joined by Coats, Chief Judge, concurring.
This case raises the question of whether an Alaska court has the authority, in the absence of a pertinent statute, to order post-conviction DNA testing of physical evidence-and if so, under what cireumstances a court should exercise that authority. The resolution of this question requires us to balance two competing principles of the criminal justice system. Our task is hard because both principles are crucially important to the fair administration of criminal justice.
The first principle is that, after we are assured that a defendant has received a trial conducted in accordance with the procedural requirements of our constitution, our statutes, and our court rules, society has a justifiable interest in prohibiting the defendant from seeking to re-open the litigation.
All of these procedural protections-at trial, on appeal, and in post-conviction relief litigation-are designed to ensure, to the extent humanly possible, that only the truly guilty are punished. To be sure, it is seldom possible to attain absolute certainty when we try to reconstruct and analyze human affairs. But after a defendant has received the benefit of all required procedural protections, society can justifiably insist that the defendant's conviction not be subjected to further attack.
As this Court explained in Grinols v. State,
Society has a substantial interest in making sure that criminal litigation eventually reaches an end. All persons involved in the litigation-defendants, victims, families and friends, investigative agencies, as well as the public at large-have a right to expect that criminal cases will be finally resolved at some point. If prisoners are allowed to assert claims long after their trials, society runs the risk that re-trials may be ordered years after the event, when witnesses may no longer be available or their memories of the pertinent occurrences have been lost or diminished. In addition, piecemeal litigation of successive and often fruitless post-conviction claims poses a significant cost to the courts and the other components of the criminal justice system.
Grinols, 10 P.3d 600, 605-06 (Alaska App.2000). Moreover, as our supreme court recognized in Merrill v. State,
finality may be a crucial element [in the] effectiveness [of the criminal law]. A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of [administering] justice that cannot but war with the effectiveness of the [law's] underlying substantive commands. Furthermore, ... an endless reopening of convictions, with its continuing underlying implication that perhaps the defendant can *983escape from corrective sanctions after all, [is potentially inconsistent] with the aim of rehabilitating offenders.
Merrill, 457 P.2d 281, 236 (Alaska 1969).
In the present case, William Osborne was tried and convicted of sexual assault and his conviction was affirmed by this Court on appeal.1 He then litigated and lost a claim of ineffective assistance of counsel in the superi- or court, and this Court affirmed the superi- or court's resolution of the ineffective assistance claim.2 At this point, society has a weighty interest in insulating the jury's verdict from further attack.
Nevertheless, our criminal justice system is also founded on a second principle: that innocent people should not be punished. In theory, this second principle should not normally conflict with the first principle described above. But police investigations and jury trials are conducted by human beings.
There are times when evidence of the defendant's guilt is fabricated, or evidence of the defendant's innocence is willfully suppressed. We trust that these occasions are few. But even the most serupulous and honest police officers, witnesses, and victims sometimes work from limited knowledge, or are hampered by preconceived notions, or are simply mistaken. And jurors must make their decision based on the evidence presented in court. In short, our justice system is run by human beings who ultimately are fallible.
Despite our society's best efforts, and despite total compliance with the procedural protections specified by law, innocent people are in fact convicted. This Court noted several instances of this in footnote 52 of our Grinols opinion (10 P.3d at 616). And earlier this spring, the Anchorage Daily News carried an account of yet another man who was freed after serving years in prison for a rape he did not commit. The victim initially identified the man as her attacker. But after being confronted with genetic evidence and other cireumstantial evidence indicating that the wrong man had been identified, the victim acknowledged that she was no longer certain of her identification.3 Because of this risk that we have punished the innocent, even when a defendant has been found guilty after a fair trial, the law must make some provision for re-examining a criminal conviction if it appears that the verdict is mistaken. Alaska law currently contains two such provisions.
Under Alaska Criminal Rule 33(c), a defendant may file a motion for a new trial based on newly discovered evidence within 180 days of the final judgement. To obtain relief under Criminal Rule 38, the defendant must make a threshold showing that the evidence is truly newly discovered, and that diligent effort would not have revealed this evidence any sooner.4 Assuming these two requirements are met, the defendant must then convince the court that the evidence is not merely cumulative or impeaching, and that the evidence is so significant that it would probably lead to a different verdict if the defendant's case were re-tried.
Even if a defendant misses the 180-day time limit specified in Criminal Rule 33(c), the defendant can seek post-conviction relief under AS 12.72.010(a)(4) on the basis that new evidence "requires vacation of the [defendant's] conviction ... in the interest of justice". Normally, a petition for post-conviction relief must be filed within two years of the final judgement (or within one year after that judgement is affirmed on appeal).5 However, AS 12.72.020(b)(@Q2)(D) declares that, "[n]otwithstanding [this time limitation], a court may hear a claim [for post-conviction relief] based on newly discovered evidence if the applicant establishes due diligence in presenting the claim and [the new evidence] *984establishes by clear and convincing evidence that the applicant is innocent."
