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.