due process Archives – Southern California Law Review

Familial DNA and Due Process for Innocents

July 2025July 2025Erin Sheley*

Ever since genealogical DNA unmasked the Golden State Killer in 2018, the use of this new forensic science has been ubiquitous. Police have solved several hundred cold cases by uploading unidentified crime scene DNA samples to consumer genealogical databases and, with expert assistance, building out family trees from the resulting matches to identify suspects. This practice has raised significant concerns among privacy scholars due to the intimate nature of DNA information and the lack of consent by the parties ultimately identified through their relatives’ choice to upload data. Critics argue that the Fourth Amendment bars law enforcement from running warrantless familial DNA searches using consumer databases, even among users who have given their consent. Several states have also passed legislation banning or severely restricting such searches.

This Article argues that the current debate around familial DNA has neglected the due process rights of another person: the innocent third party who is potentially convicted in the absence of accurate, exculpatory DNA evidence. Both the Compulsory Process and Due Process Clauses give a defendant the right to obtain exculpatory evidence in their defense through judicial subpoena and from the government itself under Brady doctrine. In close cases, the respective scopes of competing constitutional rights should be defined so as to not excessively burden one another. On that basis, this Article argues against any ban on, or categorical constitutional or statutory rule requiring, probable cause for law enforcement to conduct familial DNA searches. The privacy interests raised by critics are legitimate; yet the functional inability for law enforcement to identify unknown suspects due to the lack of probable cause disproportionately burdens defendants whose Compulsory Process and Due Process rights are already limited by existing materiality requirements and inadequate resources. For many innocent defendants, the State itself is the best and only source of investigative resources and potentially exonerating evidence.

Introduction

In 2019, after Christopher Tapp had served nearly twenty years of a sentence for the rape and murder of his eighteen-year-old friend Angie Dodge, his conviction was vacated.¹ An Idaho jury convicted him in 1998 largely due to a series of interrogations during which the police attempted to get him to implicate various friends, including through the offer of an immunity deal, which was later withdrawn when it was discovered that one friend had an alibi.² During questioning, police—including a former guidance counselor of Tapp’s, whom he personally trusted—threatened him with the death penalty and told him that he could not remember the murder because he was repressing it.³ Tapp was convicted despite DNA tests that had excluded both him and the initially-targeted friend as the source of semen found at the scene of the crime.⁴

A decade after the conviction, the Idaho Innocence Project took up Tapp’s case and requested DNA testing on hairs found on the victim’s body, which had only been visually inspected previously.⁵ The FBI lab found that the DNA on the hair was consistent with that of the semen, meaning that the hair also excluded Tapp. In rejecting Tapp’s lawyers’ requests for further testing, an appeals judge found that “while DNA testing may be relevant in identifying one of the assailants, such does not make it more probable that Tapp is innocent.”⁶

Ultimately, the Idaho Falls police—now with the public support of the victim’s mother—worked with the Innocence Project and the private company Parabon Nanolabs to identify the source of the DNA sample.⁷ Parabon created a genetic profile from the sample and compared it with profiles submitted to various consumer ancestry databases.⁸ Starting with profiles in the database, Parabon was able to use other records to build a family tree that turned out to include a man named Brian Dripps, who had lived across the street from the victim and had even been questioned during the early investigation.⁹ Using a discarded cigarette butt collected by the Idaho Falls police, Parabon compared Dripps’s DNA with the sample from the crime scene and was able to identify Dripps as the source of the DNA.¹⁰ Dripps confessed to the murder and rape, saying that he had acted alone and did not even know Tapp.¹¹ Christopher Tapp’s two-decade nightmare was over.

Tapp’s case was at the vanguard of the latest development in forensic science: law enforcement use of familial DNA mapping to identify crime scene samples against the profiles voluntarily uploaded by perpetrators’ relatives to direct-to-consumer (“DTC”) genealogical sites. Starting with the apprehension of California’s infamous Golden State Killer in 2018, familial DNA has been responsible for the police solving a series of high-profile crimes in recent years, including the 1981 New Hampshire murder of Laura Kempton by Ronney James Lee; the 1984 murder of fourteen-year-old Wendy Jerome by Timothy Williams in Rochester, New York; and Sherri Papini’s false claims of kidnapping and sex trafficking by fictitious Latina women in Shasta County, California in 2016.¹²

While law enforcement use of DTC databases has brought resolution to many cases, it has also been the source of significant consternation among privacy advocates and scholars. At the start of the DTC revolution, users were not necessarily aware that law enforcement might be able to access their DNA profiles.¹³ In the current moment, even the most law-enforcement-friendly DTC companies explicitly allow users to “opt in” or “opt out” of sharing their information with police.¹⁴ Even so, many argue that such consent should not include third-party relatives eventually identified through genetic genealogy because these relatives have no control over whether their family members have uploaded their own DNA to a DTC site.¹⁵ As states have begun to regulate in this area, many have explicitly allowed for police access to DTC sites.¹⁶ However, several states have passed statutes restricting law enforcement use of familial DNA. The District of Columbia and Maryland wholly ban familial DNA searches of police databases; in Maryland’s case, the ban extends even to searches by private citizens (and, thus, criminal defendants).¹⁷ Montana, meanwhile, prohibits police from conducting familial DNA analysis using either DTC or police DNA databases without probable cause, which may be very difficult to establish in many cases involving an unidentified sample.¹⁸

The constitutionality of familial DNA searches is governed by the Supreme Court’s most recent word on the Fourth Amendment in an era of evolving technology—Carpenter v. United States.¹⁹ Carpenter invalidated the government’s use of a subpoena (rather than a warrant) to access a subject’s cell phone location data from their service provider, a practice it had previously justified under the “third-party doctrine” of the Fourth Amendment.²⁰ The Court held that a person has a reasonable expectation of privacy in the totality of their movements, and that, because carrying a cell phone is effectively involuntary in the modern age, such an expectation is not defeated by the fact that a user’s location data is shared with third-party service providers.²¹ Critics of unfettered law enforcement access to DTC DNA databases and of familial DNA searches generally point to the increasing ubiquity of both public and private databases and the large number of strangers who can be involuntarily identified through a fairly small number of users.²² They argue that a person has a reasonable expectation of privacy in their DNA against such non-consensual, indirect identification.²³

This Article is the first to examine this question with regard to a forgotten constitutional stakeholder: the potentially innocent “other” suspect who, like Christopher Tapp, familial DNA might exonerate. While critics on both sides tend to balance the privacy rights of targeted parties against the crime-solving interests of the government, the constitutional framework is more complicated than this given the due process rights of these potential defendants. In Part One, this Article explains the science of forensic DNA generally, familial DNA specifically, and their roles in investigations and exonerations. Part Two presents the Fourth Amendment background to this problem and summarizes the argument that courts should recognize a reasonable expectation of privacy that would prohibit warrantless familial DNA searches, even where DTC users give consent. Part Two also asserts that while this argument is colorable, it is weak. This is due to both standing problems and the fact that the privacy interest in not being identified as the specific depositor of a single DNA sample is not comparable to the interest in the privacy of one’s daily movements.

Part Three argues that a falsely accused suspect has a similarly colorable due process right in the availability of familial DNA testing. Such a right derives from three sources: the Compulsory Process Clause, the due process right to exculpatory evidence, and the due process right to post-conviction relief procedures. This Part argues both that defendants themselves should not be legally barred from running familial DNA searches in public or private databases and that the practical realization of their due process rights requires that law enforcement not be so barred either. Part Four concludes that, in close cases, competing constitutional rights must not excessively burden one another. On that basis, this Part argues against any categorical rule substantially preventing law enforcement from conducting familial DNA searches. While legislatures are well-advised to limit the use of this technology to serious cases in which other investigative techniques have failed, they should not adopt bans or probable cause requirements; if they do, they should at least create an explicit process for defense subpoenas. Furthermore, Part Four concludes that courts should not extend Carpenter to create a categorical warrant requirement for familial DNA searches of police databases or DTC databases where an initial user has given consent to law enforcement access.

I. The Developing Practice of Forensic DNA

A. DNA Science

Deoxyribonucleic acid (“DNA”) is a molecule found in cells that contains the genetic code for an organism’s development, function, growth, and reproduction.²⁴ DNA is hereditary, meaning it is passed from parent to child.²⁵ The information in DNA is stored as a code made up of four chemical bases: adenine (“A”), guanine (“G”), cytosine (“C”), and thymine (“T”).²⁶ Human DNA consists of about three billion bases and more than 99% of those bases are identical across the species.²⁷ Their sequence determines the information available for building and maintaining the organism.²⁸

Variations in code can occur at any point in the genome, including non-coding areas.²⁹ Scientists have discovered that these non-coding regions contain repeated units of DNA that vary in length between individual subjects; one particular type of repeat, the short tandem repeat (“STR”), is easily measured and compared for identification purposes.³⁰ The FBI has identified thirteen areas, or “loci,” on a chromosome where STRs are found, which U.S. law enforcement now uses to identify individuals—for example, to identify remains, determine paternity, or match a suspect to a forensic sample from a crime scene.³¹

DNA identification involves the use of statistics.³² The FBI has established the frequency with which each form, or “allele,” of the thirteen core STRs naturally occurs in people of different ethnicities.³³ In a specific case, a lab will determine the allele profile of the thirteen core STRs for both the crime scene sample and the suspect’s sample. If they do not match, the suspect is excluded.³⁴ If they have matching alleles at all thirteen STRs, it then becomes possible to make a statistical calculation to determine the frequency with which that genotype arises in the population.³⁵ The probability, for example, of two unrelated Caucasians having identical DNA “fingerprints” is about 1 in 575 trillion.³⁶ Because there are 5,000 trillion pairs of people out of the 100 million Caucasians in the world, roughly eight or nine pairs would be expected to match at the thirteen STR loci.³⁷

Given the exceedingly low likelihood of any given person matching the DNA profile associated with a crime scene, the probabilistic science of DNA has generated some of the most reliable evidence known to our justice system.³⁸ This does not mean that it is always perfect evidence. DNA samples may be small in quantity, improperly preserved, or highly degraded (meaning that analysts can only obtain a partial profile).³⁹ Furthermore, some crime scene samples contain DNA from multiple sources. All of these issues can confound the effectiveness of DNA fingerprinting as a means of identification. However, in cases in which all thirteen STR loci can be examined and matched, such matches are extraordinarily reliable.⁴⁰

The use of DNA science in crime solving has been facilitated by the rise of DNA databases maintained by law enforcement. The DNA profiles in these databases come primarily from two sources: (1) DNA samples taken from crime scenes where they can be obtained (for example, “rape kits”) and (2) samples taken from convicted offenders and, in some states, arrestees. All fifty states statutorily require at least some offenders, especially those convicted of sexual or violent crimes, to submit samples.⁴¹ In addition, thirty states statutorily authorize law enforcement to collect DNA samples from those arrested for certain types of crimes, usually felonies.⁴² The FBI maintains the Combined DNA Index System (“CODIS”), a program of support for law enforcement DNA databases nationwide.⁴³ It includes the National DNA Index System (“NDIS”), which contains the DNA profiles contributed by federal, state, and local participating forensic laboratories.⁴⁴ As of February 2024, CODIS had assisted in over 680,122 criminal investigations.⁴⁵ One study of Danish data found that police collection of criminal offenders’ DNA profiles increases detection probability and reduces recidivism rates over the next year by as much as 43%.⁴⁶

B. DNA and Exonerations

One of the most important developments flowing from the rise of DNA evidence since the mid-1990s has been its potential for exonerating the wrongfully accused and convicted.⁴⁷ A 1996 study found that as many as 25% of the cases sent for DNA analysis in the early days of the technology ended up excluding the primary suspect, demonstrating the significance of DNA technology in avoiding potential wrongful convictions.⁴⁸ Between 1989 and 2020, the Innocence Project reports that 375 wrongfully convicted prisoners were freed due to post-conviction DNA testing.⁴⁹ This is, unfortunately, due not only to the accuracy of DNA evidence but also to the unreliability of other forms of evidence that have been contributing to false convictions since time immemorial.⁵⁰

One significant factor in wrongful convictions has been the problem of false eyewitness identifications. Sixty-nine percent of DNA exonerations tracked by the Innocence Project involved eyewitness misidentification.⁵¹ This is perhaps unsurprising due to the role of trauma in distorting witness recollections over time⁵² and the fact that police practices around line-ups and show-ups can often—even unintentionally—prove overly suggestive and encourage bad identifications.⁵³ Cross-racial identifications are notoriously less reliable than identifications made by witnesses of the same race as the suspect.⁵⁴

False confessions, as exemplified by Christopher Tapp’s case, have been identified as a factor in over 25% of DNA exonerations.⁵⁵ On average, people who confess to crimes they did not commit have been interrogated for sixteen hours or more.⁵⁶ Other factors associated with false confessions include deceptive practices by police, such as lying about evidence, isolation, intimidation, and force.⁵⁷ Whatever the particular causes, the problem of wrongful conviction has been found to disproportionately affect Black suspects.⁵⁸ The role of DNA in exonerations thus suggests that it improves not only accuracy but also equality in the criminal justice system.

Responding to the implications of DNA science for the wrongfully convicted, all fifty states have enacted statutes dealing with defendants’ access to DNA evidence post-conviction.⁵⁹ Such statutes generally provide not only a right to post-conviction testing under certain circumstances but also an easing of traditional rules of finality in cases where the results demonstrate innocence.⁶⁰ At the federal level, the Innocence Protection Act provides for post-conviction DNA testing in federal cases, and the Justice for All Act creates financial incentives for states to provide for post-conviction DNA testing.⁶¹

Increased public attention to the problem of wrongful convictions has also prompted several jurisdictions to create Conviction Integrity Units (“CIUs”) within their prosecutor’s offices to monitor and investigate potentially wrongful convictions.⁶² The creation of the CIU in Dallas County, Texas was the result of the County’s DNA retention policy as well as the election of District Attorney Craig Watkins, who made conviction integrity a particular priority.⁶³ A nationwide study of data from the National Registry of Exonerations between 1989 and 2016 even found that Dallas County was the geographic region with the greatest likelihood of a DNA exoneration occurring.⁶⁴

C. Familial DNA

An obvious limit to the use of forensic DNA in crime-solving is the fact that the universe of potential matches for crime scene samples comprises only profiles already stored in existing databases. In cases where an unknown perpetrator has no prior record or other reason to have a profile stored, DNA has been less useful. These limitations seemingly dissolved for the first time when police apprehended the Golden State Killer (“GSK”), Joseph DeAngelo, in 2018.

The GSK was a serial rapist and murderer who terrorized California across six counties in the 1970s and 1980s.⁶⁵ Escalating from peeping Tom behavior to burglary and finally to home invasion rapes and murders, which often seemed to target couples, the GSK was responsible for at least thirteen murders and over fifty rapes.⁶⁶ While initially famous for the horrific nature of his offenses and the length of his escape from justice, DeAngelo—a former police officer—would become equally famous as the first defendant identified through familial DNA.⁶⁷

Prosecutors took genetic material preserved from the rape kits of GSK’s victims and first sent it to FamilyTreeDNA, a DTC testing company.⁶⁸ DTC companies like FamilyTreeDNA allow customers to submit their own DNA through saliva samples and receive genetic information such as countries of origin, health risks, and the names of relatives who have also submitted to the database.⁶⁹ Therefore, they contain a different and more varied range of profiles than those available in CODIS as they are unrelated to known crimes. Furthermore, the genetic profiles collected in genealogy databases, instead of consisting of STRs, are unique single nucleotide polymorphism (“SNP”) profiles.⁷⁰ These are more evenly distributed through a person’s genome than STRs and can thus carry information about a person’s physical appearance that would not be available from a profile in CODIS.⁷¹

FamilyTreeDNA created a DNA profile for the GSK’s sample which officers hoped would yield the identities of close family relations and, thus, enable them to narrow their search.⁷² That attempt yielded only distant relations and proved unhelpful in identifying the killer.⁷³ However, a civilian genealogy expert assisting the investigative team uploaded the DNA profile to another DTC company, MyHeritage, using her own personal user profile.⁷⁴ She also uploaded it to GEDmatch, a then-public site to which users could upload their DNA profiles and seek out family members for free.⁷⁵

The MyHeritage search yielded a pool of second cousins of the killer, one of whom investigators visited at her home in Orange County. She then voluntarily provided a DNA sample, which showed that the killer was related to her through other family members investigators had discovered on a third DTC site, Ancestry.com.⁷⁶ This narrowed the pool of suspects down to six men, only one of whom, Joseph DeAngelo, had blue eyes—a feature already known from the original DNA profile. After ten days of surveilling DeAngelo, investigators seized DNA-bearing evidence from his trash can, finally proving him to be the killer.⁷⁷

The GSK story raises obvious privacy concerns around the access afforded to law enforcement by the companies themselves in the first place. Immediately after DeAngelo’s arrest, an investigator confirmed only that the officers had uploaded the rape kit profile to the open-source GEDmatch site.⁷⁸ For a time, the FBI treated the three private companies as privileged confidential sources, instructing California investigators that they were not to reveal their identities as they assembled charges against DeAngelo.⁷⁹

As it turns out, the companies had widely divergent views about assisting law enforcement. FamilyTreeDNA actively assisted the FBI, giving them access to the site for investigative purposes without knowing specifically which case they were investigating.⁸⁰ Their terms of service at the time contained a warning that the company could be required to release users’ personal information in response to a “lawful request by public authorities,” and their CEO stated that he did not believe assisting the police violated this policy.⁸¹ By contrast, MyHeritage’s privacy policy contained the stronger language that information would only be released “if required by law” (suggesting the company would only release information to law enforcement in the face of a warrant or at least a subpoena).⁸² Because MyHeritage did not assist law enforcement directly but merely sold its services to a purported consumer, it arguably did not violate its own policy. Its marketing executive noted that their privacy policy “did not explicitly” address this form of access and said “[i]t is possible that the civilian geneticist thought she was not violating our terms of service.”⁸³

In the wake of the interest generated by the GSK case, most DTC companies have revised their policies to strengthen and clarify the degree of privacy to be expected vis-à-vis law enforcement. For example, MyHeritage now stipulates that “[w]e will not provide information to law enforcement unless we are required by a valid court order or subpoena for genetic information.”⁸⁴ The popular site 23andMe.com makes an even stronger statement, promising “to use all practical legal and administrative resources to resist requests from law enforcement,” though noting that under some circumstances the company “may be required by law to comply with a valid court order, subpoena, or search warrant for genetic or personal information.”⁸⁵ Furthermore, most sites now prohibit users from uploading DNA belonging to someone other than themselves or a dependent.⁸⁶ Even these strengthened policies leave somewhat open-ended the question of how hard companies will resist police requests and, specifically, whether they will take the hardline position of companies like Apple, who refuse to hand over customer data in the absence of a warrant supported by probable cause.⁸⁷ Furthermore, it is difficult to imagine how genetic companies could prevent users from uploading a third party’s DNA sample under their own name.⁸⁸

There are also two notable outliers in the privacy trend in consumer genetics. GEDmatch (now owned by the Qiagen Corporation) has taken a different approach, allowing law enforcement to upload DNA samples in cases of murder, nonnegligent manslaughter, aggravated rape, robbery, aggravated assault, or when there is a need to identify a dead body.⁸⁹ While users must actively “opt in” to have their own DNA profiles matchable by law enforcement, the site actively encourages them to do so, exhorting that users can help “provide answers to those with missing loved ones” and “enable law enforcement to solve violent crimes and exonerate the falsely accused.”⁹⁰ The GEDmatch site features profiles of crime victims identified and murders solved, along with the story of Christopher Tapp.⁹¹ FamilyTreeDNA has remained the most friendly to law enforcement, now clarifying on its site that it will allow police to create profiles to help identify bodies or perpetrators in violent crimes and requires users affirmatively to “opt out” of their data’s inclusion in such searches.⁹² The state of California now legally requires consumer genetic companies to obtain consent in this manner.⁹³

As of the end of 2022, 545 cases have been solved using familial DNA.⁹⁴ Another dimension of consumer genetic databases worth noting is their demographic differences from CODIS. Black Americans appear to be overrepresented in CODIS relative to the general population.⁹⁵ By contrast, people of Northern European ancestry are more heavily represented in consumer databases (perhaps unsurprisingly due to the uncertainty of precise ancestral origins among people of vaguely European descent).⁹⁶ One study found that at least 60% of Americans of European descent may be identifiable through a genealogical database of just 1.3 million people.⁹⁷

II. The Privacy Argument for Restricting Familial DNA

This Section will consider the privacy interests implicated by law enforcement use of familial DNA, starting with the Fourth Amendment framework protecting privacy. It will summarize the scholarly commentary arguing that warrantless familial DNA searches may violate the Fourth Amendment, as well as new state statutory protections that limit such searches. Finally, it will argue that police conducting familial searches of their own databases or of DTC databases with the consent of genetically related users raises colorable but ultimately quite weak Fourth Amendment arguments.