The problem facing Osborne in the present case is that the DNA testing he proposes would not yield "new evidence" for purposes of either Criminal Rule 33 or AS 12.72.010(2). Under both of these provisions, a defendant must show that the evidence was not available sooner, despite diligent efforts to uncover it. But as we explained in our earlier opinion, Osborne v. State, 110 P.3d at 989-990, a DNA analysis of the physical evidence was conducted by the State crime laboratory in advance of Osborne's trial, and the results of this testing were available to Osborne and his attorney. It is true that Osborne now proposes a different, more discriminating DNA test-but this more discriminating DNA was also available at the time of Osborne's trial. Osborne's attorney actively debated whether to pursue this more discriminating test, but she ultimately decided not to-because the State's DNA testing was not extremely probative (roughly fifteen to sixteen percent of the relevant population had matching DNA), and because the results of a more discriminating test might have been much more incriminating to Osborne. Id. at 990.
(We concluded that, under these circumstances, Osborne's attorney acted competently when she chose not to pursue the more discriminating test. Id. at 992.)
Given these facts, it would seem that equity does not favor Osborne. Osborne's attorney could have asked for the more discriminating DNA test, but she understood the risk of performing this test, and she consciously chose to go forward without this evidence. Now, years later, Osborne asserts that the more discriminating DNA test must be run, and that his guilt must be re-evaluated.
As our supreme court explained in Owens v. State, 613 P.2d 259, 261 (Alaska 1980), a defendant should not be allowed to "take a gambler's risk and complain only if the cards [fall] the wrong way". See Riofta v. State, 134 Wash.App. 669, 142 P.3d 193 (2006), where the Washington Court of Appeals discussed a similar case:
[There is nothing "new" about the [physical evidence] or any information that [DNA testing] may [yield]. DNA testing of comparable accuracy was available at trial. Because [the defendant] chose not to test the [physical evidence] at trial does not mean that any information discoverable through post-conviction testing is now “neW-”
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[A] strained consequence results if we were to [adopt] the hyper-literal interpretation [of "new evidence" that the defendant] urges[.] [This interpretation would] allow[ ]- a defendant to take a "wait and see" position on DNA testing by trying to gain [an] acquittal without the DNA information but, following conviction, moving to test the DNA.
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Accordingly, we hold that ... [i]f a person requests [post-trial] DNA testing of evidence [and] the same or comparable testing [was available at trial, any] information that the [post-trial] testing might reveal ... is not "new". ...
Riofta v. State, 142 P.3d at 200.
It therefore appears that, under the applicable Alaska statutes and court rules, Osborne would not be entitled to relief even if renewed DNA testing conclusively established his innocence.
And yet, if we are indeed committed to the principle that we should not punish people who are demonstrably innocent, it would seem that our criminal justice system should have a fail-safe mechanism for reviewing criminal convictions even in situations like Osborne's-that is, even when a defendant has knowingly chosen to go to trial without seeking to uncover the evidence that the defendant now asserts will demonstrate their innocence.
If Osborne could show that he were in fact innocent, it would be unconscionable to punish him, even if that punishment would ostensibly comport with all of our law's procedural requirements. As this Court suggested in Grimols, 10 P.3d at 617, the due process clause of the Alaska Constitution might require us to intervene in cases where a defendant presents clear genetic evidence of their *985innocence, even if the rules governing motions for new trial and petitions for post-conviction relief would bar the defendant from obtaining any relief.
Here, Osborne has not offered any genetic evidence. Rather, he asks this Court to order re-testing of the condom found at the scene of the erime so that he can obtain new genetic evidence that might conceivably favor his claim of innocence.
In our prior opinion in Osborne's case, we assumed that this Court would be obliged to order the proposed DNA testing if Osborne could show that a favorable test result would conclusively establish his innocence. Osborne, 110 P.3d at 995. We then remanded Osborne's case to the superior court, directing the superior court to decide whether, under the facts of Osborne's case, he could meet this requirement for renewed DNA testing. Id.
As explained in the lead opinion, Judge Gleason concluded that even if renewed DNA testing yielded the result most favorable to Osborne-that is, even if the renewed testing showed that Osborne could not be the source of the genetic material found on the condom-this test result would not conclusively establish Osborne's innocence.
Given the evidence in Osborne's case (both the evidence presented at Osborne's trial and the additional fact that Osborne has since confessed his guilt), Judge Gleason correctly concluded that, no matter what results the proposed DNA testing might yield, this renewed testing could not conclusively establish Osborne's innocence. Thus, even if the due process clause would require additional or renewed DNA testing in some instances, re-testing is not required in Osborne's case.
For these reasons, I agree with my colleagues that the decision of the superior court should be affirmed.
. Jackson and Osborne v. State, Alaska App. Memorandum Opinion No. 3330 (February 7, 1996), 1996 WL 3368644.
. Osborne v. State, 110 P.3d 986 (Alaska App.2005).
. "Judge clears man in prison for 1982 rape", Anchorage Daily News, April 10, 2007, page A-3.
. See Dorman v. State, 622 P.2d 448, 455-56 (Alaska 1981), quoting Salinas v. State, 373 P.2d 512, 514 (Alaska 1962).
. AS 12.72.020(a)(3)(8).