On June 18, the Supreme Court decided District Attorney's Office v. Osbourne, No. 08-6.
William Osborne was convicted of kidnapping, assault and sexual assault, based in part on a form of DNA testing of some of the physical evidence. After his conviction, he sued under 42 U.S.C. § 1983, claiming that the due process clause gave him a constitutional right to access to the DNA evidence for further testing at his own expense. The district court entered summary judgment for Osborne, holding that "under the unique and specific facts presented, [there is] a very limited constitutional right to the testing sought." The U.S. Court of Appeals for the Ninth Circuit affirmed the judgment, relying on the state's constitutional duty to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and holding that the due process clause requires not only pre-trial disclosure by the state, but post-conviction disclosure and access as well.
The Supreme Court reversed, holding that the due process clause does not provide a criminal defendant a right to post-conviction access to evidence, even if the evidence arguably would help prove his innocence. Any liberty interest that Osborne had in proving his innocence with new evidence was adequately protected by state law, which provided that a defendant can obtain vacation of his conviction or sentence if there is newly-discovered evidence that establishes by clear and convincing evidence that he is innocent. The Court also rejected Osborne's substantive due process claim, reiterating the Court's reluctance to "expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." The Court held that, with state legislatures actively working on the issue of DNA technology in the criminal justice system, it would be unwise to constitutionalize the area, thus trumping what state legislatures are already working out.
Chief Justice Roberts delivered the opinion of the Court, in which Justices Scalia, Kennedy, Thomas and Alito joined. Justice Alito also filed a concurring opinion in which Justice Kennedy joined and Justice Thomas joined in part. Justice Stevens filed a dissenting opinion in which Justices Ginsburg and Breyer joined and Justice Souter joined in part. Justice Souter also filed his own dissenting opinion.