A. The Constitutional Dimension

The debate over familial DNA occurs at a time of high doctrinal instability around the meaning of the Fourth Amendment in a world of constantly changing technology. The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.⁹⁸

The Founders adopted the Amendment, which mirrored parallel provisions in state constitutions at the time, in response to the Crown’s use of general warrants in the Colonies.⁹⁹ Courts issued these warrants allowing Crown agents to search and seize evidence with no limitations.¹⁰⁰ In the infamous cases Entick v. Carrington (1765) and Wilkes v. Wood (1763), the Crown used these broad warrants to arrest two pamphleteers critical of the government and to seize their books and papers.¹⁰¹ Ultimately, Carrington and Wilkes won trespass suits against the relevant government.¹⁰²

With this brief history as backdrop, most early cases construing the Fourth Amendment understood it to prohibit only warrantless, trespassory interferences with property, allowing auditory surveillance by law enforcement where they did not physically intrude on the defendant’s property.¹⁰³ In the watershed 1967 case United States v. Katz, however, the Court made a change.¹⁰⁴ In Katz, FBI agents had attached a listening device to the outside of a public telephone booth in which the defendant was making a call.¹⁰⁵ Explicitly overruling prior precedent, the Court held that this constituted a warrantless search and announced a new rule: “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”¹⁰⁶ This new test for the existence of a Fourth Amendment search has become known (based on language in Justice Harlan’s concurrence) as the “reasonable expectation of privacy” test.¹⁰⁷ To apply it, courts ask, first, whether the defendant had exhibited a subjective expectation of privacy and, second, whether that expectation was “one that society is prepared to recognize as reasonable.”¹⁰⁸

While Katz ostensibly renounced the property-based trespass rule of the Fourth Amendment, the subsequent half-century of Supreme Court jurisprudence has seen, nonetheless, a doctrinal struggle between property- and privacy-based conceptions of the right. Some cases have elaborated on the reasonable expectation of privacy test, recognizing, for example, a reasonable expectation against thermographic surveillance by a heat-sensing device set up across the street from one’s home.¹⁰⁹ In other cases, the Court declined to recognize such an expectation against overhead surveillance of property by police aircraft flying at FAA-approved heights¹¹⁰ or in discarded trash set out for collection.¹¹¹ Yet, in still other cases, the Court has held that the Katz reasonable expectations test has been “added to, not substituted for, the traditional property-based understanding of the Fourth Amendment” and therefore need not apply when “the government gains evidence by physically intruding on constitutionally protected areas.”¹¹²

One rule of particular relevance to the context of familial DNA is the so-called “third-party” doctrine, which predated and survived Katz.¹¹³ The third-party doctrine states that a person has no reasonable expectation of privacy in communications they share with a third party—that the law “permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police.”¹¹⁴ The third-party doctrine has excluded from the warrant requirement scenarios in which an associate of the defendant has voluntarily worn a wire, as well as transaction records the police obtain from the defendant’s bank and call records (so-called “pen” registers) they obtain from the defendant’s phone company.¹¹⁵

Under both the property and privacy theories of the Fourth Amendment, courts have generally recognized the presumption that if police conduct does constitute a search, a warrant is required.¹¹⁶ However, the Supreme Court has also held that some searches that would otherwise be presumed to require a warrant supported by probable cause are nonetheless constitutional because “the touchstone of the Fourth Amendment is reasonableness.”¹¹⁷ In such cases, the Court weighs the defendant’s privacy interests against competing government interests, which usually happens in cases involving either categorical exceptions to the Fourth Amendment or administrative searches.¹¹⁸ The “reasonableness balancing” model of the Fourth Amendment has created categorical exceptions such as stop-and-frisks based only on reasonable suspicion,¹¹⁹ searches incident to arrest,¹²⁰ and police uses of force in cases where the officer’s actions were reasonable based on the facts confronting them.¹²¹ Using such balancing, the Court has also created administrative exceptions for wholly suspicionless searches of parolees, airport security checkpoints, sobriety checkpoints, fire code and public safety inspections, among many others.¹²²

As investigative technology has developed at a seemingly geometric rate, however, the Court has struggled to address all seemingly invasive police behavior under the privacy and property tests—especially in light of the third-party doctrine.¹²³ In United States v. Jones, the Court unanimously held that police engaged in a warrantless search by affixing a GPS tracking device to a suspect’s car to track its movements.¹²⁴ While the majority opinion rested on trespass grounds—that “[t]he Government physically occupied private property for the purpose of obtaining information” by attaching the device,¹²⁵ Justice Sotomayor’s concurrence suggested that, in the future, the digital age might make it “necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”¹²⁶ The Court also distinguished between digital data and other types of searches in Riley v. California, which dealt with the search of a suspect’s cell phone incident to arrest.¹²⁷ The Court concluded that “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” due to the wealth of sensitive information they contain about a person’s browsing history, location, relationships, and so forth.¹²⁸ It thus held that, absent an emergency, police require a warrant to search the contents of a phone otherwise properly seized incident to arrest.¹²⁹

The future that Justice Sotomayor alluded to in Jones seemed finally to arrive in 2018 with Carpenter v. United States, in which the Court made the biggest technology-reactive shift in Fourth Amendment doctrine since Katz.¹³⁰ Carpenter involved the 1994 Stored Communications Act (“SCA”), which authorized the Government to compel private companies to disclose telecommunication records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation.”¹³¹ While the SCA required that a magistrate make this determination in order for the government to obtain a subpoena, it was on a reasonable suspicion standard rather than the probable cause necessary for a warrant.¹³²

In Carpenter, the government obtained subpoenas under the SCA for weeks’ worth of cell-site location information (“CSLI”) from the defendant’s cell phone providers.¹³³ CSLI data consists of time-stamped records generated several times a minute when a user’s phone connects to a cell phone tower.¹³⁴ While it does not provide as precise of geographic data as GPS, CSLI data from a subject’s phone over a substantial period of time

provides government analysts with a broad picture of that person’s movements.¹³⁵

The government argued that the subpoenas were constitutional under the third-party doctrine; Carpenter had voluntarily shared his location information with his carriers in the same manner a person does their call record or as a person shares their financial transactions with a bank.¹³⁶ The Court rejected this argument, holding for the first time that an individual “maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”¹³⁷ Importantly (and contrary to some pre-Jones precedent),¹³⁸ the Court held that there was no distinction for these purposes between public and private movements, even if a subject’s public movements would be visible to the naked eye of someone physically following them.¹³⁹

The Court based its rule on five factors specific to the technological context of CSLI data.¹⁴⁰ First, it noted that such data is comprehensive: it provides a record of movement that is “detailed” and “encyclopedic” and constitutes “near perfect surveillance.”¹⁴¹ Second, it is intimate in the sense that a cell phone “faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”¹⁴² Third, it is inexpensive—especially compared to “traditional investigative tools” like the in-person surveillance approved in earlier third-party doctrine cases.¹⁴³ Fourth, it is retrospective in the sense that it allows the government to go back in time and investigate anyone it wishes, without having to determine an investigative target in advance.¹⁴⁴ And, fifth, it is functionally nearly involuntary, due to the fact that cell phones are “indispensable to participation in modern society.”¹⁴⁵

Some scholars have suggested that Riley and Carpenter adopt a “mosaic” theory of the Fourth Amendment—a concept the D.C. Circuit, the lower court in Jones, had originally imported from the national security context and relied on to exclude the GPS tracking data.¹⁴⁶ Under a mosaic theory, a Fourth Amendment search can arise based on police actions taken over time, even if no individual step taken in isolation would constitute a search.¹⁴⁷ Critics such as Orin Kerr argue that the mosaic theory suffers from problems of administrability and an overreliance on a subject’s probabilistic expectations of privacy, which is ill-suited to regulate electronic surveillance.¹⁴⁸ In the wake of Carpenter, lower courts have been divided over whether to formally recognize the mosaic theory as a fundamental rule of the Fourth Amendment.¹⁴⁹

These new iterations of the reasonable expectation of privacy test have sparked broader debate about Katz itself. Many critics have advocated for replacing the Katz test entirely due to its confusing and cyclical nature.¹⁵⁰ Others have argued that modern Fourth Amendment case law is actually driven by consistent principles which can now be applied to evolving technology. Matthew Tokson, for example, argues that the expectation of privacy turns on the intimacy of the area searched, the amount of information sought, and the cost of the investigation.¹⁵¹ These factors, relevant in Carpenter, are worth bearing in mind while considering how courts apply the recent Fourth Amendment precedent to DNA evidence.

B. DNA and the Fourth Amendment

Given that traditional forensic DNA technology is nearly thirty years old, it is unsurprising that much of the Fourth Amendment case law concerning it long predates Carpenter. As discussed above, early use of forensic DNA relied heavily on databases assembled by law enforcement from perpetrators and suspects who were already lawfully in custody. Broadly speaking, “intrusions into the human body” such as blood draws constitute Fourth Amendment searches.¹⁵² Yet in Maryland v. King, the Supreme Court rejected a Fourth Amendment challenge to the Maryland DNA Collection Act (“MDCA”), which allows state and local law enforcement to collect DNA samples from individuals arrested for a crime of violence, an attempted crime of violence, burglary, or attempted burglary.¹⁵³

In King, the Court recognized that the intrusion of the DNA swabbing was a search and engaged in a balancing test to determine whether it was reasonable as an administrative exception to the Fourth Amendment (and therefore not requiring probable cause of a crime likely to yield DNA evidence). Specifically, the Court balanced the defendant’s privacy interest against “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”¹⁵⁴ Noting that a search incident to arrest is a long-standing exception to the warrant requirement, the Court, nevertheless, did not invoke the doctrine directly (likely because it limits a search to what is necessary to protect officer safety, prevent escape, and preserve evidence).¹⁵⁵ Instead, the Court found that “[w]hen probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.”¹⁵⁶ Finding the intrusion on the defendant’s privacy through the physical act of swabbing for DNA to be minimal, the Court upheld the MDCA. In dissent, Justice Scalia analogized the collection of DNA from arrestees for whom there was no probable cause of a crime of violence to the general warrants of the Colonial era.¹⁵⁷

King left open many questions, such as whether DNA identification analysis of a blood sample originally drawn for a non-identification purpose (such as blood-alcohol analysis) constitutes a search.¹⁵⁸ Lower courts have found some limits to the government’s Fourth Amendment authority to perform DNA analysis on samples they’ve obtained from non-arrest contexts. For example, the Fourth Circuit has held that King did “not give a law enforcement agency carte blanche to perform DNA extraction and analysis derived from clothing lawfully obtained from the victim of a crime in relation to the investigation of other crimes.”¹⁵⁹ Similarly, an Arizona court has held that a defendant’s consent to a blood draw for testing for intoxicants did not authorize the police to create a DNA profile from the blood cells to investigate other offenses.¹⁶⁰ Federal district courts have denied government requests to conduct purported administrative DNA swabs for purposes other than the identification and safety rationales stated in King.¹⁶¹ Others, however, have allowed such explicitly evidence-gathering searches on a showing of reasonable suspicion short of probable cause.¹⁶²

While most of the existing DNA-related precedent involves clear police intrusions on the person of the subject for the purpose of collecting samples, and thus clearly trigger Fourth Amendment concerns under either a privacy or trespass conception, the use of consumer DNA databases do not involve bodily invasion. Furthermore, courts generally do not recognize a property interest in one’s DNA. In Association for Molecular Pathology v. Myriad Genetics, the Supreme Court held that isolated, naturally occurring DNA sequences could not be patented because isolating a gene is not an “act of invention.”¹⁶³ More directly on point, courts have traditionally declined to recognize a property right in one’s own genetic materials that is sufficient to support a conversion action in cases where hospitals have utilized patients’ excised cells.¹⁶⁴ Scholars argue that recognizing property rights in DNA would raise a host of problems ranging from the conceptual¹⁶⁵ to the dignitary¹⁶⁶ to the policy-based.¹⁶⁷ Critics of the status quo argue that the rise of consumer genetic companies, with the accompanying privacy concerns, necessitate property-based tools such as conversion actions to ensure good behavior and privacy practices.¹⁶⁸ At least a couple of courts have recently proved receptive to privacy-based conversion claims related to genetic information.¹⁶⁹ Five states—Alaska, Colorado, Georgia, Louisiana, and Florida—have current legislation granting people ownership of their genetic information.¹⁷⁰ Nonetheless, after Carpenter, the privacy theory of the Fourth Amendment provides a stronger foundation for the argument that familial DNA database searches trigger the Fourth Amendment.

C. The Case for Genetic Privacy post-Carpenter

The proliferating concerns over genetic privacy sparked by the rise of DTC genetics companies have been particularly salient in the law enforcement context. This Section will review arguments that law enforcement use of DTC genetic databases generally and for familial DNA searches specifically raise Fourth Amendment concerns even when third-party users consent to law enforcement access.¹⁷¹ It will also survey the state legislative responses to these concerns.

1. The Scholarly Debate

The scholarly concern over privacy issues raised by forensic DNA generally and familial DNA specifically has been widespread with the weight of commentary suggesting that warrantless familial DNA searches explicitly violate Carpenter or should at least be otherwise prohibited.¹⁷² Scholars have sought to delineate the nature of the privacy harms suffered by persons who are genetically identified through familial searches.¹⁷³ Some argue that privacy violations implicate autonomy interests and result in “people’s inability to make choices in accordance with their preferences,” a consequence with additional negative emotional effects.¹⁷⁴ Furthermore, because genetic surveillance can be both large-scale and untethered to suspicion, it can also chill the exercise of civil liberties and create the risk of discrimination and selective enforcement.¹⁷⁵

Natalie Ram, one of the leading scholars on genetic privacy, argues that, based on the factors the Court identified in Carpenter, courts should recognize a Fourth Amendment reasonable expectation of privacy in one’s own DNA, even when stored in a third-party database.¹⁷⁶ On the question of intimacy, Ram notes that genetic information is “deeply revealing” as well as “highly detailed and precise about the individual information it discloses.”¹⁷⁷ As to comprehensiveness, she notes that the sudden proliferation of consumer genetic databases and the use of genetic information in medical records—while not yet as widespread as cell phone usage—suggests that genetic analysis is a substantially growing part of users’ lives.¹⁷⁸ As to expense, Ram points out that the use of genetic data in investigations is cheap, easy, and efficient, similar to CSLI data.¹⁷⁹ Finally, as to voluntariness, she points again to the sudden proliferation of genetic databases to argue that their use “may be approaching an ‘inescapable and automatic nature’ ” in the way that cell phone use once reached fairly quickly.¹⁸⁰ She concludes that these factors all urge that there be a reasonable expectation of privacy in one’s own genetic information, even when voluntarily shared with third-party databases. Furthermore, she notes that there is a much stronger property interest in one’s own genetic information than in one’s location data—a fact seemingly supported by the user agreements of genetic sites which emphasize the user’s “ownership” of their own data, as well as the statutes in the five states that recognize it.¹⁸¹

With respect to familial DNA, the argument, of course, becomes more complicated due to the fact that an individual’s genetic information could be accessed through a third party voluntarily sharing their information—not only with the database itself but also through “opting in” or choosing not to “opt out” of sharing with law enforcement. Ram argues that in such cases, the target of the investigation who is indirectly identified through a family member’s DNA cannot be said to have voluntarily consented to the search, due to the fact that: (1) genetic relatedness is intrinsically involuntary and (2) people rarely have control over the decision-making of even near relations, much less the distant relations through which investigative matches often occur.¹⁸² She thus concludes that, while a law enforcement search of a consumer database for a direct match, voluntarily shared, may be appropriate, searches for indirect matches through third-party relations is not.¹⁸³

2. Legislative Responses

In the U.S., sixteen states have explicitly allowed law enforcement to conduct familial DNA searches, though often with policies limiting the usage to serious crimes or cases in which the public safety is at risk.¹⁸⁴ Other states, however, have passed statutes greatly limiting such searches. The District of Columbia and Maryland bar familial DNA searches of the states’ own DNA databases.¹⁸⁵ As to consumer databases, Maryland also has the most detailed statute to date, requiring judicial authorization based on a sworn affidavit by law enforcement with approval of the relevant prosecutor.¹⁸⁶ Familial DNA searches will only be authorized when the crime is murder, rape, a felony sexual offense, or an act presenting “a substantial and ongoing threat to public safety or national security.”¹⁸⁷ Furthermore, law enforcement must first attempt to identify a suspect through CODIS, as well as to first pursue “reasonable investigative leads” that ultimately fail to identify them.¹⁸⁸ The law also limits law enforcement to databases that provide explicit notice to users that law enforcement may use it and that “seeks acknowledgement and express consent from its service users” regarding this possibility.¹⁸⁹

Montana’s statute, while more vaguely drafted, appears to severely limit familial DNA searches. It provides that “[a] government entity may not obtain familial DNA search results or search results from partial matching from the [state-maintained] DNA identification index or a consumer DNA database without a search warrant issued by a court on a finding of probable cause.”¹⁹⁰ It has another provision requiring the government to obtain a warrant even for direct searches of consumer database users, unless “the consumer whose information is sought previously waived the consumer’s right to privacy.”¹⁹¹ If Idaho had such a statute during Christopher Tapp’s post-conviction proceedings, he would likely remain in prison, as no probable cause would have existed at the time for the Idaho Falls Police to have assisted his family by searching for the DNA of the neighbor who was ultimately identified. In many cases, police could establish probable cause that the owner of the unidentified sample committed a crime (as, for example, when semen is found in the body of a rape victim). At other times, such as when there are large numbers of DNA samples found at a scene, this might be impossible. Furthermore, probable cause must exist for the specific area to be searched.¹⁹² It would often be a preventative burden for police to have to establish probable cause that relatives of the perpetrator have created a searchable account with a particular ancestry site, which would be necessary to establish probable cause that the database contained evidence of a crime.

D. The Fourth Amendment Argument Against Familial DNA Searches is Weak

Any attempt to evaluate the strength of the Fourth Amendment argument against law enforcement use of familial DNA is necessarily complicated by the current instability of Fourth Amendment doctrine generally. Nonetheless, this Section will show that, whichever Fourth Amendment theory one subscribes to, the argument is fairly weak.

