright, what then? There is the issue of initial precision and final precision in statistics. Initial precision is where one is concerned mainly with procedures. That is the researcher is confident that following a set of procedures will generally give the right result (hence the term confidence intervals). Final precision is concerned with accuracy of the estimate after the sample information is observed. This strikes me as the problem with the “reasonable possibility” test above. It is focusing on procedure vs. the accuracy of the final result. When we are talking about incarcerating people for a long time and in some cases state sanctioned executions, perhaps we should take a final precision view point. Do the damn test and be double damn sure. […]

  10. ktc2 says:

    In fact I’d note that the convict was offering to pay for the DNA test on his own. The court ruled EVEN IF THE CONVICT IS PAYING FOR IT, he has no right to the test. Therefore cost clearly is an excuse.

  11. odograph says:

    In fact I’d note that the convict was offering to pay for the DNA test on his own. The court ruled EVEN IF THE CONVICT IS PAYING FOR IT, he has no right to the test. Therefore cost clearly is an excuse.

    I didn’t see that! How will this impact The Justice Project?

    I don’t see anything on their site.

  12. Greg Q says:

    What you’ve completely ignored is that DNA tests are not infallible. If you create a “Constitutional Right” for 100,000 guilty people to get DNA testing to “prove” they’re “innocent”, some of the tests will, falsely come back saying they are innocent.

    You want to argue that the false imprisonment rate will be significantly greater than the false negative rate, you’re welcome to make that claim. But completely ignoring it makes you really not worth listening to.

  13. ktc2 says:

    Do we have statistical false negative rate on DNA testing?

    A quick google pulls up results ranging from 0.001% to 0.01%. I’d say this is hardly a worthy talking point.

  14. Steve Verdon says:

    Do we have statistical false negative rate on DNA testing?

    A quick google pulls up results ranging from 0.001% to 0.01%. I’d say this is hardly a worthy talking point.

    Depends on the DNA. If the DNA sample is good then the test should have a very low probability of error, although it could still happen. And we can’t rule out human error (mixing up samples for instance).

    What you’ve completely ignored is that DNA tests are not infallible. If you create a “Constitutional Right” for 100,000 guilty people to get DNA testing to “prove” they’re “innocent”, some of the tests will, falsely come back saying they are innocent.

    Yes, but this is true of all evidence, and I’d wager that DNA evidence has a lower false negative rate than say eye witness testimony. The thing with DNA evidence though is that it isn’t going to nearly as subjective as say memory.

    You want to argue that the false imprisonment rate will be significantly greater than the false negative rate, you’re welcome to make that claim. But completely ignoring it makes you really not worth listening to.

    By this logic we shouldn’t listen to the Supremes either, aside from the fact that a few politicians gave them such authority. We have a group of nine procedurally obsessive complusives who seem to have an unhealthy aversion to empirical evidence.

  15. PD Shaw says:

    If this is the cusp of the decision, I am in no way surprised:

    if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.

    Once a person is convicted, and his appeals are exhausted, he is a felon. He has no presumption of innocence. The burden on the convicted felon to reopen the case and sift the evidence is high. He needs to show that new evidence exists that wasn’t available at the time of the trial. If you don’t do that, the trial never ends. Never.

    This is disturbing when the issue appears to come down to the lawyer’s strategy, but I suspect many defense lawyers will advise their client not to participate in DNA testing as a matter of course.

  16. Steve Verdon says:

    PD,

    That isn’t nearly as bad a reading…problem is that there are people in jail where DNA is available and testing was not available at the time of their trial. Where do these people fall, especially if they are asking for the test? I can imagine a guilty person not wanting to give that kind of evidence, but an innocent person?

    And before you say, “Oh, yeah allow testing.” Keep in mind that prosecutors routinely engage in all sorts of behavior to prevent such tests. Even when there are laws indicating otherwise.

  17. steve says:

    ” But there has to be a way to craft a standard that simultaneously allows legitimate exculpatory evidence and doesn’t turn every conviction into an infinite circus.”

    DNA testing should accomplish this. When it comes back positive, the circus should end.

    Steve

  18. PD Shaw says:

    Yep, I’ve read the factual background of the case. The convict wouldn’t appear to be innocent to anybody, except his mother. Even his attorney thought he was guilty, so didn’t request more exact DNA testing.

    He confessed to being at the scene of the crime, but blamed his friend for the rape and assault, didn’t report the crime, was identified in a line-up, was connected with physical evidence to the crime, including DNA testing which indicated that he, not his friend, left sperm in the condom. The convict wants more exact DNA testing, now that he has nothing to lose.

  19. What an interesting time to suddenly find one’s federalist views.

    Given that the 5 Justice majority is Roberts, Scalia, Alito, Thomas and Kennedy, it isn’t like this is the first time they have ever heard of the federalist argument. The reasoning that when, where, how, etc. a convicted felon can appeal based on DNA is best left to the legislature is by no means unreasonable.

    The argument that this would create a patchwork of justice indicates a total lack of familiarity with the US justice system. As an example, when are you allowed to use deadly force. Surprise, we have a ‘patchwork’ of answers as different legislatures (and unfortunately some courts) have come up with different answers. Does that mean that because the same fact case would produce different results we don’t have justice? No. It indicates that in the policy debates, different legislatures have come down at different points on the issue.

