Thursday, June 18, 2009

The Latest Intimations from on High about the (Lack of) Implications of Due Process for Pretrial Investigation

In District Attorney's Office for the Third Judicial District v. Osborne, No. 08–6. (June 18, 2009), the Court, dealing with and rejecting a claim of a due process violation for denial of post-conviction access to DNA evidence, said (5-4):
Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).
I cannot think of a single significantly-new interpretation of the Constitution that did not require federal courts to issue a "miscellany of minor directives" that give flesh to the new Constitutional principle laid down by the Court. Consider, for example, the multitude of questions that were left unanswered by this very Court in Crawford v. Washington, 541 U.S. 36 (2004). An army of legal scholars, trial lawyers, and judges has been hard at work trying to divine what Crawford requires in a myriad of situations.
On the merits: Arizona v. Youngblood is a lamentable decision that should be overruled. Reason: factfinding accuracy in the criminal process depends on effective pretrial investigation more than on any other single factor except perhaps money.


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