With respect to DTC databases in which users have opted in to sharing with law enforcement, the relevant rule is that consensual searches do not require warrants or any degree of suspicion to be reasonable under the Fourth Amendment.¹⁹³ It is therefore clear that if Person A submits their DNA sample to MyFamilyTree, opts in to law enforcement searches, and is subsequently identified as a match to a crime scene sample, no constitutional issues arise. If the DNA of said Person A leads the investigators indirectly to their Grandpa B, however, Grandpa may argue—with Ram and other scholars—that his privacy rights were violated because he did not consent to the search that led to his DNA. One possible response is that, at a physical level, it was not Grandpa’s genetic sample that was searched. In Fourth Amendment law generally, a defendant does not have standing to object to the violation of a third party’s constitutional rights.¹⁹⁴ If only Person A was searched, Grandpa has no standing to object. This same argument would apply to familial searches of lawfully collected samples in police databases.

Critics argue, however, that the pervasiveness of technology should change existing Fourth Amendment principles and that there is functional identity between one person’s DNA and their family member’s, which should change our understanding of standing in these cases. As discussed above, Ram makes a good argument that genetic data obtained through familial searches meets the Carpenter factors insofar as it is intimate, comprehensive, and inexpensive, as well as involuntary from the perspective of the family member ultimately identified.¹⁹⁵ Yet there are some compelling counterarguments. As to the intimacy of the data, Jasper Monroe-Jones notes that—unlike location or cell phone data—DNA “cannot reveal anything about a person’s actual actions, conduct, or character” but only, if anything, predisposition to various traits or diseases.¹⁹⁶ This point is even stronger when coupled with the fact that law enforcement officials who access consumer DNA sites only access the same identification information as other users, which does not include intimate information such as propensity for physical or psychological diseases.¹⁹⁷ While it would be theoretically possible for law enforcement to reconstruct such intimate information from the information they can obtain, states could pass laws specifically prohibiting this practice, which the U.S. Department of Justice’s current Interim Policy on Forensic Genetic Genealogy already does.¹⁹⁸ In short, a DNA match in a DTC database only provides one significant piece of information: the fact that a person or their family member was present at the place from which a sample was recovered.

Furthermore, critics may overstate the “inexpensiveness” of familial DNA searches—while putting a DNA sample into a consumer database may be easy, the process of building out family trees based on genetic relationships requires an expert in genetic genealogy and may take months.¹⁹⁹ For now, at least, this process is not realistically comparable to looking at a map of cell tower pings. That said, due to the need for Fourth Amendment doctrine to be durable in the face of evolving technology, it should still be assumed that this technology may become less expensive in the future.

With the specific Carpenter factors only partially apposite to the problem of familial DNA, it is worth recurring to the test Carpenter attempts to apply: reasonable expectation of privacy. While it seems clear that Grandpa B cannot consent to Person A’s voluntary release of their genetic material to law enforcement, can it be said that he has a reasonable expectation of privacy in another person’s body? No authority recognizes such an expectation, which would need to be strong enough to overcome standing principles.²⁰⁰ It is a weak argument that, even if there is no reasonable expectation of privacy in personal genetic material left in another person’s bathroom, there should be a reasonable expectation of privacy in another person’s own genetic material that happens partially to match one’s own. As critics of the Katz test’s inherent circularity might note, with the increased public awareness of DNA science, such an expectation of privacy is even less reasonable than it might have been in, say, 1985.²⁰¹

In addition, the preceding sections have made it clear that trespass-based theories of the Fourth Amendment provide even less traction for constitutional objections to familial DNA searches than does the Katz test. Clearly, a search of Person A’s sample (or the data it generates) is not a search of Grandpa B’s “person,” and most existing authorities hold that neither party has a property interest in the genetic sequence itself. Indeed, Greenberg v. Miami Children’s Hospital arose in Florida—one of only five states with statutes that recognize some form of property interest in genetic test results—and the court nonetheless held that the statute did not create a genetic property interest sufficient for establishing a conversion action.²⁰² That said, as Jessica Roberts notes, at least a couple of courts have very recently shown receptiveness to conversion claims based on privacy violations involving a plaintiff’s own genetic material.²⁰³

At the end of the day, there are colorable arguments on both sides of the question. As Ram argues, there is a mismatch in consent between the DTC user and the familial relation ultimately identified. Yet that mismatch complements another one: the mismatch in the sensitivity of the information consensually revealed about the initial user (including their immediately accessible name and contact information) and the information about the ultimately identified, distant relation (the match to a specific crime scene sample, established only after extensive analysis). Given the unique accuracy value of what such a search would reveal—near-certain presence at a crime scene—one could argue for a wholesale DNA carveout to the Fourth Amendment. In such cases, one might say that the crime-solving interests of law enforcement are particularly high relative to the interests of the suspect (privacy in the specific fact of having been at a crime scene). Entertaining such an argument, however, would require engaging in higher-level debates about the nature of the Fourth Amendment generally, which is beyond the scope of this paper.

The next Part will focus instead on one specific countervailing interest: the liberty interest of the falsely accused who could be exonerated through the availability of familial DNA searches to law enforcement. For constitutional purposes, the Due Process rights of this party must be weighed against the Fourth Amendment rights of a third party, and they must be weighed particularly heavily against any sub-constitutional privacy justifications for statutory restrictions on familial DNA searching.

III. The Due Process Rights of the Innocent Suspect

This Part will argue that a falsely accused suspect has a colorable due process right in the availability of familial DNA testing. If a legislature or court were to impose a ban or probable cause requirement that could effectively preclude law enforcement from using familial DNA to identify unknown third-party suspects, it would impinge on already narrow, yet still cognizable, due process rights designed to protect innocents. The same would be true of any statute preventing private parties, including defendants, from conducting such searches. These rights derive from three sources, which this section will consider in turn: the Compulsory Process Clause, the Due Process right to exculpatory evidence, and the Due Process right to post-conviction relief procedures.

A. The Compulsory Process Clause

The Sixth Amendment guarantees a criminal defendant, among other trial rights, the right “to have compulsory process for obtaining witnesses in his favor.”²⁰⁴ Unlike other Sixth Amendment rights, the Compulsory Process Clause is undertheorized and often overlooked by litigators.²⁰⁵ The case law on the Clause has been contradictory and confusing, alternating between the rule that it stands for the “accused’s ‘right to present a defense’ ” and the idea that it should be subordinate to statutory rules of evidence, such as the rules governing the admissibility of expert testimony, which apply to all litigants alike.²⁰⁶ It is also limited by the limits of the judicial power itself, which does not extend to the “executive” functions of the police and the prosecution.²⁰⁷

The constitutional idea of compulsory process has its origins in the burgeoning trial rights Parliament enacted in the late seventeenth and early eighteenth centuries, specifically for defendants accused of treason.²⁰⁸ Trial rights in the American colonies initially paralleled and eventually surpassed their British counterparts in scope.²⁰⁹ Pennsylvania recognized the most expansive rights; its Charter of Privileges, authored by William Penn, provided that “all criminals shall have the same Privileges of Witnesses and Council as their Prosecutors.”²¹⁰ At the time of the Founding, defendants’ trial rights within an adversary system were seen as a means of offsetting the power of the government.²¹¹ Importantly, trial rights also protect truth-generation, and historical commentators emphasize their function of ensuring that innocent defendants are not convicted.²¹²

The Subpoena Power

At the time the Bill of Rights was drafted, nine state constitutions included some sort of right for criminal defendants to call witnesses but only two, Massachusetts and New Hampshire, included the subpoena power.²¹³ Nonetheless, Congress adopted Madison’s draft language for the Sixth Amendment, including the subpoena power, with no discussion.²¹⁴ While the Supreme Court would not formally consider the scope of the Compulsory Process Clause until the twentieth century, Chief Justice John Marshall, sitting as trial judge in the 1807 treason trial of Aaron Burr, would have the occasion to demonstrate his own understanding.²¹⁵ Marshall approved a pre-indictment request for a subpoena of documents in the possession of President Thomas Jefferson without requiring the defense to pre-determine which ones might be material at trial.²¹⁶

The access to subpoenas of third-party witnesses and documents formally granted to most criminal defendants by state and federal rules of criminal procedure is notably narrower than what Justice Marshall understood compulsory process to require.²¹⁷ To avail themselves of the court’s subpoena power under Federal Rule of Criminal Procedure 17(c), a defendant must show that the evidence sought has “specificity,” “relevancy,” and “admissibility.”²¹⁸ A minority of circuits have followed Justice Marshall and held that the admissibility test requires only that evidence be potentially admissible at trial under the rules of evidence.²¹⁹ A majority, however, have applied a strict admissibility test, which requires a defendant to establish that the items sought are actually admissible before a subpoena will be enforced.²²⁰ Many states have similarly strict requirements.²²¹

While proponents of the strict admissibility requirement often describe it as necessary to prevent a defendant from going on a “fishing expedition,”²²² critics point out that it foils the purpose of the Compulsory Process Clause.²²³ The defendant may never have seen the evidence sought and therefore be unable to explain how it is admissible, and in many cases, inadmissible evidence may be necessary to obtaining other admissible, exculpatory evidence.²²⁴ The rule in force in a given jurisdiction would therefore dictate whether, in a case where unidentified third-party DNA is recovered at a crime scene, the defendant could avail themself of the subpoena power to seek familial matches in a consumer database. In most cases, it would be impossible to tell in advance whether any matches would exist at all. If they did, they would be more likely to lead to relevant evidence after further testing, rather than be admissible in and of themselves. Regardless, even in a jurisdiction with a potential admissibility rule, statutes limiting familial DNA searches could fully thwart defendants’ right to compulsory process for securing evidence. For example, Maryland’s rule prohibits any “person” from conducting a familial search of the state DNA database, which would apply to defendants as well as state actors.²²⁵

The Right to Present a Defense and its State-Rule-Based Limitations

Another contested question regarding the Compulsory Process Clause is whether, beyond the right to subpoena witnesses, it gives defendants affirmative rights to put witnesses and evidence on the stand. If so, this would be a colorable basis for arguing that a defendant has a constitutional right to present familial DNA evidence—superior to any state-law prohibitions regulating DNA and at least equal to the Fourth Amendment rights of the identified parties. In 1967, the Supreme Court considered this question for the first time in Washington v. Texas, when it considered the constitutionality of two Texas statutes preventing a criminal defendant from offering the testimony of a person charged or convicted as a co-conspirator for the charged crime.²²⁶ The Court first held that the compulsory process right is so fundamental to a fair trial that it is incorporated against the states by the Due Process Clause of the Fourteenth Amendment.²²⁷ It then concluded that it includes the right to “present a defense” to the jury:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.²²⁸

The Washington Court’s test for whether a state evidentiary rule violates this right is whether it is “arbitrary,” holding, in this case, that Texas “arbitrarily denied [the defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.”²²⁹ In so doing, the Court noted that the Texas laws had deep common law roots in a rule that once totally barred defense witnesses, which was abolished by the Sixth Amendment but lived on in the form of various restrictions on the testimony of co-defendants.²³⁰

Washington would be the first of three cases in which the Supreme Court held that the Compulsory Process Clause gave the defendant a broad right to present evidence that is “relevant and material” to telling their side of the story, over state rules that are “arbitrary or disproportionate” to their purpose.²³¹ These cases explicitly emphasize the Compulsory Process Clause’s purpose of assisting the jury in the search for truth.²³² As Janet Hoeffel notes, Washington and its progeny appear to stand for the proposition that the accused’s right to present a defense is a significant one.²³³ When there is a clash between the defendant’s right to compulsory process and some state evidentiary rule—even one, as in Washington, based in common law—and the opponent of the evidence can test its reliability through the adversarial process, these cases all hold that “the Constitution prefer[s] that the jury hear the evidence.”²³⁴

In other cases, however, the Supreme Court appears to subordinate the defendant’s right to put on a case to state laws—to “shrink,” as Hoeffel puts it, “the right to little more than a right to put on evidence, as long as it comports with the rules of evidence.”²³⁵ For example, in Chambers v. Mississippi, the Court decided for the defendant, holding that the combination of Mississippi’s hearsay rule excluding statements against penal interest and its so-called “ ‘voucher’ rule,” preventing a party from impeaching its own witness, violated Due Process.²³⁶ In doing so, however, the Court did not ask the general question it asked in Washington and its progeny—whether the Mississippi rule was “arbitrary” or “disproportionate” to its stated goal of preventing perjured or unreliable testimony. Instead, it turned to the facts of the specific case and determined that the out-of-court statements at issue had “considerable assurance of their reliability.”²³⁷

The Supreme Court further refined its compulsory process rule in cases unrelated to the reliability of evidence. United States v. Valenzuela-Bernal involved the pre-trial deportation of a possible defense witnesses—a context more analogous to statutory preclusion of defendants’ access to familial DNA searches. The Court held that to establish a violation, a defendant “must at least make some plausible showing of how [the excluded] testimony would have been both material and favorable to his defense.”²³⁸ Then, in Taylor v. Illinois, the Court—while reemphasizing that the Sixth Amendment provides a defendant not only the right to subpoena witnesses but also the right to put them on the stand—rejected the defendant’s argument that such a right to exculpatory evidence is absolute.²³⁹ It held that the accused “does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence” and noted that “the trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses’ testimony.”²⁴⁰ On that basis, the Court held that the trial court did not violate the Compulsory Process Clause by excluding a defense witness when it found that the defendant had willfully failed to disclose the witness in an attempt to obtain a tactical advantage that would minimize the effectiveness of cross examination.²⁴¹

In practice, the circuits have routinely engaged in fact-specific analysis to uphold trial courts’ exclusion of defense evidence as not arbitrary or disproportionate, or on the grounds that the excluded evidence was not material or favorable.²⁴² Even under a narrow view of the rule, however, it seems a criminal defendant who can show the existence of material, favorable DNA evidence has a Compulsory Process right for the court to subpoena that evidence. In practice, this would require that the defendant receive a crime scene sample from the prosecution as Brady material and obtain a subpoena from the court to allow the defense to upload it to a consumer DNA database, regardless of the database’s privacy policies.

In a case involving an unknown, third-party genetic sample found at a crime scene, the defendant has an argument that any potential matches to that profile are material in the sense that they would make the identity of a particular perpetrator other than the defendant more or less likely. The challenge, of course, would be in showing that potential DNA matches in a consumer database are likely to be favorable to a defendant. In most cases, this could not be known reliably ahead of time because the third-party sample could come from someone easily explained away as innocently present at the crime scene. Furthermore, it could not even be known ahead of time whether a consumer database would provide a familial match at all. Finally, even if a database did contain a familial match, the defense would need an expensive genetic expert to build out a profile of the actual perpetrator from the data of whichever family member had made their identity public. However, the fact that a right is difficult to realize in practice does not in and of itself allow the government to violate it.

Constitutional Limitations

Another obstacle for a defendant seeking to make a compulsory process argument for the right to subpoena familial DNA evidence comes from the constitutional separation of powers. The Compulsory Process Clause governs a defendant’s rights at trial, not during the course of a police investigation. Courts have largely recognized the right to present a defense as implicating judicial, rather than executive, branch powers.²⁴³ This distinction has extinguished compulsory process clause arguments in situations in which the law limits defendants’ ability to conduct investigations for themselves.

For example, as Rebecca Wexler has noted, in cases involving extraterritorial investigations, courts have held against compulsory process challenges the asymmetries between law enforcement and defense investigators created by Mutual Legal Assistance Treaties (“MLATs”).²⁴⁴ An MLAT is a bilateral treaty that commits the signatory nations to reciprocal cooperation in criminal investigations, including waiver, where relevant, of privacy laws that would otherwise prevent the transfer of evidence across borders.²⁴⁵ MLATs do not, however, provide for defense subpoenas of material protected by such privacy laws, which puts it out of the reach of compulsory process. As one federal court put it, “the right to compulsory process . . . cannot be stretched to include compelling the invocation of treaty process powers available only to the Executive Branch.”²⁴⁶

Courts have applied similar logic in cases involving conflict between the asserted Sixth Amendment compulsory process rights of a defendant and a potential defense witness who asserts their Fifth Amendment privilege against self-incrimination. Trial courts are deemed to have a duty to protect the witness’s Fifth Amendment right, and if a trial court sustains a witness’s assertion of the privilege, the defendant lacks the right to force the witness to take the stand only to assert the privilege.²⁴⁷ If the witness has already testified for the prosecution and asserts the privilege on cross-examination, however, the trial court may strike the direct examination testimony if it finds a “substantial danger of prejudice by depriving [the defendant] of the ability to test the truth of the witness’s direct testimony.”²⁴⁸ Otherwise, the case law establishes that in such situations of competing constitutional rights courts have no authority to either compel the government to grant immunity to a defense witness or to grant such immunity themselves.²⁴⁹ This rule appears based on the idea that immunity is “pre-eminently a function of the Executive Branch.”²⁵⁰

The MLAT and Fifth Amendment examples suggest that when a statute or competing constitutional right prevents a defendant from fully realizing their compulsory process right, compulsory process is subordinate, and courts even lack the authority to force the government to take “executive” measures to allow the defendant the same end-runs around such rules that the government is allowed to take for itself. The case law is more conflicted when the question presented is whether the Compulsory Process Clause requires a court to compel a witness to give testimony protected by attorney-client privilege. Such cases involve a clash between the constitutional right of the defendant and the statutory right of the witness. The most recent Supreme Court case to touch this question, Swidler & Berlin v. United States, left it unresolved.²⁵¹ In this case, the court held that attorney-client privilege survives a client’s death, but left open the question of whether “exceptional circumstances implicating a criminal defendant’s constitutional rights might warrant breaching the privilege.”²⁵² Since then, a minority of courts have held that that a defendant’s Sixth Amendment rights (confrontation as well as compulsory process) require the court to pierce attorney-client privilege when the witness’s testimony is material.²⁵³ Other courts categorically subordinate the compulsory process right to “traditional testimonial privileges,” in a logic similar to that of the Supreme Court in Chambers.²⁵⁴ Still, other courts will engage in some sort of balancing to determine whether the compulsory process right pierces the privilege.²⁵⁵

The context of the Stored Communications Act (“SCA”) ostensibly provides an example most relevant to the context of familial DNA. Courts have interpreted the SCA to categorically bar defense counsel from subpoenaing U.S. service providers for users’ stored electronic communications regardless of how exculpatory the potential evidence might be, while expressly permitting law enforcement to subpoena such information.²⁵⁶ The government’s subpoena power under the SCA is now, as discussed above, limited by Carpenter, thus lessening the adversarial asymmetry between prosecution and defense. Even after Carpenter, however, some courts have suggested in dicta that a categorical bar on criminal defense subpoenas for electronic communications under the statute might impinge on a defendant’s right to compulsory process under certain circumstances, though none have reached the issue.²⁵⁷ A similar argument would seem to apply to a defendant being statutorily barred from subpoenaing relevant familial DNA evidence from a consumer site.²⁵⁸

Conclusions on Familial DNA and Compulsory Process

In a case like Christopher Tapp’s, an innocent defendant would benefit from the ability to run an unidentified third-party DNA sample through a database to seek matches—direct or familial—that suggest other suspects.²⁵⁹ To the extent that the companies’ own privacy policies barred individuals from uploading DNA other than their own, this would likely require a court-issued subpoena to effectuate. In jurisdictions following the “strict admissibility rule,” the defendant would likely be unable to meet the admissibility requirement because it would be impossible to prove ahead of time that such a database would in fact contain matches relevant to the case. In jurisdictions following the “potential admissibility rule,” they would likely fare better. Either way, a rule like Maryland’s—which prohibits even defendants from conducting familial DNA searches, at least in police databases—wholly extinguishes the right to compulsory process for this type of evidence.

