An inmate claimed that Pennsylvania's refusal to allow him to conduct post-conviction DNA testing on evidence in his criminal case violated his due process rights. The federal appeals court noted that the U.S. Supreme Court rejected that argument in District Attorney's Office for the Third Judicial Circuit v. Osborne, #08–6, 2009 U.S. Lexis 4536, and that there is no federal constitutional right to such testing. Young v. Philadelphia County District Attorney's Office, #09-1668, 2009 U.S. App. Lexis 17799 (Unpub. 3rd Cir.).
     A federal court has held that police can lawfully forcibly take DNA samples, including by drawing blood with a needle, from persons who have been arrested but not convicted of any crime. The court upheld a federal statute allowing the gathering of such samples from those arrested for a felony. The court rejected claims that taking such samples was overly intrusive or violates the Fourth Amendment. U.S.A. v Pool, #CR09-0015, (E.D. Cal.).
     A man was convicted of kidnapping, sexual assault, and assault after the prosecution elected not to conduct DNA testing on materials from the victim's person and her clothing. His requests for DNA testing in connection with post-conviction proceedings were denied in state court. In a federal civil rights lawsuit seeking access to the materials for DNA testing, denying this request, a federal appeals court ruled that there is no due process right to post-conviction access to evidence for DNA testing, and nothing constitutionally inadequate in Colorado's post-conviction procedures applied in this context. McDaniel v. Suthers, #08-1400, 2009 U.S. App. Lexis 13613 (10th Cir.).
      Qualified immunity was improperly granted in a lawsuit over the forcible taking of a DNA sample from a pretrial detainee merely because a prosecutor wanted to put the sample in a "cold case" data bank. At the time, the court stated, there was no warrant or court order authorizing the taking of the sample, nor was the detainee suspected of a crime for which a DNA sample might be justified. An officer allegedly forced his jaw open and forcefully took a swab from the inside of his mouth. If true, this action violated the detainee's clearly established Fourth Amendment rights. Friedman v. Boucher, No. 05-15675, 2009 U.S. App. Lexis 13440 (9th Cir.).   .
     The U.S. Supreme Court, in a federal civil rights lawsuit brought by a man convicted of sexual assault and other crimes, held that the plaintiff had no constitutional right to post-conviction access to the state's evidence for DNA testing for the purpose of attempting to prove his innocence. The Court also reasoned that it was a legislative task to develop procedures and rules for obtaining access to such evidence for DNA testing. District Attorney's Office for the Third Judicial Circuit v. Osborne, #08–6, 2009 U.S. Lexis 4536.
    The U.S. Supreme Court has announced that it will decide whether a man convicted of sexual assault and kidnapping fourteen years ago has a constitutional right to access to DNA from physical evidence collected in the case for the purpose of conducting tests which he claims will show his innocence, but which were not possible scientifically to perform at the time of his trial. District Attorney's Office v. Osborne, # 08-06, cert. granted, Nov. 3, 2008. Case below: Osborne v. District Attorney's Office, #06-35875, 521 F.3d 1118 (9th Cir. 2008).
     While plaintiff's claim that denial of access to physical evidence which was the basis for his murder conviction stated circumstances which might violate his constitutional rights, his claim was time-barred under a two-year statute of limitations which began to run on the date that a state court denied his request for access to the physical evidence for purposes of DNA testing. Savory v. Lyons, No. 06-1296 (7th Cir. November 29, 2006). [N/R]
     Arrestee had no constitutional right to pre-trial DNA testing, even though failure to do requested test allegedly delayed his release from detention for twenty-two months. Jimenez v. State of New Jersey, 245 F. Supp. 2d 584 (D. N.J. 2003). [2003 LR Jul]
     Court defers to legislature the issue of the potential constitutional right to post-conviction DNA testing for persons convicted of federal crimes and declines to fashion a broad constitutional due process right of access to DNA testing. Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002) [N/R]
     Florida state DNA testing statute upheld against state constitutional privacy challenge. Requirement that all felons convicted of certain offenses undergo a DNA blood test also did not violate a juvenile felon's Fourth Amendment rights, since the public's legitimate interests in identifying the perpetrators of crime, absolving the innocent, and preventing recidivism outweighed a felon's diminished expectation of privacy. L.S. v. State of Florida, 805 So. 2d 1004 (Fla. App. 2001). [N/R]