Whether it is a State, Federal, or Military criminal prosecution, the loss of evidence or the failure to preserve favorable evidence can undermine a criminal defendant’s ability to successfully mount a defense. The police/investigators are the first persons investigating a crime. They do this, normally, before anyone has been charged and hopefully soon after the crime occurred. A subsequent criminal defendant has no motive to and often lacks the resources to start a criminal investigation at the same time the police are investigating. But what happens if the police fail to seize some evidence that the defendant later identifies as being favorable to his defense? What happens if the police seize some evidence but later destroy it or release it back to the owner? Unfortunately, in many cases the simple fact that the evidence is favorably may not be a vehicle for meaningful relief under the law.
The Due Process Clause of the United States Constitution obligates the prosecution to disclose and retain evidence. Brady v. Maryland (1963) 373 U.S. 83; California v. Trombetta (1984) 467 U.S. 479; and Arizona v. Youngblood (1988)488 U.S. 51. This evidence includes exculpatory evidence, meaning evidence that would help the defendant exonerate himself of the charges or show defendant’s reduced role in the crime. When the prosecution destroys or refuses to share such evidence, there is a due process violation regardless of the good faith or bad faith of the prosecution. Brady, supra, p. 87.
Such evidence must be disclosed if it is “material, that is, if there is a reasonable probability the evidence might have altered the outcome of the trial.” United States v. Bagley (1985) 473 U.S. 667, 682.
The duty to retain evidence is distinguishable from the duty to disclose. In Trombetta, supra, for example, the police did not preserve the breath sample of a DUI driver. The defendant argued that the state had a duty to retain the sample. The court, however, found that the officers were acting in good faith and according to normal procedures in not retaining the sample. The court implied that it must see evidence of bad faith by the police in failing to retain the evidence, i.e., destroying it when they know of its exculpatory value, for the court to dismiss the case.
Youngblood, supra, went further. It was a sexual assault case. In Youngblood, the state had failed to maintain fluid samples from the victim’s clothing and body. Unlike in Trombetta where the breath sample was destroyed after testing was complete, in Youngblood the fluid samples were destroyed before testing was done. Moreover, by the time the police tried to test the victims clothing, they could not because the clothing had seen improperly refrigerated.
In Youngblood, as in many sex cases, the defendant argued that he was not involved. He claimed the police arrested him based on mistaken identity. The testing of the clothes and fluids would have exonerated him. The defendant was then convicted and appealed. The U.S. Supreme Court looked at the case and refused to overturn the conviction, holding that defendant must show bad faith of the police to show a due process violation based on a breach of the duty to retain.
In other words, if the evidence is only “potentially exculpatory,” a defendant must show bad faith by the police to have the court dismiss a case. On the other hand, if evidence is destroyed or lost after its exculpatory value was apparent (obvious and clear, also sometimes referred to as “apparently exculpatory”), and the evidence is of such a nature that the defendant cannot obtain comparable evidence by other reasonable means, the defendant should be entitled to relief regardless of how or why it was lost or destroyed.
But happens if the police never even seized the evidence to begin with? Let’s look at the Air Force case of United States v. Seton (2013). In Seton, Air Force OSI agents viewed dormitory video that depicted consensual interactions between the defendant and his accuser of sexual assault at or near the time of the alleged sexual assault. The defendant had urged the OSI agents when he was interviewed to watch the video as it would corroborate what he told them. The agents went and viewed the video and, sure enough, it corroborated what the defendant told them and undermined the accuser’s story. However, the agents didn’t obtain a copy of the video though they were aware it would overwrite in 14 days. By the time OSI went to obtain a copy of the video, it had been overwritten.
A few months after this, the Defense produced an affidavit from a Technical Sergeant (TSgt) who was the dormitory leader and who had shown the video to the law enforcement agents. T he affidavit explained that the video system was functioning at the time of the encounter, and the TSgt later testified from memory that “portions of the video . . . contradicted [the alleged victim’s] previous statements in at least three respects.”
On the basis of this testimony, the military judge concluded that alleged victim’s credibility “was an issue of central importance in the court-martial” and there was no comparable substitute to the video. Though finding that the prosecution did not act in bad faith in failing to preserve the video, the judge dismissed the charges with prejudice, finding that the defendant would be denied a fair trial without the video.
A few reminders when litigating these types of issues:
- The investigator’s knowledge at the time of the destruction the evidence is relevant to the analysis of whether the destruction was a violation of due process. When the police know evidence is exculpatory, destruction of the evidence is a due process violation even if the police did not act in bad faith when destroying the evidence.
- The prosecution (including law enforcement) has a duty to preserve the apparently exculpatory evidence, even the evidence is in the possession of a third party, and it is irrelevant whether the prosecution affirmatively caused or passively allowed the destruction of the evidence.