Is There a Constitutional Right to Testing Under the Brady Doctrine?

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a defendant has a constitutional right at or before trial to be informed of exculpatory evidence in the hands of the State. A number of courts have extended Brady to requests for DNA testing even when the request is made after trial and although it is potentially exculpatory evidence that is being sought. In Arizona v. Youngblood, 488 U.S. 51 (1988), petitioner claimed that his conviction should be vacated because the State before trial had destroyed rectal swabs containing sperm which could have demonstrated his innocence if subjected to serological testing. Although the Supreme Court found that the conviction would not be overturned without proof that the swabs were destroyed in bad faith, nothing in the opinion suggests that petitioner would not have been entitled to testing if the swabs now existed.

These Supreme Court decisions provide an avenue for access to testing even when no formal discovery procedures exist as part of the postconviction statutory scheme in that jurisdiction. But see Wogenstahl, 1998 WL 306561, at *2-*3 (not Brady violation to refuse request for testing). While the weight of reported cases acknowledges a right of access to the evidence for purposes of DNA testing on Brady grounds, there are many unreported, summary decisions in which trial courts have simply dismissed applications for postconviction testing without reaching any Brady-based constitutional arguments.

An early case applying Brady is Matter of Dabbs v. Vergari, 570 N.Y.S.2d 765 (Sup. Ct. Westchester County 1990), in which an inmate requested access to perform DNA testing as a prelude to a possible motion to vacate the conviction based on newly discovered evidence. The prosecution opposed the motion on the grounds that no statutory right to the requested postconviction discovery then existed in New York; that the results of proposed testing were speculative; and that granting the petitioner's request would prompt other convicted sex offenders to demand DNA testing. The Dabbs court, relying on Brady, supported its decision to allow the requested testing as follows:

• [A] defendant has a constitutional right to be informed of exculpatory information known to the State . . ..
• A corollary to the duty of disclosure is the duty to preserve exculpatory material . . ..
• Courts have dismissed indictments after convictions because of destruction or loss of evidence by the police when that police conduct has deprived a defendant of material of high exculpatory potential . . ..
• [W]hile it is unclear what such testing will ultimately reveal, [defendant] has demonstrated an adequate foundation for the testing by showing that the victim's panties, a gauze pad, and rape tests slides have high exculpatory potential.

Dabbs, 570 N.Y.S.2d at 767-68 (citations omitted). DNA testing ultimately exonerated Dabbs and his conviction was vacated. See People v. Dabbs, 587 N.Y.S.2d 90, 93 (N.Y. Sup. Ct. 1991).

In State v. Thomas, 586 A.2d 250 (1991), the court rejected lateness arguments from the prosecution and held that DNA evidence is such a potentially powerful tool to demonstrate actual innocence that even the most unyielding procedural bars must give way:  

"Under these circumstances, consideration of fundamental fairness demands that the [DNA] testing of this now 7-year-old rape kit material be done now . . .. Our system fails every time an innocent person is convicted, no matter how meticulously the procedural requirements governing criminal trials are followed. That failure is even more tragic when an innocent person is sentenced to a prison term . . .. We regard it as . . . important to rectify that failure . . .. There is a possibility, if not a probability, that DNA testing now can put to rest the question of defendant's guilt . . .. We would rather [permit the testing] than sit by while a [possibly] innocent man . . . 'languishes in prison while the true offender stalks his next victim.'"

Thomas, 586 A.2d at 253-54 (citations omitted).

Other cases embracing a Brady analysis are: Sewell v. State, 592 N.E.2d 705, 707-708 (Ind. Ct. App. Dist. 3 1992) (inmate allowed access to rape kit for DNA testing 10 years after conviction notwithstanding the absence of discovery procedures; "Advances in technology may yield potential for exculpation where none previously existed. The primary goals of the court when confronted with a request for the use of a particular discovery device are the facilitation of the administration of justice and the promotion of the orderly ascertainment of truth."); Commonwealth v. Brison, 618 A.2d 420, 423 (Pa. Super. Ct. 1992) ("where evidence has been preserved, which has high exculpatory potential, that evidence should be discoverable after conviction"); Mebane v. State, 902 P.2d 494, 497 (Kan. Ct. App. 1995) (requests for DNA testing can be granted under Brady when proper showing made)

Go to the Next Section: Is There a Constitutional Right to Demonstrate Actual Innocence That Provides a Basis for Access to Testing Through Habeas Corpus Review in Federal or State Court?

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