This paper argues in support of the U.S. Supreme Court's decision in District Attorney v. Osborne, 128S.Ct. 2308 (June 19, 2009), which held that criminal defendants do not have a Federal due process right to post-trial DNA testing.
If the Supreme Court had ruled in Osborne's favor, it would have created a new avenue for thousands of convicted sex offenders, murderers, and other offenders to subvert State law and go straight to Federal court seeking testing and re-testing of all of the evidence in their cases. Current law requires that defendants exhaust all of the remedies available to them in State courts pursuant to State law before they can go to Federal court by filing a petition for a writ of habeas corpus. If Osborne had prevailed in the Supreme Court, defense attorneys would have been permitted to engage in the type of strategic play that would avoid the testing of the defendant's DNA prior to trial. In the Osborne case, his defense attorney blocked his DNA testing, fearing it might further incriminate him. Most States have laws that govern when inmates may obtain post-trial DNA testing of the evidence in their cases, and prosecutors' offices have also developed policies to respond to these requests. By rejecting Osborne's claim, the Supreme Court has essentially told defendants that they must follow the existing laws of their States and exhaust all of their State remedies before they can go to Federal court pursuant to the filing of a habeas corpus petition.
US Dept of Justice, Office on Violence Against Women
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United States of America
Strategies in Brief, Issue 2, August 2011