Just Because You Are Innocent Doesn't Mean You Have the Right Under Due Process To Demonstrate Your Innocence

In a case decided 5-4 by the Supreme Court last Thursday, it was decided that you do not have the right to DNA test state's evidence against you, even when that evidence could demonstrate your innocence. Chief Justice Roberts writes for the majority,

"DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. The availability of new DNA testing technologies, however, cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The task of establishing rules to harness DNA’s power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature."

We have a criminal justice system based upon the false Enlightment principle that humans are rational beings whose beliefs are formed by logic applied to observational evidence. We know that jury decisions are based at least in part upon prevailing social biases (which tend to work in the favor of well off whites and against those of lower class or other racial backgrounds) and are influenced by effects of social psychology, for example, groupthink.

Now, we have a means that would correct for these defects, freeing the wrongly convicted. Allowing that one has a right to this technology would be tantamount to admitting that the system contains a pragmatic flaw that can be largely corrected. But this admission of a weakness would be revolutionary in the way we see the law. Hence, when the Constitution says one has a right to due process of law, we may allow that this includes a right to effective representation, but only if it is not so effective that it might actually work. It is one thing for professioal baseball to cite tradition in order to refuse to abandon the use of home plate umpires to make ball and strike calls knowing they will not be consistent and blow a few. It is quite another for the Supreme Court to do the same thing with people's freedom and lives.