Privacy law scholars have called for an equivalent to the SCA to protect consumers’ genetic information,²⁶⁰ yet courts have noted in the SCA context that the total unavailability of a category of evidence due to lack of subpoena power raises Compulsory Process issues. Critics note that the current admissibility requirement in the subpoena rules of most jurisdictions raises a similar problem, broadly speaking.²⁶¹ Should states pass consumer DNA statutes that wholly bar access to such evidence by defendants, these issues would be compounded, and the Sixth Amendment impairment would be even greater. A defendant has a colorable argument that such a statute would be “arbitrary or disproportionate,” under Washington, to its privacy goal.

B. The Due Process Right to Exculpatory Evidence

The Sixth Amendment right to obtain judicial assistance in securing evidence from third parties is, as we have seen, severely limited. However, the Supreme Court has also recognized a Fourteenth Amendment due process right to the government’s exculpatory investigative materials that is distinct from—and broader than—the compulsory process right.²⁶² Brady v. Maryland held that due process requires that a prosecutor turn over to the defendant all material, exculpatory evidence in their possession.²⁶³ It further held that failure to do so violates due process even when the prosecutor is not acting in bad faith.²⁶⁴ Subsequent cases confirmed that evidence tending to impeach prosecution witnesses constitutes material, exculpatory evidence for Brady purposes.²⁶⁵ Regardless of whether the defense requests the evidence, favorable evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”²⁶⁶ Restated, the test is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”²⁶⁷ However, evidence is not considered “ ‘suppressed’ by the government when the defendant has access to the evidence before trial by the exercise of reasonable diligence.”²⁶⁸

1. Brady and DNA

The Supreme Court has emphasized that the prosecutor has a duty to learn of any favorable evidence known to “the others acting on the government’s behalf,” such as the police.²⁶⁹ It is currently uncertain to what extent a defendant has a Brady right to evidence of a third-party’s DNA from a CODIS search conducted on DNA found at a crime scene.²⁷⁰ The sparse case law dealing with such claims has rejected specific arguments on their own facts, finding that the prosecution’s failure to disclose CODIS hits under the circumstances could not be “taken to put the whole case in such a different light as to undermine confidence in the verdict.”²⁷¹ Nonetheless, the reasoning in those cases indicates that if the defendant can show materiality, CODIS hits are subject to disclosure under Brady.

Brady and its progeny apply to exculpatory evidence that remains in the government’s possession, but a separate line of cases governs situations in which the government no longer possesses the evidence in question.²⁷² In California v. Trombetta, the Court held that a defendant complaining of a state’s failure to preserve evidence must show, first, that the evidence “possess[es] an exculpatory value that was apparent before the evidence was destroyed” and, second, “[is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”²⁷³ Subsequently, the Court added a third element to this test in Arizona v. Youngblood, holding that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.”²⁷⁴ Numerous states have since adopted statutes requiring law enforcement to preserve DNA evidence.²⁷⁵ The government’s failure to preserve evidence when there is a duty to do so gives rise to a due process violation under some state constitutions if the evidence is material.²⁷⁶

Youngblood also said in dicta that there is no due process right to the government using any “particular investigatory tool,” including quantitative testing, to secure exculpatory evidence.²⁷⁷ This makes it unclear whether a defendant has a Brady right to require police to upload unidentified third-party samples into CODIS to search for exculpatory hits. The argument is that, due to the cooperation between local prosecuting authorities and the federal government, which runs CODIS, any data in the database could qualify as evidence “known to” others acting on “the government’s behalf.”²⁷⁸ Some courts have adopted this reasoning despite Youngblood.²⁷⁹ Others have rejected such claims but only because of a defendant’s failure to show that the testing would have been favorable to the defendant.²⁸⁰ Yet others have construed Youngblood to mean that Brady does not include the right to CODIS searches.²⁸¹ Regardless, some states have allowed these defense-initiated searches through statute,²⁸² and individual laboratories have varying policies, some of which provide for running searches for the defense.²⁸³

In District Attorney’s Office v. Osborne, the Supreme Court made clear that there is no substantive due process right for criminal defendants to access DNA testing.²⁸⁴ In Osborne, the defendant was convicted of kidnapping and sexual assault even though restriction-fragment-length-polymorphism DNA testing had not been performed on semen found in a condom at the scene of the crime.²⁸⁵ In a 1983 action, Osborne argued that he had a substantive due process right to the state’s evidence for the purposes of applying new DNA testing technology that might prove him innocent.²⁸⁶ The Court rejected that claim on the grounds that “[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive due process rulemaking authority would not only have to cover the right of access but a myriad of other issues.”²⁸⁷

A defendant objecting to the suppression of DNA evidence during the discovery process, thus, only has a few clear constitutional arguments. A defendant might be able to argue that a CODIS hit on a third party from samples taken at the crime scene was material and exculpatory under Brady if they can pass the rather high bar of showing a reasonable probability that the outcome would have been different had it been disclosed. Christopher Tapp, whose own DNA was not found at the crime scene despite the presence of semen from other unknown sources, might have had such an argument if the other sources had been identified but undisclosed. A more challenging case arises when the government conceals the existence of testable samples of biological material that it had not itself tested. Osborne dealt only with the post-conviction context, and thus did not foreclose a procedural due process argument, under Brady, that a defendant has a right to know about untested samples. It would simply be extraordinarily difficult for a defendant to demonstrate the materiality of as-of-yet untested biological samples. Furthermore, Youngblood implies that the argument that Brady compels the state to affirmatively test unidentified third-party samples itself may be quite weak, despite some case law to the contrary.

2. Conclusions on Brady and Familial DNA

Brady applies only to evidence known to the government, which would seem to render it irrelevant to un-searched consumer DNA databases. Even the strongest view of Brady emerging from the case law only requires the government to run searches within CODIS, which includes government-controlled databases. As a practical matter, however, the very existence of Brady doctrine renders consumer databases a powerful and promising new source of exculpatory evidence for criminal defendants. Brady requires that law enforcement turn over evidence of potentially culpable third parties generated by the familial DNA searches they conduct. Thus, preventing law enforcement from accessing consumer databases without probable cause effectively deprives innocent defendants of critical exculpatory evidence.

The reality is that police and prosecutors have independent motivations to bring the correct guilty party to justice. Some prosecutors even pursue this duty post-conviction, as evidenced by the rise of Conviction Integrity Units and examples of cooperation between the government and the defense that have led to DNA exonerations as technology has improved.²⁸⁸ Given the obstacles discussed in the prior Section that prevent defendants from subpoenaing familial matches from consumer databases, law enforcement access may be the only meaningful way for the defense ever to obtain it. This is particularly true given the exceedingly high costs of using a familial DNA hit to build out a family tree and identify the actual party who left the sample at the crime scene. Even if a defendant obtained an unnamed third-party sample from the government through a conventional Brady disclosure and also obtained a court order to input the sample into a consumer database, most defense teams would lack the resources to hire the forensic experts necessary to do anything useful with the results.

This reality also sits in significant tension with the holding of another watershed Due Process case, Ake v. Oklahoma.²⁸⁹ In Ake, the Supreme Court held that the Fourteenth Amendment requires that indigent defendants raising the insanity defense be provided with state-funded psychiatric experts to examine them and testify on their behalf.²⁹⁰ The Ake Court balanced several factors: the private interest affected by the state action, the governmental interest affected if the safeguard were provided and the probable value of the procedural safeguards sought, and the risk of an erroneous deprivation of the affected interest if they were not provided.²⁹¹ On the third point, the Court found that in the absence of a qualified psychiatric expert, “the risk of an inaccurate resolution of sanity issues is extremely high.”²⁹² Despite similar accuracy concerns raised by DNA evidence, there is no parallel right to a state-funded forensic expert.²⁹³ This means that even when the government hands over testable biological material to the defense, an indigent defendant’s counsel may still lack the means to have it tested.²⁹⁴

All considered, as a formal matter, a law or constitutional holding severely restricting law enforcement access to familial DNA searching would most likely not violate Brady as courts have construed it. Yet, by effectively blocking the defense’s access to potentially valuable exculpatory evidence and to the state’s resources for testing it, such laws would indirectly burden the due process values implicated by both Brady and Ake. In trying to protect the privacy interests of guilty parties, such a rule would inadvertently impact the liberty interests of innocent ones.

C. Due Process Rights to Post-Conviction Proceedings Under State DNA and Innocence Statutes

The Lack of Constitutional Innocence Claim

The third potential source of due process rights related to familial DNA involves post-conviction appeals on the grounds of innocence. This landscape is governed substantively by the Supreme Court’s 1993 decision in Herrera v. Collins, which narrowly held that a convicted petitioner’s claim of actual innocence does not state a ground for federal habeas relief, absent some independent constitutional violation during the state proceeding.²⁹⁵ In dicta, the Court left open the possibility that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.”²⁹⁶ The Court emphasized that “the threshold showing for such an assumed right would necessarily be extraordinarily high.”²⁹⁷ A few years later in Schlup v. Delo, the Court reaffirmed that no constitutional claim of innocence exists, but it also held that a showing of actual innocence may allow a habeas petitioner to avoid the procedural bar on other, defaulted constitutional claims.²⁹⁸

The Court finally addressed the issue of DNA in post-conviction appeals in the 2006 case House v. Bell.²⁹⁹ Paul House was convicted and sentenced to death in Tennessee for the 1985 murder of his neighbor, with the jury finding as an aggravating factor during the death phase that the murder was committed in the course of a rape or a kidnapping.³⁰⁰ At trial, the prosecution introduced primitive forensic evidence showing that the semen on the victim’s nightgown was consistent with House’s and that the blood on House’s pants was consistent with the victim’s, but not his own.³⁰¹ The forensic expert testified that the blood sample on the pants excluded 93% of the white population.³⁰² One of the government’s expert witnesses acknowledged that the state did not provide saliva samples from the victim’s husband, which would have helped to determine his secretor status and, thus, whether he too could have been a potential source of the collected semen.³⁰³

After his conviction, House filed a state habeas petition based on ineffective assistance and faulty jury instructions.³⁰⁴ When the trial court dismissed the petition, House appealed, but only on the jury-instructions ground.³⁰⁵ After House’s conviction was affirmed, he filed a second state habeas claim for ineffective assistance and sought investigative and expert assistance.³⁰⁶ The Tennessee Supreme Court held that these claims were barred by a statute providing that claims not raised in prior post-conviction proceedings are procedurally defaulted.³⁰⁷ On federal habeas, the Eastern District of Tennessee held an evidentiary hearing to determine whether House fell within the “actual innocence” exception to the procedural default rule recognized in Schlup. Holding that he had failed to demonstrate actual innocence, the Court denied relief, and a divided Sixth Circuit ultimately affirmed.

The Supreme Court granted certiorari to determine, as required by Schlup, whether, in light of new evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” in cases where a prisoner asserts innocence to avoid a procedural default.³⁰⁸ The Court reviewed the new evidence, which reflected the dramatic evolution in DNA technology between 1985 and 2006. First, it noted that DNA testing established that the semen on the victim’s nightgown and panties came from her husband and not House.³⁰⁹ It noted that this would remove sexual assault as a potential motive for the crime and cast doubt on the jury’s finding of rape as an aggravating factor for sentencing.³¹⁰ Second, it considered the testimony of an Assistant Chief Medical Examiner for the State of Tennessee that indicated that the blood found on House’s pants was chemically too degraded and too similar to blood collected during the autopsy to have come from the victim’s body on the night of the crime.³¹¹ He concluded that the stains were more likely to have been spilled from vials containing autopsy samples.³¹² On the basis of all of this evidence, the Court concluded that “although the issue is close [due to other, non-forensic evidence] . . . this is the rare case where—had the jury heard all the conflicting testimony—it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.”³¹³ The Court then remanded for consideration of the merits of House’s ineffective assistance claims.³¹⁴ While the prosecutor initially vowed to retry House if he successfully overturned his conviction, the prosecutor later dropped the charges after subsequent developments in DNA technology revealed an unknown perpetrator.³¹⁵ House had spent over twenty-two years on death row.³¹⁶

While House presents a rare case in which evidence of actual innocence had constitutional relevance in a federal habeas appeal, it is important to note how narrow a gateway the case represents. House’s substantive appeal was premised not on innocence but on ineffective assistance under the Sixth Amendment—a distinct constitutional error as required by Herrera. As in many similar cases, House was attempting to argue that his counsel had been ineffective in failing to discover and present exculpatory evidence at trial.³¹⁷ Under Strickland v. Washington, a petitioner can make out an ineffective assistance claim if they can show a reasonable probability that counsel’s poor performance prejudiced the outcome.³¹⁸ However, the Strickland test is explicitly deferential to the judgment of counsel, and courts will evaluate the reasonableness of attorney decisions ex ante, from the perspective of counsel at the time the decisions were made.³¹⁹ It is often the case that—particularly given evolving technology—the absence of exculpatory DNA evidence at trial cannot be attributed to counsel’s ineffective assistance. In such cases, given Herrera, a petitioner has no constitutional grounds for an appeal.

State Post-Conviction Statutes

As discussed in Part I, in response to political demand and the lack of existing remedies, all U.S. states and the federal government have now enacted statutes providing some sort of right to post-conviction DNA testing and for vacatur of sentence on demonstration of innocence.³²⁰ Rules of finality have likewise been displaced by statute in order to permit motions based on new evidence of innocence.³²¹ As Brandon Garrett shows in a taxonomic study of such statutes, however, most statutes create various procedural hurdles that a petitioner must surmount before obtaining testing.³²²

Some states focus on the outcome and require a showing that the DNA evidence is at least probative of innocence or, more strenuously, “material,” meaning that “a reasonable probability exists that the petitioner would not have been convicted if exculpatory results had been obtained through DNA testing.”³²³ Garrett notes that such tests would not be insurmountable if interpreted “to simply require that the DNA testing could be probative of innocence” but points out that some courts will “construct flimsy hypothetical scenarios and then hold that, if there exists even a possibility that DNA testing might not exculpate, it should not be granted.”³²⁴

Some states limit post-conviction innocence relief to DNA testing alone, precluding other sorts of scientific evidence of innocence, and others limit the relief only to technology unavailable at trial.³²⁵ A majority of states limit DNA testing to cases involving serious or violent crimes.³²⁶ Many states require that the petitioner be in custody to seek relief.³²⁷ Some exclude those defendants who pled guilty, and some specify that identity must have been at issue in the underlying trial (which, as Garrett notes, precludes relief in cases of guilty pleas).³²⁸ Four states hold that attorney error or failure to exercise due diligence at trial to preclude post-conviction DNA testing (though such defendants might be eligible for a new trial on a Strickland claim).³²⁹

The accessibility of relief under these state statutes raises distinct constitutional due process issues. In District Attorney’s Office v. Osborne, the Supreme Court recognized that a convicted individual has “a liberty interest in demonstrating [their] innocence with new evidence under state law.”³³⁰ The Court affirmed that a state-created right “can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right.”³³¹ The Sixth Circuit had held below that Alaska had violated Osborne’s due process rights under Brady by failing to provide the defendant access to the DNA evidence used at trial, because the Alaska statute provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence.³³² The Supreme Court, however, held that Brady did not apply post-conviction and that a state “has more flexibility in deciding what procedures are needed in the context of post-conviction relief.”³³³ The appropriate test, the Court said, is whether Alaska’s post-conviction relief procedures “are fundamentally inadequate to vindicate the substantive rights provided” (in this case, the liberty interest in being released under Alaska’s innocence statute).³³⁴

The Osborne Court examined Alaska’s post-conviction procedures, which provide for discovery in post-conviction proceedings and specified that such discovery is available for those seeking access to DNA evidence.³³⁵ The Alaska post-conviction statute limits discovery to “newly available” evidence and imposes due diligence and materiality limitations.³³⁶ Furthermore, the Court found that Alaska courts had suggested in dicta that in DNA cases, the state constitution may even provide an additional right of access to those who cannot meet the usual post-conviction discovery requirements, though the issue remains unsettled. The Court held that these procedures, which Osborne had not yet exhausted, were “adequate on their face” to the realization of his liberty interest under the post-conviction DNA statute.³³⁷

Federal courts of appeals have been relying on Osborne to find state post-convictions procedures fundamentally adequate and, thus, reject Section 1983 claims based on refusal of post-conviction DNA testing.³³⁸ However, the Second Circuit came to the opposite conclusion about the New York City Police Department’s evidence management system in Newton v. City of New York.³³⁹ In 1985, Alan Newton was convicted of rape, robbery, and assault based on eyewitness testimony.³⁴⁰ The rape kit was not tested at trial, but in 1988, Newton moved for an order authorizing his expert to conduct forensic tests on the rape kit pursuant to New York’s post-conviction relief statute. The statute authorizes vacatur based on the discovery of new evidence that “could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.”³⁴¹ The New York Supreme Court granted the motion, but the officer of the Chief Medical Examiner Office reported that the rape kit contained no testable sperm.³⁴²

In 1994, New York passed a post-conviction DNA statute that allows for testing upon the court’s determination that “if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial . . . there exists a reasonable probability that the verdict would have been more favorable to the defendant.”³⁴³ When Newton made a motion for testing under this statute on the grounds that technological advances since 1988 had rendered smaller samples testable, the court denied his motion after the District Attorney’s Office revealed that it had lost the rape kit entirely after the 1988 analysis.³⁴⁴ Ten years later, upon request from defense counsel, an Assistant District Attorney who had not been involved in Newton’s case searched for the rape kit again and found it in a barrel in an NYPD Property Clerk’s warehouse in Queens.³⁴⁵ After Newton had served more than twenty years in prison, new DNA testing of the rape kit exonerated him.³⁴⁶

In reviewing the district court’s decision to set aside the jury verdict for Newton in a subsequent Section 1983 case, the Second Circuit applied Osborne to the facts of the case. It held that, first, like Osborne, Newton had a liberty interest in demonstrating his innocence on new evidence.³⁴⁷ It then turned to the question of whether New York’s procedural rules were fundamentally adequate to the realization of this interest. Newton argued that, like Alaska’s in Osborne, New York State’s similar procedures were fundamentally adequate, and, unlike Osborne, Newton had diligently availed himself of all of them. However, Newton argued that New York City’s ineffective evidence management system effectively nullified those procedures.³⁴⁸

The Second Circuit agreed. Noting that Newton’s action focused not on the State law itself but on the execution of the law, the court did “not decide what specific City procedure is necessary to manage and track evidence,” but the court reinstated the jury’s verdict for Newton.³⁴⁹ It found that New York’s post-conviction DNA statute “is consistent with requiring the NYPD’s evidence management system to provide an adequate means to determine if evidence is available for testing and, if so, where the evidence is located.”³⁵⁰

Post-Conviction Statutes and Familial DNA

Newton suggests courts might be open to the argument that state procedures rendering DNA testing of old evidence effectively impossible could violate a defendant’s limited due process right to vindicate substantive rights under post-conviction relief statutes. Mismanaged storage procedures are distinctly different, however, from a formal legislative decision to restrict familial DNA searches through consumer sites. If Osborne stands for anything, it is the proposition that “[f]ederal courts should not presume that state criminal procedures will be inadequate to deal with technological change.”³⁵¹ The Court made it quite clear that “the development of rules and procedures” in the area of DNA science should be left in the “hands of legislatures and state courts shaping policy in a focused manner.”³⁵² A convicted prisoner might try to argue that a state statute effectively barring law enforcement from even attempting to re-open a case through familial DNA searches renders its procedures “fundamentally inadequate” under Osborne to vindicate their right to state-created post-conviction process. However, given the Court’s strong deference to legislatures, this argument is unlikely to prevail. It should be noted from this discussion of post-conviction process, however, that the lack of a constitutional innocence claim and the inapplicability of Brady post-conviction emphasize the importance of accuracy in initial criminal adjudications.

