The Right to DNA Evidence

The Supreme Court should affirm a federal court of appeals ruling to give prisoners access to DNA evidence that could establish their innocence.

Published: March 1, 2009


Alaska is one of six states that do not have laws giving prisoners’ access to DNA evidence that could establish their innocence. The Supreme Court hears arguments on Monday in a case brought by an inmate who argues that he has a constitutional right to test crime-scene DNA that could help him overturn his rape conviction. A federal appeals court ruled in his favor. The Supreme Court should affirm that ruling.

Times Topics: DNA Evidence


In 1993, an Anchorage prostitute was attacked by two men and raped. A man named Dexter Jackson confessed and named William Osborne as the second attacker. Mr. Osborne, who had no criminal record and was serving in the military, was convicted, based partly on a DNA test of biological material from a condom recovered at the scene. The state used an old method, known as DQ-alpha testing, that could not identify the person to whom the DNA belonged with great specificity.


Mr. Osborne is now seeking to do an STR test, a more precise, cutting-edge form of DNA testing, on the same material. If he is innocent, the STR test could prove it definitively. But the Alaska state courts rejected Mr. Osborne’s request. According to his lawyers, Alaska is the only one of the six states without DNA testing laws that has never conducted a postconviction DNA test, either by court order or by consent of the state.


Mr. Osborne went to federal court, where he argued that Alaska’s refusal to allow him to test the material deprived him of his 14th Amendment due process rights. He also argued that the results of the STR test could be run through an F.B.I. database to identify the person who actually committed the crime.


The United States Court of Appeals for the Ninth Circuit ruled for Mr. Osborne. The appeals court relied on the broad principles that the Supreme Court laid out in the landmark 1963 case Brady v. Maryland. In Brady, the justices recognized that the due process clause requires the state to hand over to a defendant before trial any evidence it has that he is innocent. The Ninth Circuit concluded that due process should also require the state to hand over exculpatory evidence after conviction.


DNA testing is the most powerful forensic method for separating the innocent from the guilty. Postconviction DNA testing has exonerated at least 227 innocent people, according Mr. Osborne’s lawyers. If a state has biological evidence that could prove innocence, it has a moral — and constitutional — duty to make that evidence available for testing.


Postconviction DNA testing is also valuable because it can help capture the guilty. As a group of prosecutors, including former Attorney General Janet Reno, have pointed out in a friend-of-the-court brief, often when a prisoner is exonerated through DNA, it leads to the real perpetrator’s being apprehended and convicted.


In criminal law, there is a value in finality of verdicts — of not allowing prisoners to endlessly challenge their convictions. But when DNA is available that can prove that someone is wrongly being kept behind bars, due process requires the state to allow the testing to occur.