Truthseeking and Criminal Procedure in the Supreme Court’s Last Term
posted by Jenia Turner
Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.
As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?
One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.
The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.
In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.
July 2, 2009 at 7:55 pm
Tags: Osborne and DNA
Posted in: Criminal Procedure, International & Comparative Law, Supreme Court, Uncategorized
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Responses (8)
A Commenter - July 2, 2009 at 8:14 pm
I believe the “truth seeking” notion is more limited than you’re suggesting.
The cases that discuss “truth seeking” are cases on the scope of the exclusionary rule. In those cases, the Supreme Court’s doctrine has the Justices balance the cost of excluding evidence to the benefit of police deterrence. Truth seeking is relevant in that context because the cost of excluding relevant evidence of guilt is to impede the search for truth: The courts intentionally don’t allow the truth to be used.
That balance wasn’t implicated in Osborne, I think. Osborne was more an old-fashioned Warren Court-style case on the proper role of the courts than a case on the role of “truth seeking.” All nine Justices believe in that kind of truth seeking: They just differ on whether the Supreme Court should engage in rule-making to require it or whether they should leave that up to legislatures. Put another way, the issue in Osborne wasn’t how much you weigh the interests implicated by the rule, but rather whether it was constitutionally legitimate for the Justices to create the rule themselves. Five said no; four said yes.
Colin Miller - July 3, 2009 at 5:27 am
This is a very interesting post. It looks to me like the Court’s focus on truthseeking in these cases came from the 11th Circuit’s opinion in Herring, which discussed truthseeking at some length. It will certainly be interesting to see whether the Court continues to mention truthseeking in exclusionary rule cases and in criminal procedure cases generally. It also seems to me like Arizona v. Gant falls on the same side of scales as Osborne.
Howard Wasserman - July 3, 2009 at 6:19 am
A Commenter:
I don’t see the distinction you describe between Osborne and the other cases within this framework. In all, the question was how the Supreme Court should understand and apply constitutional provisions (or derivative doctrines, such as the exclusionary rule) in light of the truth-seeking function of the criminal justice process. The only difference was that Osborne involved the open-ended language of due process, while the other cases involved more-specific provisions. But all reflect the conflict between the scope of constitutional rights and other systemic and procedural values.
Amy - July 3, 2009 at 8:56 am
This case really caught my attention, too. Great post, thanks.
There was talk in the oral argument about the significance of whether or not the lawyers involved were trying to “game the system” and whether that ought to have any bearing on access to the evidence. (Also, consideration of swearing innocence to get access, etc, etc.) The details of this particular case really got me because Osborne’s lawyer DIDN’T order the most sophisticated tests that were even available at THAT time, let alone what’s available now. As I understand it, the test that was done, called DQ Alpha, didn’t tell us much more than that the perpetrator was likely to be black. What was that lawyer up to?
In the end, I’m not sure what I think about a constitutional right to evidence POST-conviction, especially when you’re talking about a free-standing innocence claim. But not letting him have access to at least gather the information rubs me the wrong way.
Justice Breyer put it best in oral argument: “Now why don’t you want to give it to him?” But did Osborne have a fair trial? Did he get his due process already? I’m not sure how you would argue that he didn’t, no matter how much I might want to. And wouldn’t that really put this out of the realm of the constitution?
Howard Wasserman - July 3, 2009 at 11:51 am
Amy: I think there are two ways of looking at the constitutional right at issue in Osborne:
1) Under *Mathews v. Eldridge*, due process turns on a balance of the individual interest at issue, the risk of error, and the burdens process would impose on the government. So while Osborne did receive a fair trial (as far as we can tell), the question is whether he was entitled to *more* process. And that question only can be answered by balancing his possible innocence against the burden on the government in providing the process (which here was non-existent).
2) It violates some provision of the Constitution (substantive due process? 8th Amendment?) to incarcerate or otherwise punish someone who is actually/factually innocent. And if the government holds information through which an individual can show his innocence, government needs to have a good reason for not providing him access. This is different than # 1 because it is not about providing fair process. Rather, it is a substantive right that is violated regardless of how fundamentally fair his trial was.
Larry Rosenthal - July 3, 2009 at 11:52 am
It seems to me that Osborne was a much more complicated case than reflected in this post.
The great difficulty in Osborne was that we do not know whether Alaska would have given Osborne access to the evidence he sought because he had not exhausted his state-law remedy with respect to the type of DNA test he sought to perform. Indeed, one of Alaska’s arguments was that the Court should have treated this as a habeas case and required exhaustion. The Court did not reach that question, but the failure to exhaust left Alaska law quite unclear. As the Court stressed, perhaps Osborne would have been able to obtain the evidence under Alaska law, or perhaps the state courts would have denied relief solely on the ground that Osborne had admitted his guilt in parole proceedings, or had made a tactical decision not to seek other DNA evidence nearly as probative. Thus, the case did not present in a clean fashion the question whether due process ever requires that a prisoner receive access to potentially exculpatory evidence, and the Court’s decision that Osborne was not denied due process in light of the lack of clarity in Alaska law does not suggest that such a due process claim will never been recognized.
Osborne had a substantive due process claim only if the state had deprived him of “due process.” In the states that grant a statutory right of access to this kind of evidence, surely there is no due process right go to federal court in order to obtain evidence after a conviction — the prisoner must go to state court not on a theory of exhaustion, but because state law supplies all the process that is due. Here, however, it was unclear whether Alaska had denied Osborne access to evidence on an unconstitutional basis. Maybe he would have received the evidence in state court. Maybe he would have lost only because he had conceded his guilt in parole proceedings, and perhaps substantive due process permits that kind of forfeiture. Maybe Osborne would have lost only because his attorney had earlier made a tactical decision not to perform a DNA test that was nearly as probative, and perhaps substantive due process permits that kind of forfeiture as well. Because state law was so unclear, it was equally unclear what, if anything, Alaska had denied Osborne in terms of “substantive due process,” or so it seems to me.
Larry Rosenthal
Chapman University School of Law
Daniel - July 7, 2009 at 9:09 am
There is some interesting discussion about a topic close to my heart.
First, I agree with Larry that Osborne is an extremely complicated case and I think there is a tendency among academics to simplify such cases into lessons and that tendency sometimes causes problems. Therefore, the options Howard posts above is a false dilemma.
If you believe in the concept of legal due process as an essential element in legal truth finding then under an adversarial system the responsibility for assuring that the process is due falls on both parties, not just the government. This is why we make a distinction between an objection which is persevered and one that is not preserved. After all, if truth-finding triumphed everything then the idea that an error could be unpreserved is nonsensical.
The point is one that Justice Holmes made time and time again. The only real value in American law is that there is no legal value that triumphs every other value in every case. And that includes the value of truth-finding. The law sometimes punishes the innocent and lets the guilty go free.
I think the majority reaches the correct outcome in Osborne because Amy strikes at the heart of the case when she writes, “The details of this particular case really got me because Osborne’s lawyer DIDN’T order the most sophisticated tests that were even available at THAT time.” Either this was the result of a deliberate legal strategy by that lawyer and thus a fair trial was given (and no more process *could ever possibly be due*) or a result of incompetence in which case the wrong claim was raised and appealed.
One point worth considering is to what extent the legal doctrine of professional incompetence has been inhibited by the guild system. The method that we use to test the professional competence of lawyers is neither an adversarial system of truth finding nor a professional one; the bar exam is an academic mode of truth finding. I wonder what the legal profession would look like if we sought to find the truth of a new lawyer’s competence by subjecting them to the same type of adversarial system as we subject the defendant in court.
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