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District Attorney’s Office for the Third Judicial District v. Osborne

Citation. 557 U.S. 52 (2009)
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Brief Fact Summary.

Osborne was convicted of kidnapping and assaulting a prostitute, based in part on one type of DNA test. Osborne sought to overturn his conviction by arguing that he had a right to have another type of DNA testing done on the evidence, through due process.

Synopsis of Rule of Law.

There is no right to DNA testing on evidence based on due process.


In March 1993, two men were driving through Alaska and picked up a prostitute. They sexually abused her, physically abused her, and tried to shoot her in the head before leaving her in the snow on the side of the road. The bullet only grazed her head, and she survived.

The driver was found, and he identified Osborne as his passenger and the man who shot the victim. Additionally, DNA testing was done on the sperm found in the condom he used. The type of testing is relatively inexact; it can clear some individuals, but it narrow down the pool of individuals beyond about 5% of the population. This type of testing eliminated the other suspects and left Osborne. A jury convicted him.

Afterward, Osborne argued that he asked his attorney to have another type of testing performed and that his attorney was ineffective in not pursuing this. However, in an application for parole, he confessed to some of his crimes.


Is there a right to DNA testing under the Due Process Clause?


No, there is not.


Justice Stevens (with Ginsburg, Breyer, Souter)

The State of Alaska has evidence that if tested, would conclusively establish whether Osborne committed rape and attempted murder. If he did, then his conviction is proper. If he didn’t then he is being unlawfully imprisoned.

There should be a constitutional right to accessing evidence. 46 states and the federal government have passed laws to that end.

The State’s refusal to provide Osborne with access to evidence for DNA is arbitrary and pertains directly to his liberty, and therefore is a violation of due process.


DNA testing is improving but is not failsafe. If DNA testing is going to be incorporated into due process, it should be done by the legislature.

Due process is about limiting the state’s power to take away or impact protected rights. There is no liberty interest in demonstrating innocence with new evidence under state law. A criminal defendant who has been convicted does not have the same liberty interests as a free man.

There is nothing otherwise inadequate about the state’s procedures. Any changes to the procedures should made legislatively, not judicially.

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