Conclusion: Adjudicating Due Process in Conflict

Part Two of this Article considered the argument that a subject has a Fourth Amendment right not to be subject to warrantless searches of their family member’s DNA within databases, even with the database user’s consent. It agreed with commentators who argue that DNA contains intimate information, and the consent of an actual database user is not logically equivalent to the consent of that user’s relatives who may be identified through a familial search. Nonetheless, Part Two concluded that the argument that such searches require a warrant after Carpenter is fairly weak. In the first place, the specific privacy interest recognized by Carpenter in the totality of one’s movements implicates detailed information about one’s actual life. By contrast, with the proper limitations on use, a DNA match reveals only one significant piece of information: that a subject left a particular sample in a particular place. More importantly, no authority recognizes a reasonable expectation of privacy in someone else’s bodily materials. Familial DNA works because a subject has left their own sample at a crime scene, and the police match it to the profile of a physical sample offered voluntarily by a relative. A suspect does not have a right to bar their spouse from allowing the police to take a sperm sample from their own body after marital intimacy in order to compare it to the sample in a rape kit. In the case of consumer databases, the suspect’s connection to the consenting party is even more attenuated and less voluntary. Thus, the idea that the Fourth Amendment allows them to override the third party’s use of their own body sample might be somewhat more colorable, but it is still, ultimately, weak.

On the other hand, familial DNA searches implicate the Sixth and Fourteenth Amendment rights of other criminal suspects in cases where unidentified third-party samples are found at crime scenes. Part Three of this Article argued that a criminal defendant has a colorable due process right not to have consumer DNA evidence rendered effectively unattainable by law enforcement. First, any statute preventing criminal defendants from exercising their Sixth Amendment right to subpoena that information would raise compulsory process issues. Even if legislatures or courts only barred law enforcement from conducting such searches, the defendant’s access to the subpoena power is heavily limited in many jurisdictions by the materiality and favorability requirements, and any useful hits resulting from such a search would in any case require expensive forensic testing to lead to a specific subject. Thus, the reality is that a defendant is usually only going to access important exculpatory evidence through Brady, which would put familial DNA largely out of reach if the police were precluded from conducting searches at all or only with probable cause. In any given case, this problem is also compounded by limited options post-conviction, at which point the Supreme Court has held that Brady does not apply and no independent right to DNA testing exists. Law enforcement’s ability to access the most accurate evidence on the front end affects a defendant’s right to obtain the most important kind of exculpatory evidence under Brady.

In Osborne, the Supreme Court declined to “constitutionalize” post-conviction DNA testing as a freestanding due process right to protect the liberty interest of a potentially wrongfully convicted party.³⁵³ Innocent defendants would then be especially harmed by an asymmetrical attempt to “constitutionalize” DNA on the front end—during investigations. Should courts recognize, or legislatures adopt, a Fourth Amendment rule that keeps familial DNA away from law enforcement absent probable cause, such defendants would be effectively shut off from the most accurate and valuable evidence at all stages of the criminal process. Like the Fourth Amendment argument, this Sixth Amendment argument is also somewhat weak since most courts do not even recognize a Brady right to law enforcement searches of public databases. Nonetheless, because a categorical ban on warrantless searches would essentially render all familial DNA evidence inaccessible, it would inherently block a defendant’s access to exculpatory evidence.

The admissibility of familial DNA is, thus, not a due process question in which it makes sense to think of balancing one defendant’s rights against purely “government interests” (although the accuracy of DNA evidence certainly makes the government’s crime-solving interest particularly high). Rather, there are two potential defendants’ liberty interests at stake—one of whom is most likely innocent. Constitutional rights necessarily have limits when they impact other parties’ constitutional rights; scholars debate whether these constitute limits on the scope of rights or simply their realization.³⁵⁴ Many nations’ constitutions have general limitation clauses, which set out the specific conditions under which constitutional rights can be limited.³⁵⁵ However, the United States does not have a general limitation clause and defines certain rights without any limitation.³⁵⁶ Courts have treated some rights as having implicit limitations, such as when they engage in interest balancing to determine “unreasonableness” under the Fourth Amendment. For other situations, the Supreme Court has adopted its own, much criticized tiered system of scrutiny.³⁵⁷ Sometimes, though inconsistently, courts limit constitutional rights through recourse to some version of John Stuart Mill’s harm principle, which holds that the only acceptable limitation on liberty is when it is necessary to prevent harm to others.³⁵⁸

Generally, it is true that a constitutional right’s lack of limitation clause does not render the right absolute but instead subject to interpretation in harmony with the Constitution’s other provisions and other legitimate public interests.³⁵⁹ This inherently entails courts prioritizing certain rights over others based on the facts of a particular case.³⁶⁰ In the context of criminal justice, for example, claims of Sixth Amendment deprivations “are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.”³⁶¹ Thus, trial courts have discretion to limit a defendant’s Sixth Amendment confrontation right in a particular case through limiting the scope of cross-examination based on potential harms, such as harassment of the witness, prejudice, confusion of the issues, the witness’s safety, or questioning that is repetitive or only marginally relevant.³⁶² In United States v. Stein, the Second Circuit found a violation of the Sixth Amendment right to counsel where a Department of Justice charging policy caused a private employer to terminate attorneys’ fees that they would otherwise have paid for according to the terms of their employees’ contracts.³⁶³ While the employees did not have a Sixth Amendment right to employer-funded legal counsel—in the same way that a suspect may not have a right for the police to conduct a familial DNA search—it nonetheless constituted an interference with the employees’ exercise of their Sixth Amendment right to mount a defense with their own assets that could not be justified by the state interest in encouraging cooperation by the corporate defendant.³⁶⁴

Cases of competing constitutional interests are more delicate. In Nebraska Press Association v. Stuart, the Court rejected an absolute balancing test between the First and Sixth Amendments where, in order to protect the accused’s right to an impartial jury, a trial judge had issued an order restraining members of the press from publishing or broadcasting accounts of the defendant’s admissions.³⁶⁵ The Court noted that “[t]he authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other”³⁶⁶ and proceeded to balance the nature and extent of pretrial news coverage, potential mitigating measures, and the effectiveness of a restraining order at preventing the danger; ultimately, the Court held for the petitioner journalists.³⁶⁷

When courts must adjudicate clashes between the constitutional rights of two criminal defendants, their work is complicated by the fact that the meaning of criminal due process is itself contested. Due process has a specific doctrinal meaning related to the procedures required by the Fifth and Fourteenth Amendments, the latter of which incorporates most rights in the Bill of Rights against the states.³⁶⁸ It also has a broader meaning that represents the “principles of civility or fairness that are supposed to underlie procedural and often substantive legal rules.”³⁶⁹ Because of its prominent role in the Bill of Rights, due process has become a distinctly American concept, with jurists in other nations resorting to other concepts such as “procedural justice,” “the rule of law,” “natural justice,” and “fundamental justice.”³⁷⁰

In The Limits of the Criminal Sanction, Herbert Packer famously divides criminal justice thinking into two camps.³⁷¹ One, which he refers to as the “Due Process Model,” values the observation of fair procedures, even at the expense of letting the guilty go free, while the other, the “Crime Control Model,” values accurate determinations of guilt and innocence.³⁷² Accuracy has, in and of itself, been a value central to constitutionalized criminal due process since the start of the criminal procedure revolution in the mid-twentieth century.³⁷³ Rules about impartiality and reliability, the right to counsel for indigent defendants, the right to cross-examination, and the rule against involuntary confessions all exist to prevent the conviction of innocents due to malicious, lazy, hasty, or overzealous police and prosecutors.³⁷⁴ In In re Winship, the Supreme Court held that the standard of proof beyond a reasonable doubt is a due process requirement in criminal trials on accuracy grounds.³⁷⁵

As David Resnick argues, due process serves an important justificatory purpose, providing reasons for subjecting a person to criminal punishment.³⁷⁶ He notes that “our concern with the subjective probability of correct outcomes reflects a requirement of morality and not simply efficiency or rationality.”³⁷⁷ Thus, while critics tend to pit accuracy values against due process values in cases where fair process requires guilty defendants to go free, the protection of innocents is a critical moral component of due process. The availability of DNA evidence inherently implicates accuracy values—not only the broader societal goal of identifying the guilty but also an individual’s right not to be punished without justification.

That said, Packer’s “Due Process Model” fits the argument that unwarranted familial DNA searches violate the Fourth Amendment rights of the third-party family members identified. Under this view of due process, the absence of “fair play” for the suspect should override the state’s interest in crime solving.³⁷⁸ Some of the Supreme Court decisions that fit this model have been described as premised on “fundamental fairness”—most notably Rochin v. California, which excluded evidence found after law enforcement pumped a suspect’s stomach against his will and without judicial authorization.³⁷⁹ In an opinion by Justice Frankfurter, the Court held that the stomach pumping—while producing accurate evidence—violated due process because it “shock[ed] the conscience.”³⁸⁰ The Fourth and Fifth Amendment exclusionary rules in general represent the primacy of fair play over accuracy since they necessarily better protect the procedural rights of the guilty than they do the innocent. However, an unjustly accused party could also argue that principles of fair play and fundamental fairness should prevent them from being criminally convicted without access to a whole body of highly reliable evidence.

It should be noted that there is a third set of due process values beyond these two that is related to the expressive function of criminal procedure and its relationship to public confidence in the justice system. The public will be more likely to support and participate in criminal justice when it believes that the process operates fairly.³⁸¹ On that basis, some critics point out that “[a] focus on the individual rights of the defendant to the exclusion of the interests of other participants belies the public’s critical role.”³⁸² In this view, a trial is not just a fact-finding mission but serves an “important symbolic function as public expressions of the affected parties’ rights to demand that official acts be explained and justified.”³⁸³ This concept of due process is particularly important in the case of familial DNA. High-profile cases like the Golden State Killer have increased public awareness of this science, and exonerations like Christopher Tapp’s, which was widely covered in true crime media, have created demand for it as a means of recourse for the wrongfully accused and convicted.

Ultimately, the case of familial DNA does not present a simple, bilateral competition between fair Fourth Amendment process for a criminal defendant and public interest in crime-detection; it also implicates the Sixth and Fourteenth Amendment rights of an innocent suspect whose risk of wrongful conviction would be higher in a world with law enforcement access to familial DNA substantially restricted. Should courts consider Fourth Amendment claims challenging familial DNA evidence, they should bear in mind these other defendants when determining whether such searches are reasonable without a warrant. Furthermore, should states seek to regulate law enforcement use of DNA via statute, they should not adopt restrictions as broad as Montana’s. Ideally, even if states do restrict law enforcement access, they should at least create a formal subpoena process to clarify how criminal defendants can access this evidence. However, given the limitations on defense testing resources, this mechanism would likely benefit only a minority of defendants and should be supplemented by some degree of law enforcement access.

98 S. Cal. L. Rev. 761

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Erin Sheley*

* Professor, California Western School of Law. Many thanks to Daniel Yeager and Donald Dripps for their valuable comments on drafts of this Article. I am also grateful to the helpful feedback I received at workshops from the faculties of California Western School of Law and the University of San Diego School of Law.

The Default Rule and Due Process: Diverging Interpretations of “The Charging Document” Requirement in Extradition Treaties

July 2025July 2025Jacob M. Karlin*

INTRODUCTION

The United States is a party to over one hundred bilateral extradition treaties with foreign governments.¹ These treaties allow the U.S. and foreign countries to facilitate the transfer of individuals accused of crimes to the jurisdictions seeking to prosecute them.² Extradition is an ancient practice: processes resembling extradition have existed since antiquity, and the United States has entered into versions of bilateral extradition treaties and received extradition requests since shortly after the country’s founding in the 18th century.³

As the world continues to grow smaller by means of technological advances and ever-increasing accessibility to international travel, extradition has become increasingly important as a means of international law enforcement.⁴ This growth in extradition has forced the judiciary of the United States to face unique issues of law that relate to the constitutional rights of the individuals whose extradition from the United States is requested by foreign countries. In that same vein, the recognition and enforcement of international human rights law has grown in the last century, and as rules of international human rights law have become binding on the United States judiciary, courts are faced with new, conflicting demands of both extradition requests and international law-derived rights of relators (that is, the individuals whose extradition is requested by foreign countries).

In 2023, two federal circuit courts analyzed the phrase “the charging document” in two bilateral extradition treaties: the Fourth Circuit reviewed an extradition treaty between the United States and Lithuania, and the Ninth Circuit reviewed an extradition treaty between the United States and Peru. The Fourth and Ninth Circuits disagreed over how to approach the phrase and its effect on the extradition process. In Manrique v. Kolc, the Ninth Circuit found “the charging document” requirement in the U.S.-Peru Extradition Treaty to be ambiguous and subject to multiple interpretations. Utilizing court precedents on treaty interpretation, the Ninth Circuit deferred to the executive branch’s interpretation of the phrase. In doing so, the court found that Peru had provided the necessary documents to satisfy the “charging document” requirement. On the other hand, the Fourth Circuit found that the phrase was clear and unambiguous, holding in Vitkus v. Blinken that the judiciary was compelled to decline Lithuania’s extradition request upon analyzing the “charging document” requirement in the U.S.-Lithuania Extradition Treaty. The Fourth Circuit found that the inclusion of “the charging document” in the U.S.-Lithuania treaty was a requirement that Lithuania had not satisfied when it had presented prosecutorial documents to the Secretary of State in an extradition request. The court rejected the Secretary of State’s argument as to the adequacy of Lithuania’s submitted documents.

The discrepancy between these two circuit courts illustrates how the judiciary’s deference to the executive branch (a deference codified by the Supreme Court in the early 20th century and referred to in this Note as the “default rule”) in matters of extradition treaty interpretation has manifested in the 2020s. At least twenty-eight extradition treaties that the United States has entered into with foreign nations reference the “charging document” in their lists of documents that a foreign nation is required to provide in an extradition request to the United States.⁵ As the judiciary will likely be called to interpret the “charging document” in future extradition requests, the judiciary’s decision to give deference to the executive branch in interpreting this phrase merits attention. The interpretation of the “charging document” requirement implicates due process concerns of relators, given that the charging document requirement ensures that the country requesting extradition complies with the procedure outlined in its treaty. This Note argues that courts, when faced with extradition requests from countries whose treaties include the “charging document” requirement, are bound by precedent to apply the default rule in a way that may conflict with a relator’s constitutional, due process rights. This Note also contends that this form of deferential interpretation to the executive branch may conflict with the fundamental right of due process afforded to relators by international law. However, departing from executive deference affects the United States’ foreign relations with other sovereign countries—this Note will briefly explore this ramification as well.

Part I of this Note provides an overview of how extradition treaties are utilized by the United States and how they are interpreted by both the executive and judicial branches. In brief, the statute governing extraditions in the United States bestows the judiciary with the responsibility of certifying an individual for extradition: the judiciary interprets the relevant extradition treaty to determine whether the person being sought by the requesting country may be certified as extraditable.⁶ Once the court certifies the extraditability of a relator, the Secretary of State has the discretion to either extradite the relator or deny the foreign country’s extradition request.⁷ Importantly, although extradition is neither a full trial nor a solely administrative function, relators are deemed to have certain constitutional rights when subject to extradition proceedings in the United States.⁸ However, the unique procedural characteristics of extradition do not align with notions of constitutionally mandated due process, as relators do not benefit from the constitutional protections that courts have recognized for criminal defendants.⁹ Judicial precedent also mandates that courts defer to the executive branch’s interpretation of extradition treaties.¹⁰ This deference has created friction between the judicial and executive branches, as the judiciary has been tasked with balancing relators’ due process rights against the executive branch’s foreign relations commitments to other sovereign nations. As the fundamental right to due process has been developed by international human rights bodies over the course of the 20th century, the judiciary’s deference to the executive branch has come into conflict with the advancement of due process as an international human right as well.¹¹

Part II surveys two appellate court cases decided in 2023, Vitkus v. Blinken and Manrique v. Kolc. In these cases, the Fourth and Ninth Circuits both analyzed “the charging document” requirement in extradition treaties, and in doing so, they exemplify the divergent approaches to granting deference to the executive branch in extradition procedures. In their divergent outcomes, these cases demonstrate the impact the default rule may have on a court’s decision to determine whether a relator is extraditable.

Part III of this Note analyzes the decisions of the Fourth and Ninth Circuits in Vitkus v. Blinken and Manrique v. Kolc. In analyzing the decisions, this Note argues that the Fourth Circuit’s avoidance of the default rule in reviewing “the charging document” requirement protects the relator from a potential infringement of their constitutional due process rights under domestic law, even at the cost of the executive branch’s ability to maintain foreign relations. The Fourth Circuit’s interpretation also respects the relator’s fundamental right to due process as established by international human rights law. This Note contends that the Fourth Circuit’s interpretation of a bilateral extradition treaty is one example of how the judiciary should approach the “charging document” requirement, notwithstanding other circumstances in the extradition process.

I. BACKGROUND

A.Executing Bilateral Extradition Treaties

The United States and foreign countries usually coordinate the extradition of relators through bilateral extradition treaties. A treaty is “[a]n agreement formally signed, ratified, or adhered to between two countries or sovereigns; [or] an international agreement concluded between two or more states in written form and governed by international law.”¹² In the United States, treaties are “international agreements made by the President with the advice and consent of the Senate in accordance with Article II, [S]ection 2 of the Constitution of the United States.”¹³ Extradition treaties are treaties that contain the general, agreed-upon terms of the extradition process that both signatories must abide by. There are various forms of extradition treaties¹⁴: there are bilateral extradition treaties, which are “concluded between [a country adopting the law] and a foreign country,” and multilateral treaties, which contain “provisions governing extradition of persons who are present in the territory of [country adopting the law].”¹⁵

The United States has entered into extradition agreements with foreign countries since shortly after its founding in the 18th century.¹⁶ The United States primarily executes bilateral extradition treaties.¹⁷ This means that for the United States to engage in an extradition proceeding, the United States usually must have executed an extradition treaty directly with the foreign country requesting extradition in order to consider an extradition request.¹⁸

The extradition process falls under the umbrella of the United States’ foreign relations responsibilities and therefore, extradition is considered by the United States as a responsibility of the executive branch. The executive branch is authorized to manage the extradition process “by virtue of its constitutional power to conduct foreign relations.”¹⁹ The treaties that the executive branch enters into on behalf of the United States can be divided into two kinds of treaties: self-executing treaties, which are akin to legislative acts, and non-self-executing treaties, which are treaties that the federal legislature is required to ratify and enforce.²⁰ Self-executing treaties do not need legislation to be enacted, as their self-executing nature imbues them with the power of domestically-created federal legislation that supersedes both state law and prior federal law.²¹ Bilateral extradition treaties are self-executing.²² Upon ratification of the bilateral extradition treaty with a foreign government, the legislative branch enacts statutes, based on the terms of the extradition treaties, that govern the procedures by which the executive and judicial branches respond to extradition requests.²³ When domestic legislation and treaty provisions conflict, treaty provisions “prevail.”²⁴

A pertinent aspect of treaty enforcement for purposes of this Note is the inclusion of the “documents required” section in an extradition treaty. In the modern era of extradition treaty drafting, extradition treaties usually list the required documents a requesting foreign country must provide to the Secretary of State to initiate proceedings in the United States.²⁵ Under the Revised Manuals on the Model Treaty on Extradition and on the Model Treaty Mutual Assistance in Criminal Matters (the “Manual”), the UN provides recommendations on drafting extradition treaties, including how parties should list the documents that accompany an extradition request:

[T]he request must contain a precise description of the person sought; a copy of the applicable legal provisions (or a statement of the relevant law), a statement of the penalty that can be imposed for the offence; proof of the enforceable sentence or of the warrant of arrest (as the case requires) and any other documents having the same force; and an exposition of the facts for which extradition is requested (including a description of the acts or omissions constituting the alleged offence and an indication of the time and place of its commission). A reference to the basis of jurisdiction has been found to be useful. Additional requirements apply where the person has been convicted of an offence in his or her absence and where the person has been convicted of an offence but no sentence has yet been imposed.²⁶

The Manual explains that in order “[t]o obtain speedy and efficient execution of requests, [the treaty] should provide a precise description of the information to be included in the request,” and that “[t]he treaty will then act as a guide for those who are called upon to provide the information.”²⁷ Given the discrepancy between countries’ legal systems, the Manual recommends that the negotiating parties draft the treaty with reference to specific documents relevant to each country’s criminal procedure to avoid erroneous interpretation of foreign criminal procedure.²⁸ Although guidance on how parties should draft treaties is publicly available, drafting histories of treaties are rarely accessible to the public.²⁹ As such, this Note does not address how bilateral extradition treaties are negotiated and executed by two sovereign nations.

