Supreme Court considers prisoners’ rights to new DNA tests

The new deputy solicitor general for the Obama administration urged the Supreme Court on Monday to go slow in giving prisoners a right to seek DNA testing that could free them.

“Our position is there is no constitutional right to DNA,” Neal Katyal, a former Georgetown University law professor, told the justices.

He said establishing a right to DNA testing for inmates could “open the floodgates” to lawsuits seeking new tests of old evidence.

During Monday’s hourlong argument, the justices sounded closely split on whether a prisoner who maintains his innocence has a legal right to demand a modern DNA test on evidence in police files.


At least 232 prisoners have been exonerated by DNA testing, according to the Innocence Project in New York.

Peter Neufeld, a co-founder of the Innocence Project, argued the case on behalf of a convicted rapist from Alaska who says that a new DNA test would show he was wrongly convicted in 1993.

“It is absolutely undisputed,” Neufeld said, “that DNA could conclusively prove his innocence.”

But Neufeld spent much of the argument defending his client, William G. Osborne, against charges that he is “gaming the system.”

Osborne was identified during his trial as a perpetrator of the rape by his co-defendant and the victim.

A lab test included Osborne among the 16% of the population that could have committed the rape. His lawyer, over Osborne’s objections, chose not to seek a more sophisticated test on the semen sample.

Justice Samuel A. Alito Jr. questioned why Osborne “refuses to assert he is actually innocent.” Several justices said they doubted Osborne should win his case against Alaska because he did not file a statement under oath asserting that he was innocent of the crime.

During a parole hearing several years ago, Osborne admitted to the crime. He was released, although he was arrested again on a robbery charge.

The Supreme Court has never ruled that the Constitution’s guarantee of “due process of law” gives convicted criminals a right to evidence.

People who are on trial have a right to submit evidence on their behalf. They also have a right to evidence in police files that could exonerate them.

But the court has been wary of extending the “due process” right to prisoners who have been convicted of a crime.

The court could take until June to decide the Osborne case.