Do convicted felons have a right to DNA testing?

The Supreme Court will decide whether convicted felons have the right to a DNA test to challenge evidence after their convictions.  The court heard arguments on Monday in the appeal of William Osborne, who demanded a test after his conviction in Alaska on assault involving a prostitute.  Osborne and the Innocence Project, working on his behalf, argue that the Constitution gives Osborne the right to challenge the evidence after conviction, at state expense:

Supreme Court justices appeared closely divided Monday over claims by an Alaska inmate that the Constitution guarantees a right to post-conviction DNA testing.

The court’s most conservative members are clearly aligned against inmate William Osborne, who was convicted of assaulting a prostitute known only as K.G. The court’s most liberal members sounded sympathetic to expanded testing. At most, the odds appear to favor a narrow decision.

“This is a particularly poor candidate for recognizing a new constitutional right,” Deputy Solicitor General Neal Katyal, an Obama appointee, told the court.

There are essentially two questions here.  First, does the state have a responsibility to provide cost-free testing services after conviction to inmates for their appeals?  And does that question rise to a Constitutional level under the jurisdiction of the federal courts?  The latter question is complicated by the fact that 44 states already provide that service; Alaska just happens to be one of six that do not.  Even those states that have the process Osborne wants in Alaska filed amicus briefs against his appeal, arguing that the states can craft their own remedies much better than a federal mandate would.

One hopes that DNA testing would be done in each case where it’s applicable.  DNA doesn’t figure into every conviction, though, and defenses can always do their own DNA testing to counter a prosecution, although cost is often an issue.  A lack of a DNA match or of DNA material doesn’t mean a verdict of innocence in every case, but it is an important piece of evidence to weigh.

However, it seems a far stretch to call it a constitutional obligation.  There have not been any such constitutional obligations to do fingerprint analysis, for instance, or pre-DNA blood work. In fact, it’s difficult to see where in the Constitution such a “right” would originate.  The Fourth and Fifth Amendments restrict governments from unreasonable searches and seizures and protect citizens against being forced to testify against themselves, the latter a right that prosecutors have to overcome with probable cause before getting a DNA test from a defendant.  Nothing in the Constitution says that states have to make testing free and available to convicts.

It’s a matter best left to the individual states, and hopefully the court will reach that conclusion quickly.