B.The Extradition Process in the United States: Foreign Requests

The extradition process is initiated when a foreign government makes an extradition request to the U.S. State Department. Usually, a foreign government makes this request by providing the supporting documents that are listed in the “documents required” section of the relevant extradition treaty.³⁰ The procedure for responding to an extradition request is codified in 18 U.S.C. § 3184.³¹ Under 18 U.S.C. § 3184, once a foreign country with an extradition treaty with the United States has submitted an extradition request to the Department of State, a warrant is issued for the wanted individual.³² Once the individual is located and arrested, “any justice or judge of the United States” may hear evidence of the “criminality” being heard and considered, and “[i]f, on such hearing, he deems the evidence sufficient to sustain the charge . . . he shall certify the same . . . to the Secretary of State . . . for the surrender of such person, according to the stipulations of the treaty or convention.”³³

When a court hears evidence of the criminality of an individual sought by a foreign government, “the extradition magistrate examines the treaty to ascertain whether it allows extradition in the circumstances presented by the relator.”³⁴ Generally, the magistrate is required to review whether the government has established:

(1) probable cause that the relator committed the alleged offense at the requesting country; (2) the offense upon which extradition is requested is extraditable according to the applicable treaty; (3) the offense in question constitutes a crime [in] both the requesting country and the United States (“dual criminality”); (4) an enforceable extradition treaty exists between the United States and the requesting country; and (5) the arrested individual is the person sought by the requesting country.³⁵

The extradition court does not determine the “guilt or innocence” of the relator.³⁶ The extradition court is limited to hearing the evidence of a case to determine whether “the facts alleged constitute a crime in the prosecuting country”; interpreting the provisions of the treaty to ensure their applicability to the extradition request; and ensuring that the extradition process complies with the relevant constitutional provisions.³⁷ Given its responsibilities, the extradition court’s role in the extradition process is akin to its role in a preliminary hearing in United States criminal court.³⁸ Following the extradition court’s findings on the extradition request, the extradition court may enter “an order certifying extradition to the Secretary of State.”³⁹ Once the judiciary certifies the relator for extradition, the certification is passed on to the Secretary of State, who has the ultimate discretion to either accept or deny the extradition request.⁴⁰

The judiciary’s role in extradition proceedings is somewhat “constrained” by the executive branch.⁴¹ The judiciary is “limited because it cannot enjoin, prohibit, or mandate the executive’s negotiation of an agreement or a treaty, nor can it enjoin or mandate the executive’s exercise of discretion to request a relator’s extradition or to refuse to grant extradition although the terms of the applicable treaty have been satisfied.”⁴² The court reviewing a request for extradition does not determine whether the accused is innocent or guilty, as the extradition process only serves to begin the “criminal proceedings against an accused” individual—the foreign court ultimately decides the guilt or innocence of the accused.⁴³ Therefore, the extradition court in the United States is required to review whether a foreign country’s extradition request satisfies the provisions of the relevant treaty “and that no valid defense or exception to extradition is in order.”⁴⁴

Importantly, extradition orders by the extradition court can only be challenged through petitions for writs of habeas corpus,⁴⁵ and habeas petitions “can challenge detention by the government if [the detention] is in violation of the Constitution, laws or treaties of the United States.”⁴⁶ In general, when considering a habeas petition following a magistrate’s extradition order, the reviewing court considers the following factors: (1) the jurisdiction of the judge presiding over the extradition proceeding; (2) the jurisdiction of the relevant court over the relator; (3) the applicable treaty provisions and their requirements; (4) “the character of the crime charged and whether” the crime is included within the treaty provisions; and (5) whether the government has provided evidence to substantiate a claim of extraditability.⁴⁷

C.Extradition Treaty Interpretation in the United States

The magistrate court is responsible for reviewing an extradition treaty to determine whether the requesting country has satisfied the requirements listed in the extradition treaty.⁴⁸ When an extradition court finds that written portions of a treaty are ambiguous and subject to multiple meanings, the court is tasked with interpreting those ambiguous terms. The interpretation of treaty provisions highlights the relationship between the judiciary and the executive branches in enforcing the provisions of an extradition treaty. The executive branch “has authority to determine the interpretation of an international agreement to be asserted by the U.S. in its relations with other states,” but “[c]ourts in the U.S. have final authority to interpret an international agreement for purposes of applying it.”⁴⁹

The judiciary analyzes extradition treaties in the same manner that it analyzes contracts and statutes.⁵⁰ Courts begin their analysis of treaties by first examining the text of the treaty, or the four corners of the document.⁵¹ Much like the interpretation of statutes or contracts, “[w]hen interpreting a treaty, [courts] begin with the text of the treaty and the context in which the written words are used.”⁵² If the court finds that a treaty’s language is clear and unambiguous, the court will cease its analysis of the meaning of the words of the treaty and “apply the words of the treaty as written.”⁵³

When interpreting treaty provisions, courts may find that the treaty provisions, much like statutory provisions, are ambiguous. When courts encounter ambiguous provisions in treaties, they expand their scope of focus to incorporate intrinsic and extrinsic evidence to evaluate the text of the treaty “in light of its object and purpose.”⁵⁴ In understanding ambiguous terms, courts are meant to undertake an interpretation in a “ ‘holistic endeavor’ and must account for the statute’s ‘full language, text, language as well as punctuation, structure and subject matter.’ ”⁵⁵ In ascertaining ambiguous terms in a treaty, courts “may look . . . to the history of the treaty, the negotiations, and the practical construction adopted by the parties.”⁵⁶

One of the most important tools of extradition treaty interpretation used by the judiciary, and which scholars and courts have both criticized and utilized since the Supreme Court issued its opinion in 1933, is the extradition treaty interpretation principle established in Factor v. Laubenheimer.⁵⁷ Factor v. Laubenheimer involved an extradition request by the United Kingdom for Factor, who had allegedly committed a financial crime there and fled to Illinois. Factor argued that because Illinois did not have a comparable criminal statute, the extradition treaty between the United States and the United Kingdom could not be used to extradite him.⁵⁸ In one of the most influential and long-standing guides on how courts should interpret treaties, the court in Factor considered whether a broad or narrow interpretation of a treaty should be utilized by an extradition court:

In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international agreements. Considerations which should govern the diplomatic relations between nations, and the good faith of treaties, as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them. For that reason if a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging it, the more liberal construction is to be preferred.⁵⁹

This construction—that when faced with two possible constructions of an ambiguous term in a treaty, courts should broaden the interpretive scope of the extradition treaty in favor of the executive branch—is referred to as the default rule of extradition treaty interpretation.⁶⁰ This rule has been used to argue that, as the purpose of the extradition treaty is to extradite individuals, courts should interpret treaty provisions broadly to fulfill that purpose.⁶¹ This principle has been articulated by various courts since 1933, such as the Sixth Circuit in the 2016 case Martinez v. United States, in which the court stated that “ambiguity in an extradition treaty must be construed in favor of the ‘rights’ the ‘parties’ may claim under it,” and in extradition proceedings, the parties are the countries and the “right the treaty creates is the right of one country to demand the extradition of fugitives in the other country,” as “[t]he point of an extradition after all is to facilitate extradition, as any country surely would agree at the time of signing.”⁶²

The judiciary’s deference to the executive’s interpretation of international treaties is noteworthy.⁶³ This deference stems from the executive branch’s role in foreign relations. Since United States v. Curtiss-Wright Export Corporation in 1936, the U.S. Supreme Court has codified the executive branch’s power in foreign relations by proclaiming the “exclusive power of the President as the sole organ of the federal government in the field of international relations.”⁶⁴ Later, in Kolovrat v. Oregon, the Supreme Court stated that “[w]hile courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”⁶⁵ Additionally, courts will consider how the parties to the treaty constructed and interact with the treaty, as such behavior informs its application.⁶⁶

There are foreign policy concerns when courts are called to interpret extradition treaties. Courts are likely to give deference to an executive branch’s interpretation given its role “in diplomatic negotiation with other countries, on the ground that the U.S. should speak with one voice, than to one adopted by the Executive in relation to a case before the courts, especially where individual rights or interests are involved.”⁶⁷ There are also concerns that the executive branch, in finding that an extradition request is inadequate, should not “expand the obligations of another nation in a treaty.”⁶⁸ In 2020, the Supreme Court noted that it has “never provided a full explanation of the basis for [its] practice of giving weight to the Executive’s interpretation of a treaty. Nor [has it] delineated the limitations of this practice.”⁶⁹ As it is generally understood that United States’ compliance with extradition treaties is beneficial to U.S. foreign policy, the executive branch’s interpretation of an extradition treaty that favors a relator’s extradition has considerable influence in extradition court proceedings.⁷⁰

D.Due Process in the Extradition Process

Relators who are physically present in the United States and who a foreign government wishes to extradite are subject to the Due Process Clause of the Fifth Amendment of the U.S. Constitution.⁷¹ Relators are also the beneficiaries of due process under international law. It is worthwhile to explore the domestic and international understandings of due process: both understandings of due process apply to extradition proceedings that occur in the United States.

Procedural due process “asks whether the government has followed the proper procedures when it takes away life, liberty or property.”⁷² Due process is contextually dependent on the type of liberty interests over which a court or agency is ruling.⁷³ In considering due process claims, courts, depending on their context, are often compelled to balance the following factors established by the Court in Mathews v. Eldridge:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.⁷⁴

Although the extradition process is neither a criminal proceeding nor a trial, the extradition process affects relators’ liberty interests; relators do enjoy Constitutional rights, albeit in a different capacity than those protections the courts recognize for criminal defendants.⁷⁵ Given that extradition in the United States is a “bifurcated procedure” between the executive and judiciary branches, extradition is considered an executive process under the executive branch of the government⁷⁶, and the judiciary is tasked with applying its expertise in statutory interpretation, evidentiary requirements, and understandings of probable cause as well as other related legal concepts.⁷⁷ The Ninth Circuit has found that extradition courts have discretion in conducting their proceedings—as relators are not criminal defendants in United States criminal courts, the courts do not need to follow the procedural safeguards enforced in criminal proceedings, such as the Federal Rules of Civil Procedure and the Federal Rules of Evidence.⁷⁸ Rather, their role is limited to “ensur[ing] that the government complies with the requirements of the extradition treaty and the extradition statute.”⁷⁹ The judiciary is mindful that the extradition process is an executive function, and thus attempts to balance the interests of the relators with the interests of the executive branch.⁸⁰

The Due Process Clause is applicable to the liberty interests of relators, as “the consequences of extradition—the forceful surrender of a relator to a foreign country for criminal prosecution and imprisonment—affect” a relator’s Constitutional rights.⁸¹ This is because “[r]elators face tremendous liberty losses” upon extradition, as the process is aimed at surrendering a relator to a foreign jurisdiction for criminal prosecution and imprisonment.⁸² Therefore, the court hearing the extradition case must ensure that the extradition proceeding comports with a relator’s right to due process “in a manner consistent with the Constitution.”⁸³

As the purpose and structure of an extradition hearing differs from those of domestic criminal and civil proceedings, courts have deemed that the amount of procedures, and therefore due process, owed to relators differs from the procedures that are owed to criminal defendants.⁸⁴ Unlike its application of the Mathews analysis to other categories of cases that involve the deprivation of liberty, extradition courts do not uniformly apply the Mathews analysis factors of due process to determine whether the relator has sufficient due process.⁸⁵ In reviewing challenges to the constitutionality of extradition proceedings, the judiciary has found that “the totality” of the proceedings conducted by both judicial and executive branch “comports with the requirements of the Fifth Amendment, in light of the substantial process afforded in the judicial phase and the executive’s broad discretion to decide matters of foreign policy.”⁸⁶ Courts find that the procedural requirements of 18 U.S.C. § 3186 and § 3184 are sufficiently protective of a relator’s due process rights and commensurate with the due process owed to relators to ensure that a relator is not extradited entirely “by Executive whim,” as the executive branch exercises its discretion “only if the magistrate determines that there is ‘evidence sufficient to sustain the charge under the provisions of the proper treaty.’ ”⁸⁷ The D.C. District Court rationalized the adequacy of the procedural due process given to relators in extradition proceedings:

[T]he risk of an erroneous deprivation absent an additional hearing conducted by the State Department and the furnishing of any unclassified documents relied upon is minimal . . . given [the relator’s] active role . . . in developing the record in his judicial proceedings and challenging the key determinations there, not to mention his ability to supplement the record in whatever way he wished before the State Department. Further, requiring the State Department to provide the additional opportunities for participation . . . would unnecessarily overtax Department resources without meaningfully expanding the scope of information considered and risks chilling the Department’s ability to freely obtain information and assurances from relevant foreign governments, which might be less willing to speak frankly if the information disclosed was not kept confidential.⁸⁸

International law also affords due process rights to relators in the extradition process; due process is a fundamental human right under customary international law.⁸⁹ For context, customary international law can be defined as the “general and consistent practice of states followed by them from a sense of legal obligation.”⁹⁰ The United States has signed the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on Torture, the Hostage Convention, and, along with “other treaties, the United States has agreed, with certain reservations, to be bound by their provisions and to incorporate them into U.S. law.”⁹¹ Within the United States, the federal judiciary has “applied rules of customary international law in countless cases since the founding of the Republic . . . treating customary international law rules in the same manner as U.S. treaties and other international agreements.”⁹² The United States is bound by customary international law on its treatment of human rights, as human rights standards “are binding [on the federal judiciary] as jus cogens (i.e., overriding principles) under international law”—human rights treaties “may provide guidance in determining contemporary human rights norms that should inform a court’s decisions in extradition proceedings.”⁹³ For the most part, as the judiciary has “treated rules of customary international law as rules of federal law,” the judiciary is compelled to uphold customary international law.⁹⁴

On the other hand, the principles of international law are made up of “rules of international law” that are “accepted as such by the international community of states . . . by derivation from general principles common to the major legal systems of the world.⁹⁵ Under principles of customary international law, due process is defined as “procedural norms . . . that are applicable to . . . limit governmental powers”—these norms include “[t]he right of equal access to courts, the right to equal treatment of litigants, the right to an effective remedy and the right to a fair hearing.”⁹⁶ Other aspects of the due process under international law include that “there shall be no common interest between the parties and the judge”⁹⁷ and that each party has a “reasonable opportunity of presenting [their] case . . . under conditions which do not place [them] at substantial disadvantage vis-à-vis [their] opponent.”⁹⁸ Importantly, as explored in Part III, another element of international due process is the “assurance that ‘the judiciary [is not] dominated by the political branches of government or by an opposing litigant . . . .’ ”⁹⁹ Charles T. Kotuby, Jr. and Luke Sobota, in General Principles of Law and International Due Process, outline the human rights conventions that affirm the obligation of sovereign nations to uphold the fundamental due process right of individuals:

The Inter-American Convention on Human Rights (IACHR)—building upon the principles set forth in “the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights”—imposes upon States the obligation to “respect the rights and freedoms” it enshrines “without any discrimination.” Included is the “right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law.” The European Convention for the Protection of Human Rights and Fundamental Freedoms follows a similar pattern, providing . . . that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”¹⁰⁰

Within the U.S., the intersection of extradition and due process is especially poignant under the rule of non-inquiry. Non-inquiry is the concept that the judiciary is not compelled to inquire into the adequacy of the foreign proceedings to ensure that the proceedings in the foreign jurisdiction preceding the extradition request comport with “fundamental rights to due process”—this rule raises concerns about the judiciary’s role in complying with international due process requirements when responding to extradition requests from foreign jurisdictions.¹⁰¹ In reviewing the procedures of the requesting country, the Ninth Circuit has said that it gives “credence to foreign proceedings” and that it declines “to rule on the procedural requirements of foreign law out of respect for other nations’ sovereignty.”¹⁰² In doing so, the Ninth Circuit has understood the risk of “erroneous interpretation” of a foreign country’s legal system.¹⁰³ Courts generally see that the Secretary of State’s understanding of the treaty and of foreign criminal procedure should be considered as part of its considerations when interpreting a treaty document. This becomes especially important when questions regarding the foreign country’s political intentions for extraditing individuals are brought before the U.S. judiciary.

Relators often argue that the extradition proceedings lack due process even though the extradition process is not considered a full-fledged criminal trial.¹⁰⁴ These complaints relate to the statutes of limitations of crimes committed in foreign countries, the discretion of the court to consider whether the requesting country might torture the relator, the admissibility of hearsay evidence in extradition proceedings, and other findings that the procedure owed to relators is inadequate.¹⁰⁵ However, relators have little redress when they argue that extradition proceedings are violative of due process, as the standard for finding a procedural defect in the process is high: this is due to the unique nature of an extradition proceeding as a proceeding akin to a preliminary hearing. The judiciary often finds that extradition processes should not be encumbered by more procedure.¹⁰⁶ The judiciary has found that,

[S]o long as the United States has not breached a specific promise to an accused regarding his or her extradition, and bases its extradition decisions on diplomatic considerations without regard to such constitutionally impermissible factors as race, color, sex, national origin, religion, or political beliefs, and in accordance with such other exceptional constitutional limits as may exist because of particularly atrocious procedures or punishments employed by the foreign jurisdiction, those decisions will not be disturbed.¹⁰⁷

Accordingly, as the discretion to extradite lies with the executive branch, “[t]he judiciary has no authority to impose requirements on the decision-making process that go beyond the scope of what is required under the Constitution.”¹⁰⁸

II. INTERPRETING THE “CHARGING DOCUMENT”

A.Overview of the Circuit Split

Part II of this Note explores the difference in treatment of the phrase the “charging document” which the U.S. has included in at least twenty-eight bilateral extradition treaties.¹⁰⁹ Part I outlined the history and reasoning behind the different tools of interpretation courts utilize in interpreting extradition treaties, and the due process rights that relators are afforded in the extradition process. Part II will cover how these interpretation tools have been implemented by the judiciary in its treatment of extradition treaties that include “the charging document” requirement in 2023.

