Constitutional right to access evidence for DNA testing
Via Volokh.com: a federal district court in New York issued an opinion Monday in McKithen v. Brown, which held that there is a constitutional right, post conviction, to access evidence for DNA testing under certain circumstances:
The Petition Clause, however, secures a right of meaningful access to whatever avenues remain, and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of trial.
Prisoners have a right to petition the government by whatever means the legislature provides, in this case by petitioning the governor for clemency, and that right is protected by the Petition Clause. The Court does not answer the question of whether actual innocence is a freestanding ground for habeas relief.
If the right to petition the government is to have any meaning in this context, Due Process requires that there also be a right to post-conviction access to evidence for DNA testing, and the Court finds that:
[E]vidence of innocence that is of unimpeachable reliability is practically necessary if it “‘undermines confidence in the outcome of the trial,’” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).
South Carolina has been trying to get a law passed that would mandate the preservation of evidence and grant prisoners access to evidence for DNA testing. Under the N.Y. Court's analysis, even though the statutes authorizing access are not in place, prisoners should have a constitutional right to such access, at least where there also exists a right to petition the government, whether by clemency petition, habeas, or PCR.
Of course, if the evidence has been destroyed by the government, which currently is quite possible in South Carolina, a constitutional right to access the evidence is meaningless.