    Try reposting this where you remove all policy making arguments and see what you have left. The courts aren’t supposed to make policy nor the fine fiddly details. You may not like the result, but this is the proper ruling.

  20. PD Shaw says:

    Personaly, I think a crucial requirement of DNA testing is the use of independent labs to conduct the examination and testing. I don’t see the courts ever requiring it. It has to come from the legislture, with the money and directions.

  21. Franklin says:

    I just read an interesting article in a local periodical about something called the “Innocence Project”, where a group of law students from a local college attempts to reverse some wrongful convictions. And believe, after reading some of the cases, there are DEFINITELY some wrongful convictions. Many of them are indeed rape cases.

    As for the SC ruling, yeah I would try to look at the cost vs. benefit. DNA testing isn’t infallible, and the cost is significant. And yet jailing innocent people is something I feel that is very, very bad. I tend to agree with the old adage, “it’s better to let 10 guilty people go than hold 1 innocent person.”

  22. […] it’s decision in District Attorney’s Office v. Osborne (08-6). There’s been a lot of vapors about this case (even Instapundit got it wrong), so I’m going to stop commenting on this in […]

  23. just me says:

    That isn’t nearly as bad a reading…problem is that there are people in jail where DNA is available and testing was not available at the time of their trial.

    I think this set of convicts is very different from those who were convicted when the testing wasn’t available or so cost prohibitive that it wasn’t worth using in certain cases where other evidence seemed overwhelming.

    I do think though, at some point it does have to end. In a case where one DNA test inicates guilt, I am not convinced they should keep testing the DNA with newer tests-especially when other evidence indicates guilt.

    I also think YAJ makes a good point. When, where and how a convict should have access to DNA is a legislative issue-it is policy, and it does make sense that this stuff be decided at that level.

    So I guess I can see both sides on this one.

  24. Eric Florack says:

    I would think that keeping an innocent person incarcerated for a number of years,

    Perhaps I wasn’t very clear. I’m saying that may be the percpetion on the part of the government, not that I agreed with it.

    In fact I’d note that the convict was offering to pay for the DNA test on his own. The court ruled EVEN IF THE CONVICT IS PAYING FOR IT, he has no right to the test. Therefore cost clearly is an excuse.

    Well, likely so. I doubt the DNA testing itself was the only cost consideration, though. The court costs, the cost of making the court system bigger to handle the load of the increased appeal load, and of course the cost of wrongful improsonment suits all end up in the field of vision of procecutors.

    Again, I don’t agree with the perception, but I do understand what drives the reaction.

  25. PD Shaw says:

    I see Prof. Reynold’s is quoted in the update:

    This is, alas, consistent with prior law, which made evidence of “actual innocence” surprisingly unimportant post-conviction

    Having worked as a student, helping lawyers gather evidence of innocence, I think this is a bit of an exaggeration. The burden to present new evidence of innocence is high. What typically is uncovered is evidence that should have been considered by the jury and might have raised reasonable doubts. That’s not enough at the post-conviction stage — that trial is over, the convicted felon must now affirmatively prove his innocence to gain relief.

    This particular case involved a guy who presented no new evidence of innocence, but speculated that he might find some with access to the DNA material. Apparently many states and the federal government have a process of allowing just that, but the rules hinge on timeliness of the request, whether the scientific technology was available at the time of the trial, and whether the previous lack of DNA testing appears to have been strategic. Alaska and two other states appear to be unique in not having a specific process, but these issues were resolved through more general procedural avenues.

    The cost, by the way, is the cost of defendants gaming the system to have two bites of the apple. In the first trial, the defendant offers no evidence and disputes the prosecution’s case in order to raise reasonable doubts. If the defendant loses, then he would seek to find and admit evidence that he could have brought in the first trial.

  26. Steve Verdon says:

    That’s not enough at the post-conviction stage — that trial is over, the convicted felon must now affirmatively prove his innocence to gain relief.

    That is kind of hard when people are blocking access to that evidence.

    And yes, this guy is a dirtbag, but there is much wider implications than just 1 dirtbag here. You obviously know this, but keep harping on the dirtbag nature of the guy who brought the case.

    The cost, by the way, is the cost of defendants gaming the system to have two bites of the apple. In the first trial, the defendant offers no evidence and disputes the prosecution’s case in order to raise reasonable doubts. If the defendant loses, then he would seek to find and admit evidence that he could have brought in the first trial.

    So what, if the person is innocent, then where is the problem? If they aren’t where is the problem? The only problem is in false negatives which are generally quite low to begin with.

    YAJ,

    The reasoning that when, where, how, etc. a convicted felon can appeal based on DNA is best left to the legislature is by no means unreasonable.

    The problem is that politicians are not at all above throwing people under the bus to advance their careers. So a few innocnet people rot in jail so Congressmen/State Representative/Senator Whosit can further his career as a “tough on crime” pol is not at all unheard of. Especially when we have a method that where the science is indisputable and the results can often be highly accurate. Quite different, IMO, than laws for when to use deadly force.

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