Old News Is Important News

In Brown v. Perlman, 2008 U.S. Dist. LEXIS 37546 at n. 41 (May 8, 2008), Judge Magistrate Peck said:

A prosecutor's failure to conduct forensic tests does not violate a federal constitutional right. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S. Ct. 333, 338, 102 L. Ed. 2d 281 (1988).41

41 See also, e.g., Venticinque v. Burge, No. CV-04-3411, 2005 U.S. Dist. LEXIS 32109, 2005 WL 3369093 at *5 (E.D.N.Y. Dec. 12, 2005) (Rejecting petitioner's claim that he was denied due process "because the prosecutor failed to conduct DNA or other forensic analyses on the knife that was used in the underlying assault," since "the prosecutor's failure to conduct forensic tests does not violate a federal right," citing Arizona v. Youngblood)); Johnson v. New York, No. 02-CV-3752, 03-Misc.-0066, 2003 U.S. Dist. LEXIS 24384, 2003 WL 23198785 at * 14 (E.D.N.Y. Nov. 5, 2003) (Weinstein, D.J.) ("The People were not constitutionally mandated to perform additional forensic tests on the evidence in this case. . . ."); Smith v. Edwards, 98 Civ. 7962, 2000 WL 709005 at *6 (S.D.N.Y. May 31, 2000) ("[T]here is no due process requirement that the government use any particular investigatory tool, including quantitative testing [such as DNA testing], to secure exculpatory evidence.").

The judge magistrate's recommended finding were approved by a United States District Court. See Brown v. Perlman, 2008 U.S. Dist. LEXIS 108387 (S.D.N.Y., June 23, 2008).

My hope is that a reconstituted United States Supreme Court will someday reexamine Youngblood and will study how the judiciary, under a due process umbrella, can oversee pretrial investigation in criminal cases to enhance the accuracy of criminal adjudication.

Lest ye forget: Youngblood was the case in which the prisoner, denied a constitutional remedy by the Supreme Court, was eventually exonerated -- after 18 or so years in the slammer -- by a new DNA test.

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