In 2023, the Ninth and Fourth Circuits were charged with interpreting the phrase “the charging document” in two bilateral extradition treaties: the Ninth Circuit analyzed a bilateral extradition treaty between the U.S. and Peru, and the Fourth Circuit analyzed a bilateral extradition treaty between the U.S. and Lithuania.¹¹⁰ These cases, Vitkus v. Blinken and Manrique v. Kolc, involved foreign nationals residing in the U.S. who were wanted by foreign countries for crimes allegedly committed by the foreign nationals in their respective countries of nationality. Both cases rose to the federal circuit courts after the foreign nationals petitioned for stays and preliminary injunctions on their extradition requests. The relators in each case argued that they were not extraditable as the foreign countries did not provide “the charging document,” a document listed under the required documents section of the relevant extradition treaties that a requesting country must provide in its extradition request. The two courts diverged over how to interpret the phrase, or even whether there was a need to interpret the phrase and apply the default rule. The implications of this divergence will be explored in Part III of this Note.¹¹¹

B.Manrique v. Kolc

In 2023, the Ninth Circuit reviewed a petition filed by former president of Peru, Alejandro Toledo Manrique,¹¹² to stay Toledo’s extradition from the U.S. to Peru while appealing the denial of his petition for writ of habeas by the U.S. District Court for the Northern District of California.¹¹³ Peruvian prosecutors sought to extradite Toledo to Peru from the United States after they alleged that Toledo had committed money laundering and collusion, specifically “taking $20 million in bribes from Odebrecht, a giant Brazilian construction company that has admitted to U.S. authorities that it bribed officials to win contracts throughout Latin America for decades.”¹¹⁴ The Peruvian investigators had investigated or put on trial almost every living former president of Peru while conducting sweeping investigations of those who might have participated in the bribery with the Odebrecht company.¹¹⁵

Peru brought the accusations against Toledo in “two Prosecutor’s Decisions, documents that summarize the ongoing investigation, and in an Acusación Fiscal, a document produced at the end of an investigation that lays out the crimes allegedly committed and supporting evidence.”¹¹⁶ After the Supreme Court of Justice of Peru approved an extradition request for Toledo, the Peruvian government filed an extradition request with the United States in 2018 and sent a supplemental request in August 2020.¹¹⁷

In July 2019, a United States federal prosecutor filed a criminal complaint against Toledo, and two years later, a United States magistrate judge in the U.S District Court for the Northern District of California certified Toledo’s extradition.¹¹⁸ Separately, Toledo filed suit in the D.C. District Court to enjoin the U.S. Department of State from extraditing him to Peru, claiming that his extradition was politically motivated and that the decision to extradite him violated due process because the Secretary of State “did not ‘disclose the unclassified bases for its decisions’ or ‘afford Dr. Toledo and his counsel an opportunity to rebut those bases in a full and fair exchange of views.’ ”¹¹⁹ The District Court rejected Toledo’s arguments and wrote that the Secretary of State’s decision to extradite Toledo was based on considerations of international law on political extradition and that Toledo had been afforded adequate due process in the proceedings prior to the Secretary of State’s decision to extradite Toledo.¹²⁰ Following multiple appeals, the Ninth Circuit heard Toledo’s appeal of the denial of his writ of habeas corpus in April 2023.¹²¹

Toledo asserted that “he was not ‘charged with’ an extraditable offense because the extradition treaty requires a formal charge” and that “the ‘charging document’ Peru submitted was insufficient.”¹²² In reviewing Toledo’s appeal, the Ninth Circuit took a holistic approach to Toledo’s assertions regarding the charging document requirement within the United States-Peru Extradition Treaty. First, the Ninth Circuit analyzed the purpose of the United States-Peru Extradition Treaty, noting that “Article I of the United States-Peru Extradition Treaty provides for extradition of ‘persons whom the authorities in the Requesting State have charged with, found guilty of, or sentenced for, the commission of an extraditable offense.’ ”¹²³ Next, the Ninth Circuit provided background on Peruvian criminal procedure:

[A] Peruvian criminal proceeding has three phases: (1) preliminary or investigative, (2) intermediate or examining, and (3) trial. First, during the investigative phase, a prosecutor examines the facts and presents allegations to a judge of the Preliminary Investigation Court. When the investigation ends, the prosecutor must decide whether to dismiss the case or to issue an Acusación Fiscal and then seek a formal charge. Once a formal charge is sought, the prosecutor cannot further investigate. Second, during the examining phase, a judge of the Preliminary Investigation Court holds a preliminary hearing, during which the accused may object and present exculpatory evidence. At the end of this hearing, if the judge believes a formal charge is warranted, the judge issues an Orden de Enjuiciamiento. Finally, if an Orden de Enjuiciamiento issues, the parties proceed to a trial presided over by the Criminal Judge or the President of the Collegiate Court.¹²⁴

As Peru had issued an Acusación Fiscal in the corruption case against Toledo, the parties fought over “whether the accusations contained in the Acusación Fiscal suffice to ‘charge’ Toledo ‘with’ an extraditable offense under the Treaty.”¹²⁵ Toledo argued “that the United States-Peru treaty . . . requires ‘a copy of the charging document’ in addition to an arrest warrant.”¹²⁶ In rebutting Toledo’s assertion that a charging document was necessary and was not satisfied by the Acusación Fiscal, the U.S. government supported its argument by noting that the provision “charged with” elsewhere in the treaty was sufficient for the extraditing country to argue that a relator could be extradited without providing any specific document or official charge—therefore, the Acusación Fiscal satisfied the charging document.¹²⁷

The Ninth Circuit looked at the text of the treaty to determine the significance of the “charging document” provision within the United States-Peru Extradition Treaty in its entirety. The court found that the addition of “the charging document” was not necessary to find that Peru satisfied the requirements of the extradition treaty, finding support in Emami v. United States District Court for the Northern District and In re Assarsson. In both Emami and Assarsson, there was no “formal charge” listed in the U.S.-Sweden and U.S.-Federal Republic of Germany treaties to find that a relator might be extraditable, and as such, the requirement that there be “formal charges” in the foreign jurisdiction before the foreign country filed an extradition request was not a necessary requirement to find that the relators were extraditable.¹²⁸ The court utilized these cases even though neither case dealt with a “charging document” requirement. In Toledo’s case, the court found that “the Treaty does not mention formal charges or the Orden de Enjuiciamiento anywhere. And the requirement of a ‘copy of the charging document’—which specifies no particular document—does not define the level of formality [they] should read into ‘charged with.’ ”¹²⁹ The court found that such a reading would allow the Acusación Fiscal to be permitted as a “charging document” given that language elsewhere in the U.S.-Peru treaty equated “charged with” to “sought for prosecution,” and that the documents indicating an individual was “sought for prosecution” could encompass documents submitted before the Orden de Enjuiciamiento in Peruvian criminal proceedings—that is, the Acusación Fiscal—therefore satisfying the treaty’s requirements.¹³⁰

The Ninth Circuit furthered its analysis, finding that if “the charging document” was ambiguous, then the treaty’s drafting history and judicial precedents would assist the court in determining how to interpret the provision. The court stated that “charged with” could be broadly interpreted to mean any warrant-backed accusation presented by the Peruvian or United States governments, essentially making “the charging document” requirement null.¹³¹ The court looked to the Technical Analysis of the United States-Peru Extradition Treaty, which stated:

[T]he negotiating delegations intended that “charged” persons include those who are sought for prosecution for an extraditable offense based on an outstanding warrant of arrest, regardless of whether such warrant was issued pursuant to an indictment, complaint, information, affidavit, or other lawful means for initiating an arrest for prosecution under the laws in Peru or the United States.¹³²

The court further noted that “[their] rules of interpretation militate against reading in a requirement of particular formal charges where the treaty makes no such specification.”¹³³ Critically, the Ninth Circuit applied the default rule of treaty interpretation to Toledo’s case. Utilizing support from Supreme Court precedents, the court found that it should defer to the government agencies who were charged with negotiating and enforcing the treaty, as “such a construction enlarges the rights of the signatories and respects the interpretations given by [the] Executive Branch and the Peruvian government.”¹³⁴ The court found that because the treaty does not require that the requesting country provide formal charges to satisfy the extradition treaty’s requirements when submitting an extradition request, the Acusación Fiscal was sufficient to satisfy “the charging document” mandate. Moreover, in analyzing Peruvian criminal procedure, the court found that the Acusación Fiscal was a “charging document” as it provided a plethora of evidence, serving “the important purpose in the Peruvian system of signaling the end of discovery and moving the case from the prosecutor’s office to a judge of the Preliminary Investigation Court.”¹³⁵

In summary, the Ninth Circuit found that “the charging document” was an ambiguous term; properly interpreting it required extrinsic evidence and consideration of the two sovereign countries’ rights. Accordingly, the court relied on the draft treaty provisions and the Peruvian government’s standards around criminal procedure to analogize the Acusación Fiscal to a document that would satisfy “the charging document” requirement of the United States-Peru Extradition Treaty. It did so under the standard default rule. Because the Treaty was meant to expand the rights of the parties involved (in this case, the United States and Peru) to encourage extradition and the Treaty did not specify what document was required to extradite Toledo under the “charging document” requirement, Acusación Fiscal could be construed to be the charging document. However, as mentioned earlier in this Note, the Ninth Circuit had historically found that this approach might be prone to error.¹³⁶

Notably, as previously discussed, the Ninth Circuit utilized two cases regarding two treaties which did not include “the charging document” requirement to find that the Secretary of State had satisfied the requirements to extradite Toledo. By doing so, the court diminished the requirement that Peru provide a “charging document” when it found that the treaty had allowed for the extradition of individuals who were simply “charged with” extraditable offenses. Ultimately, this approach to “the charging document” requirement in the United States-Peru Extradition Treaty hints at the judiciary’s use of the default rule to ensure that the rights of sovereign nations are not infringed upon when they file an extradition request with the United States. After the Ninth Circuit’s decision, Toledo surrendered to be extradited to Peru in April 2023.¹³⁷

C.Vitkus v. Blinken

In 2023, the Fourth Circuit heard an appeal of a denial of preliminary injunction brought by Darius Vitkus, a citizen of the Republic of Lithuania.¹³⁸ Vitkus sought to prevent Lithuania from extraditing him for crimes he allegedly committed in 2008 and 2009 by filing for preliminary injunctive relief and a petition for writ of habeas corpus.¹³⁹ Vitkus owned a real estate business in Lithuania, and after it fell into bankruptcy proceedings, the Lithuanian authorities investigated him for various financial crimes between 2008 and 2010.¹⁴⁰ Notably, following the Lithuanian authority’s summons for questioning, Vitkus testified “that the Lithuanian police officers tied him to a chair, beat him, deprived him of water . . . , burned him with cigarettes” and asked about his political activities.¹⁴¹

Vitkus received three “Notification of Suspicion” documents during Lithuania’s criminal investigations, which all separately informed Vitkus that (1) he was a suspect in the Lithuanian authorities’ investigation of him, (2) he allegedly violated specific “Lithuanian code provisions,” and (3) he had engaged in “suspected criminal conduct.”¹⁴² After Vitkus left Lithuania, the Lithuanian authorities issued two orders of arrest for Vitkus.¹⁴³ The Lithuanian prosecutors created a document called a “Decision to Recognize D. Vitkus as a Suspect,” which “described Vitkus’s suspected criminal conduct and identified the implicated provisions of the Lithuanian criminal code”—this was allegedly decided based on the evidence the Lithuanian prosecutor gathered.¹⁴⁴ After moving to the United States, Vitkus applied for asylum and protection under the Convention Against Torture given his treatment by the Lithuanian government, which the Board of Immigration Appeals certified.¹⁴⁵

In May 2015, the Lithuanian government requested that the United States extradite Vitkus to Lithuania, advising the Department of State that Vitkus was a suspect in a criminal investigation and “wanted for prosecution in Lithuania in connection” with the various criminal investigations.¹⁴⁶ Lithuanian prosecutors provided supporting documents for their allegations against Vitkus that “summarized evidence gathered during the three investigations, along with copies of three orders for Vitkus’s arrest issued in connection with those investigations.”¹⁴⁷ Lithuania provided three Notifications of Suspicion and two Suspect Decisions to the United States, which later became the subjects of debate in the Secretary of State’s argument for extraditing Vitkus.¹⁴⁸

In response to Lithuania’s request, “the Secretary of State filed an extradition complaint in the Southern District of Florida, where Vitkus was then residing,” and extradition proceedings commenced in the Southern District of Florida.¹⁴⁹ During the proceeding, Vitkus argued that the Notifications of Suspicion and Suspect Decision did not “satisfy the charging document mandate” of the United States-Lithuania Extradition Treaty.¹⁵⁰ Vitkus also utilized the evidence provided by a Lithuanian attorney “who testified that, under Lithuanian law, only one document—an ‘indictment’—can be a ‘charging document’ for purposes of the charging document mandate.”¹⁵¹ The extradition court found that “deference was warranted to the Treaty interpretation of the Secretary of State and supported by Lithuania” and “ruled that the Notifications of Suspicion and Suspect Decisions ‘are sufficient to meet the requirements of’ the charging document mandate.”¹⁵² The court analyzed the extradition treaty between Lithuania and the United States, and utilized the executive branch’s argument to deny Vitkus’s argument that Lithuania did not comply with “the charging document” requirement of the extradition treaty:

The Secretary argued that the only purpose of the charging document mandate is to identify the charges for which Lithuania seeks to extradite Vitkus, and that the mandate does not require the initiation of any criminal charges. According to the Secretary, the charging document mandate is satisfied by the Notifications of Suspicion and Suspect Decisions. The Secretary supported that position with an affidavit of an attorney at the Department of State . . . and with a letter from a Lithuanian official called the Prosecutor General . . . . The State Department Affidavit averred that the Notifications of Suspicion and the Suspect Decisions are sufficient to satisfy the charging document mandate. And the Prosecutor General Letter maintained that the Notifications of Suspicion and Suspect Decisions ‘would be the equivalent of the charging documents referred to in’ the charging document mandate. The Letter also asserted that the proof required to identify a person as a suspect—and thus issue a Notification of Suspicion or Suspect Decision—‘should not be of the same level as necessary to substantiate the judgment of conviction or bringing charges (this occurs at a later stage of the criminal proceedings).’ ”¹⁵³

In a separate procedure following his transfer to Virginia, Vitkus filed a petition for a writ of habeas corpus and sought declaratory and injunctive relief in the Eastern District of Virginia. The court rejected Vitkus’s charging document argument, as it stated “that it gave ‘great weight’ to the Treaty interpretation presented by the Secretary of State,” and found that, along with the affidavits provided by the State Department and Prosecutor, the charging document mandate “can be satisfied by a document identifying ‘the violations of Lithuanian law that form the basis of Mr. Vitkus’s extradition, and . . . describ[ing] the facts underlying those alleged violations.’ ”¹⁵⁴

The Eastern District of Virginia summarized the Secretary of State’s argument in support of Vitkus’s extradition:

Lithuania has complied with the charging document mandate. Similar to Vitkus, the Secretary maintains that the language of the charging document mandate is plain and unambiguous. The Secretary maintains, however, that the charging document mandate does not require production of any particular type of charging document, and that it does not demand production of an indictment or something similar. According to the Secretary, the charging document mandate only requires the Requesting State to produce documents that sufficiently detail the alleged criminal violations and conduct, such as the Notifications of Suspicion and Suspect Decisions. The Secretary argues that the federal courts have consistently interpreted other treaties made by the United States to allow for extradition of persons who have not actually been criminally charged. Finally, the Secretary insists that, if the relevant text of the Treaty is ambiguous, his proposed construction thereof—that the charging document mandate requires only a document detailing suspected criminal conduct—adheres to the Treaty’s requirements and is entitled to deference.¹⁵⁵

The Fourth Circuit overturned the Eastern District of Virginia’s judgment. The majority of the Fourth Circuit found that “the Secretary’s construction of the charging document mandate does not ‘follow from the clear Treaty language’ ” and, therefore, the district court erred in utilizing it in its decision to reject Vitkus’s petition for a preliminary injunction.¹⁵⁶ The Court of Appeals for the Fourth Circuit first looked to the text of the treaty, finding that “if the [treaty’s] textual meaning is plain and cannot reasonably bear the government’s construction, then [the court] must reject that construction.”¹⁵⁷ The court looked to Article 8 § 3 of the Treaty, which requires that the Requesting State produce “a copy of the charging document.”¹⁵⁸ The Fourth Circuit noted that the “Secretary of State is not entitled to extradite Vitkus unless Lithuania first produces . . . a copy of ‘the charging document.’ ”¹⁵⁹ Looking at the grammatical structure of the phrase “the charging document,” the court found that the treaty required a “discrete document that initiates criminal charges” and that “the charging document mandate is plain and unambiguous, and it cannot be fulfilled by some document (or set of documents) that fails to perform the charging function—even if it or they contain similar information to ‘the charging document.’ ”¹⁶⁰

Moreover, the court utilized extrinsic evidence and looked to the Federal Rules of Criminal Procedure to analyze the “charging document” requirement in the treaty between the United States and Lithuania and analogize documents that the Lithuanian prosecutors produced in their investigation of Vitkus to relevant documents in U.S. criminal procedure.¹⁶¹ The Fourth Circuit found that the charging document mandate required that a requesting country produce a document “that performs the same function as an indictment, information, or complaint” in the United States.¹⁶² The court found that the documents that the Lithuanian government produced were akin to the “subject letters” and “target letters” which are used by federal prosecutors in the United States to inform individuals that they “are either a ‘subject’ or a ‘target’ of a federal criminal investigation.”¹⁶³ The Fourth Circuit summarized their findings on the matter by stating:

Critically, those identified as federal “subjects” and “targets” of criminal investigations have not been charged—unless and until they become defendants by virtue of an indictment, an information, or a complaint. The Notifications of Suspicion and Suspect Decisions relied on by the Secretary of State did not initiate criminal charges against Vitkus. They simply characterize him as a suspect, and thus do not satisfy the plain and unambiguous language of the Treaty’s charging document mandate.¹⁶⁴

The court also relied on the evidence provided by the Lithuanian attorney supporting this argument, noting that the documents provided by the Lithuanian government “remain in a pretrial investigation stage” and that there is a difference “between the sufficiency of evidence needed to confer the status of ‘suspect’ and that needed to ‘bring[] charges,’ which ‘occurs at a later stage of the criminal proceedings.’ ”¹⁶⁵ The Fourth Circuit acknowledged the Secretary of State’s argument that the United States had extradited individuals who had not been formally charged in the requesting country prior to the extradition request.¹⁶⁶ The Fourth Circuit compared the United States-Lithuania treaty to other treaties which show either the absence of “the charging document” requirement—in a form of expressio unius interpretation—or contain the requirement that requesting countries produce “a copy of the charging document, if any” to indicate the importance of a specific charging document in extradition proceedings between Lithuania and the United States.¹⁶⁷ Additionally, the Fourth Circuit found that the inclusion of the charging document requirement was intentional, and that “the Treaty language agreed to by the parties must be adhered to and carry the day.”¹⁶⁸ The Fourth Circuit stated that Lithuania could not proceed with the extradition without producing the charging document, as Lithuania “cannot produce ‘the charging document’ when no criminal charges have been filed.”¹⁶⁹

The Fourth Circuit explicitly rejected the Ninth Circuit’s statement that “the charging document mandate ‘makes no difference’ ” given its arguments regarding the grammatical structure of the phrase, the evidence provided by both parties, and the text of the treaty.¹⁷⁰ The Fourth Circuit also denied the Secretary of State’s interpretation of the treaty, arguing that as the charging document mandate was clear and unambiguous, the court “do[es] not owe deference to the Secretary.”¹⁷¹ In doing so, it found that the Notifications of Suspicion and Suspect Decisions produced by the Lithuanian prosecutors did not initiate criminal charges against Vitkus and were insufficient to satisfy the extradition treaty’s requirements.

