Justice David Souter led the charge for the ability of convicts like William Osborne of Alaska to have the right to re-test DNA evidence. "His strongest argument or his -- his basic argument is this evidence is potentially so important that the State has no valid interest in keeping [Osborne] at least from seeing it; i.e., testing it."

But other justices weren't as comfortable with that idea. Justice Antonin Scalia was the most vocal in his opposition. He suggested such a right would allow the accused to "game the system."

A concern also shared by Justice Anthony Kennedy who told Osborne's lawyer "what you are doing is setting up a game in which it would be really unwise to have the DNA test. Take your chances. You have a -- you have a built-in -- you have a -- a built-in second chance. And that's just -- that's just not sound trial strategy, counsel, and you know that."

Chief Justice John Roberts repeatedly returned to the idea that if the court were to grant the right for post-conviction DNA testing that it would then open for debate a slew of other problems.

"I'm trying to figure out what the limit of the constitutional right you're asserting is," Roberts asked. He went on to wonder if there would be re-testing rights at other stages in the trial process or even for fingerprint analysis and he questioned how long states would have to preserve DNA evidence in the name of this right.

Osborne was convicted of raping and nearing killing an Anchorage prostitute in 1993. At trial, his lawyers made the strategic decision not to seek more stringent DNA testing for fear that it would more strongly inculpate their client. Osborne is now seeking to re-test that DNA on the hope that it will lead to his freedom.

Osborne's attempts however have not also included a claim of innocence drawing the ire of a number of justices who wondered why they should confer a constitutional right on someone who doesn't even claim he is an innocent man. Today's oral arguments also drew out the fact that under Alaska law, Osborne could petition for the retesting of the DNA evidence if he does so while also claiming innocence. Something he has yet to do.

This development opens the door for the court to send the case back for further proceedings without answering the constitutional question. That potential ruling would be supported by the federal government which joined the case on behalf of Alaska.

"[T]he unusual facts of this case, which include failure to attest to actual innocence under threat of perjury, two recent confessions to the crime, and a tactical decision at trial to forego a highly discriminating....DNA test, all together make this a particularly poor candidate for recognizing a new constitutional entitlement," said Neal Katyal arguing his first case before the court as deputy solicitor general.

If the court does issue a ruling declaring a federally protected constitutional right to post-conviction DNA testing it isn't clear that it would have that much of an impact because most states already have statutes in place for such testing. Alaska is one of six states that does not guarantee that right.