Judge Quattlebaum, writing the dissenting opinion in Vitkus v. Blinken, highlighted the majority’s unwillingness to utilize the default rule. Judge Quattlebaum noted that “the district court’s decision to side with the Secretary’s interpretation over Vitkus’ faithfully applies Supreme Court precedent requiring deference to the Secretary.”¹⁷² Judge Quattlebaum found that “the Secretary produced evidence supporting a broader interpretation of [the charging document] in the context of an international extradition treaty,” by providing context regarding the nature of the Lithuanian prosecutor’s documents in support of its extradition of Vitkus to Lithuania.¹⁷³ Judge Quattlebaum also appeared to be persuaded by an affidavit written by a State Department attorney, who noted that the treaty between Lithuania and United States includes provisions for extraditing individuals who are “sought for prosecution,” and “that a formal indictment cannot be sought under Lithuanian law until the prosecution receives Vitkus’ position on the notification of suspicion documents.”¹⁷⁴

Judge Quattlebaum found both the Secretary’s interpretation of the treaty and Vitkus’s interpretation of the treaty plausible.¹⁷⁵ He found that within the extradition treaty between the United States and Lithuania,

Article 8, the section setting forth the required documentation that must accompany an extradition request, refers to individuals ‘sought for prosecution.’ [W]hile . . . ‘charged with’ may suggest a formal charge, ‘sought for prosecution’ is broader. It could also be plausibly read . . . to include persons wanted for prosecution by Lithuania, such as Vitkus, who are wanted to stand trial for specific crimes, but for whom a formal charging document akin to the ones used in the United States may not have been issued.¹⁷⁶

In stating that the Secretary’s argument was plausible, Judge Quattlebaum utilized the default rule to argue that the judiciary should defer to the executive branch’s interpretation of a treaty when two possible interpretations are apparent.¹⁷⁷ Judge Quattlebaum found that the Ninth Circuit’s opinion in Manrique v. Kolc was persuasive, given that the Ninth Circuit similarly analyzed “the charging mandate” within the extradition treaty between the United States and Peru, and that Vitkus presented the same argument that Toledo presented to the Ninth Circuit.¹⁷⁸ Judge Quattlebaum noted that the court denied Toledo’s argument, as the treaty between Peru and the United States did not have explicit language mentioning “formal charges or the Orden de Enjuiciamiento,” and that the court “noted that documents submitted by Peru sufficiently identified the crimes that the petitioner was accused of and summarized the supporting evidence.”¹⁷⁹ Judge Quattlebaum also found the court’s deference to the executive branch indicative of how the treaty between Lithuania and the United States should be interpreted.¹⁸⁰ Finally, in concluding, Judge Quattlebaum stated, “the Secretary’s view that documents submitted by Lithuania satisfy the treaty’s charging document requirement is, at the very least plausible. When that is the case, we must defer to the Executive Branch’s interpretation of treaties that it has been charged with negotiating and enforcing.”¹⁸¹

Given the discrepancy between the foreign criminal court procedures in Peru and Lithuania, it is unclear whether the Fourth Circuit would have found that Peru satisfied the requirements of its extradition request. However, the Fourth Circuit’s opinion sheds light on the relationship between the executive and judiciary branches in extradition proceedings: it is apparent that the Secretary of State’s influence on extradition is substantial, especially when the judiciary analyzes treaty agreements. When the court in Vitkus v. Blinken acknowledged the default rule, it noted the competing interests at stake in Lithuania’s extradition request, namely the executive’s interest in maintaining foreign relations and the public’s interest “in seeing its governmental institutions follow the law.”¹⁸² Nevertheless, by determining that the “charging document” lacked the requisite ambiguity to apply the default rule, and accordingly, finding the executive’s interest did not outweigh the public’s interest in seeing the government follow the law, the Fourth Circuit upheld Vitkus’s fundamental due process rights by following the procedures outlined in the treaty as written and ensuring that the extradition proceeding was fair. The Fourth Circuit’s decision and its implications will be explored further in Part III.

III. INTERNATIONAL RELATIONS AND DUE PROCESS

A.Due Process and Treaty Interpretation

Although not directly stated in the circuit courts’ opinions, the analyses of the Lithuania-United States and Peru-United States extradition treaties shed light on the due process rights afforded to relators in the United States. The constitutional rights of relators, vested in them by their presence in the United States, are at odds with the executive branch’s responsibility to uphold relations between the United States and foreign nations.¹⁸³ The Fourth Circuit’s interpretation of “the charging document” upheld Vitkus’s due process rights—the Fourth Circuit deferred to the plain language of the treaty, and finding the executive branch’s argument unpersuasive, ensured that the executive’s influence did not overshadow the judiciary’s role in the extradition process.

Legal scholars have analyzed the intersection of due process and the extradition process, focusing on the rule of non-inquiry, the possibility of double jeopardy, the rule of specialty, and hearsay exceptions. Additionally, due process concerns intersect with the appropriateness of a court’s use of the default rule to interpret provisions of extradition treaties because broadening of the rights of the nations who sign extradition treaties affects the liberty of a person sought for extradition.¹⁸⁴

International due process encompasses “the assurance that ‘the judiciary [is not] dominated by the political branches of government,’ ”¹⁸⁵ and implicitly in accordance with this principle, the Fourth Circuit limited the executive’s political objective by enforcing its statutorily granted power to deny extradition. Powerless to change the structure of the United States-Lithuania treaty, the Fourth Circuit, in its decision in Vitkus v. Blinken, highlights not only the importance of specificity in extradition treaties but also the risk of harming an individual’s fundamental right to due process by giving undue deference to the executive branch’s interpretation of extradition treaties.

The default rule of treaty interpretation, as addressed in Part I of this Note, has been criticized by scholars for being outdated: it was formed before human rights concerns of relators were properly addressed by courts in considering whether to certify the relators’ extradition to the requesting country.¹⁸⁶ The judiciary implemented the default rule at a time when human beings were not subjects of international law—when the Supreme Court issued its Laubenheimer decision in 1933, sovereign countries, not individuals, were considered the beneficiaries of rights that flowed from treaties.¹⁸⁷ The default rule upheld the sovereign signatories’ right to extradite individuals wanted for prosecution, and continues to be upheld in some form by the Vienna Convention on the Law of Treaties.¹⁸⁸ The default rule continues to exert influence over the extradition interpretation process even as the human rights of relators have become a prominent and important consideration in the extradition process.¹⁸⁹

The Ninth Circuit’s understanding of Peruvian criminal procedure and the deference it afforded the United States executive branch bring to light the potential risks of applying the default rule. The court in Manrique v. Kolc considered the evidence provided by both the Peruvian prosecutors and the State Department to understand “the charging document” requirement in the Peru-United States Extradition Treaty, and in doing so, the court contextualized the requirements of the treaty.¹⁹⁰ This analysis favored the Secretary of State’s interpretation—as noted previously, extradition proceedings are distinct from criminal trials, and the judiciary may be comfortable with some bias in a proceeding that does not determine the guilt or innocence of the accused.¹⁹¹ However, the court’s deference to the Secretary of State’s interpretation of the “charging document” could be read as the court’s inclination to uphold foreign relations with Peru at the potential expense of Toledo’s liberty rights. As the court acknowledged, the risk of misinterpreting the requirements of the treaty was great: Toledo would be sent to Peru to face trial and be imprisoned, and his ability to file a habeas petition would be nullified by his presence in the Peruvian criminal justice system.¹⁹²

Vitkus v. Blinken implicitly renounces the traditional application of the default rule: the Fourth Circuit alludes to the pressure the executive branch places on the judiciary to comply with the Secretary of States’s understanding of a provision of a treaty—especially when the judiciary finds that the provision in question is clear and unambiguous.¹⁹³ In finding that “the charging document” mandate was clear and unambiguous in its requirement that a discrete document was to be produced by the Lithuanian government, the Fourth Circuit protected Vitkus from a questionable extradition request when it found that the treaty required that the requesting country produce a specific document charging him with a crime. By doing so, the Fourth Circuit found clarity in the procedural requirements established in the extradition treaty and potentially upheld Vitkus’s Fifth Amendment due process rights. However, it is important to note that should the majority of the Fourth Circuit have found that “the charging document” requirement was an ambiguous provision in the treaty, then there would have been a possibility that the court would have applied the default rule.

The Fourth Circuit also implicitly respected principles of international law on due process by ensuring that the political branch did not dominate the proceeding by compelling the court to recognize its interpretation of “the charging document” requirement.¹⁹⁴ International due process requires that trials are “fair” and are not “dominated” by the political branch.¹⁹⁵ However, as discussed previously, extradition proceedings are not trials, and a challenge against an extradition proceeding for being “unfair” was notably discounted by a Nevada District Court in 2023 in Sridej v. Blinken, in which the court referenced two cases from the 19th and early 20th centuries to note that the extradition procedure did not require the formalities of other judicial proceedings.¹⁹⁶ This case also underscores contemporary federal judiciary’s deference to understandings of international law codified before the duties of upholding international due process became binding on the American judiciary. Accordingly, although Vitkus might have been able to raise that the executive branch’s interpretation of “the charging document” would not be “fair,” it would be unlikely to be held as a viable argument against the certification of his extradition by the judiciary.

The interpretive dissonance surrounding “the charging document” requirement could be remedied by diminishing deference to the executive branch in treaty interpretation: the judiciary is tasked with interpretation in the extradition process specifically because its legal acumen regarding interpretation is more developed than the executive branch’s legal acumen. By not affording as much deference to the Secretary of State’s interpretation of “the charging document” as the Ninth Circuit had afforded, the Fourth Circuit’s approach to interpreting the U.S.-Lithuania treaty was more consistent with its obligations under international law: it sought to provide a fair hearing to Vitkus and did not near the point of acting “at the whim” of the executive branch.

Another consideration for remedying this tension between the judiciary and executive branch, with some limitations, would be to include more specific language in bilateral extradition treaties regarding a sovereign nation’s criminal procedure. Although, as stated in Part I of this Note, the judiciary has no authority to alter bilateral extradition treaties that the United States executes with foreign governments, Vitkus v. Blinken exemplifies the kind of case that could incentivize the executive branch to negotiate extradition treaties that have specific language relevant to the parties’ criminal procedures. By doing so, the U.S. and a sovereign signatory to a bilateral extradition treaty could prevent interpretive friction in the United States judiciary and allow for more expeditious extradition processing. Specifying the documents that better ascertain the level of probable cause established in a foreign proceeding could not only protect relators from extradition that invades their constitutional and international human rights but also the judiciary from breaching rules of non-inquiry and incorrectly interpreting a foreign country’s criminal procedure.¹⁹⁷ However, this would not be a salve to the protection of international human rights of relators: a country without an independent judiciary could likely still satisfy the document requirement even if it were specified, and the risk of violating a relators’ due process rights might still be an issue, albeit in a different form than the one at issue in this Note.

B.Relevant Background

The two circuit opinions may also differ for reasons not explicitly stated by the published decisions. Although Toledo raised the possibility of maltreatment and suffering while awaiting trial in a Peruvian prison, his argument failed to trigger a humanitarian concern by the court.¹⁹⁸ Notably, courts in the United States may disavow the rule of non-inquiry should the relator raise the possibility of meeting human rights abuses by the requesting state in the event the extradition court certifies extradition—Toledo’s argument regarding his ill health does not align with the circumstances the court considers in extradition.¹⁹⁹ On the other hand, Vitkus’s testimony about his arrest in Lithuania does support a contention that he could be tortured should the U.S. certify Lithuania’s extradition request, given that while applying for asylum, the “Board of Immigration Appeals (the ‘BIA’) found in 2014 that Vitkus’s ‘credible testimony established that he was beaten, burned, and nearly asphyxiated by [Lithuanian] police officers, who inquired into his contributions to a political party.”²⁰⁰ The findings of the Board of Immigration Appeals did not preclude the extradition court from certifying Vitkus for extradition.²⁰¹ Vitkus’s torture in Lithuania—allegedly related to his political involvement in Lithuania with a political group called “the Russia party”²⁰²—may have implicitly prompted the court to consider that the Lithuanian criminal proceedings would violate Vitkus’s human rights upon returning to Lithuania. This concern might have informed the Fourth Circuit’s view that “the charging document” requirement was a clear and unambiguous requirement that Lithuania provide a discrete charging document.

C.Foreign relations and the interpretation of “the Charging Document” requirement

The United States uses extradition treaties to prevent U.S. citizens and non-U.S. citizens alike from utilizing the United States as a safe haven when they have committed crimes on foreign soil, and are tools used by the United States to uphold its relationships with foreign countries.²⁰³ The default rule of treaty interpretation supports the executive branch’s role of upholding its treaty obligations as the governmental body responsible for foreign relations. Extradition treaties are entered into by the executive branch in its process of conducting foreign relations, creating international agreements regarding extradition unifies countries in a common, collaborative law enforcement apparatus.²⁰⁴ There are many reasons for entering into a collaborative law enforcement apparatus, including “ensuring that fugitive criminals do not go unpunished for their alleged crimes, discouraging crime throughout the world, and protecting nations from fugitive criminals by eliminating the possibility of safe havens for fugitive criminals.”²⁰⁵ Allowing countries to extradite individuals strengthens the relationship between the two countries, while not cooperating with an extradition request, especially when issues regarding erroneous treaty interpretation arise, hampers international relations between the countries.²⁰⁶ When considering the factors for staying a pending appeal (“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; “and (4) where the public interest lies”),²⁰⁷ courts have noted that noncompliance with extradition requests diminishes the “force” of extradition treaties, and that “[i]f other countries lose confidence that the United States will abide by its treaties, the United States risks losing the ability to obtain the extraditions of people who commit crimes here and flee to other countries.”²⁰⁸ This may be the reason why the Secretary of State, who ultimately decides whether to proceed with an extradition request once the court certifies a relator for extradition, does not often refuse to surrender those sought by a foreign country for prosecution.²⁰⁹

In denying Lithuania’s extradition request, the Fourth Circuit may have chipped at the United States’ relationship with the Lithuanian government by rejecting the default rule.²¹⁰ Although the U.S. government does not rescind the entire extradition treaty when the requestor country fails to extradite an individual, failing to extradite prohibits the flow of criminals between countries, and can encourage the impression that the U.S. can be held as a safe haven for criminals.²¹¹ Moreover, international comity would be ill-served by the uncertainty a requesting country may face when summoning an individual from the United States, should the relevant treaty have a “charging document” requirement.

CONCLUSION

As the two circuit court opinions in 2023 demonstrate, the default rule of treaty interpretation continues to influence the judiciary’s role in determining whether to certify a foreign nation’s extradition request. In the Ninth Circuit opinion in Manrique v. Kolc, the court was partial to the Secretary of State’s interpretation of “the charging document” requirement in its extradition of Toledo—the court found the “charging document” requirement to be relatively inconsequential in finding that the Peruvian government had satisfied its extradition request by providing an Acusación Fiscal. However, in Vitkus v. Blinken, the court was more dubious of the Secretary of State’s interpretation of the treaty and disagreed that the documents that the Lithuanian government had provided to extradite Vitkus satisfied the requirements listed in the U.S.-Lithuania Extradition Treaty.

By continuing to find opportunities to utilize the default rule in interpreting extradition treaties, the judiciary is more likely to impinge on the constitutional due process rights of relators in an effort to appease the executive’s concern with maintaining foreign relations with sovereign countries.²¹² The divergence in interpretation of “the charging document” highlights the possibility of two diametrically opposite outcomes for those who face extradition, with important implications: the removal of an individual from the United States to a requesting country, and therefore, the removal of the constitutional rights afforded to them when they are physically in the United States. Vitkus v. Blinken, in acknowledging the default rule, noted that although there is a legitimate public interest in extraditing criminals to the countries that request them, the executive’s obligations to follow the law should not be outweighed by its duty to maintain foreign relations; doing so honors the procedural safeguards written into a treaty.

The judiciary’s continued use of the default rule is in tension with the development of international human rights. Manrique v. Kolc embodies the risk to internationally recognized due process rights when courts cite to the default rule of treaty interpretation: the court in Manrique appeared to interpret “the charging document” to conciliate the executive branch. Toledo is not the only relator who has argued that the extradition process did not comport with due process: relators have raised arguments about various components of the extradition process that violate fundamental due process rights. As precedents almost require that the judiciary does not consider these arguments, the judiciary should gradually reduce the weight of the default rule of treaty interpretation so that extradition proceedings align more closely with the fairness and juridical equality requirements of the fundamental human right to due process.

Because the United States is a party to at least twenty-eight bilateral extradition treaties that contain “the charging document” requirement, arguments as to its ambiguity will likely arise again. Accordingly, to better uphold the due process rights of relators, courts should defer to the executive branch and the plain text of the relevant extradition treaty proportionally to ensure that decisions are in line with customary international law on due process. By critically analyzing the default rule, the courts will be better equipped to uphold their obligations to the rights of relators: rights granted by the Constitution and by international law on the fundamental right to due process.

98 S. Cal. L. Rev. 761

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Jacob M. Karlin*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. 2017, Science in Society Program, Wesleyan University. All views and conclusions expressed in this Note are solely my own and do not express the opinions or positions of my employer. Many thanks to Professor Marcela Prieto for her invaluable guidance throughout the drafting process. I also want to thank the talented Southern California Law Review staff and editors for their work throughout the publication process.

Introduction

I. The Developing Practice of Forensic DNA

A. DNA Science

B. DNA and Exonerations

C. Familial DNA

II. The Privacy Argument for Restricting Familial DNA

A. The Constitutional Dimension

B. DNA and the Fourth Amendment

C. The Case for Genetic Privacy post-Carpenter

1. The Scholarly Debate

2. Legislative Responses

D. The Fourth Amendment Argument Against Familial DNA Searches is Weak

III. The Due Process Rights of the Innocent Suspect

A. The Compulsory Process Clause

The Subpoena Power

The Right to Present a Defense and its State-Rule-Based Limitations

Constitutional Limitations

Conclusions on Familial DNA and Compulsory Process

B. The Due Process Right to Exculpatory Evidence

1. Brady and DNA

2. Conclusions on Brady and Familial DNA

C. Due Process Rights to Post-Conviction Proceedings Under State DNA and Innocence Statutes

The Lack of Constitutional Innocence Claim

State Post-Conviction Statutes

Post-Conviction Statutes and Familial DNA

Conclusion: Adjudicating Due Process in Conflict

98 S. Cal. L. Rev. 761

INTRODUCTION

I. BACKGROUND

A.Executing Bilateral Extradition Treaties

B.The Extradition Process in the United States: Foreign Requests

C.Extradition Treaty Interpretation in the United States

II. INTERPRETING THE “CHARGING DOCUMENT”

A.Overview of the Circuit Split

B.Manrique v. Kolc

C.Vitkus v. Blinken

III. INTERNATIONAL RELATIONS AND DUE PROCESS

A.Due Process and Treaty Interpretation

B.Relevant Background

C.Foreign relations and the interpretation of “the Charging Document” requirement

CONCLUSION

98 S. Cal. L. Rev. 761

Table of Contents