SPOLIATION

What to do when the state loses or destroys evidence

What in tarnation is “spoliation?”

“The destruction of evidence. It constitutes an obstruction of justice. The destruction, or the significant and meaningful alteration of a document or instrument.” Black’s Law Dictionary

What in tarnation is “spoliation” in a criminal case?

• Note: It is not Brady evidence, in which the State knew about the materially exculpatory evidence and failed to disclose the evidence to the defendant.

• Rather, spoliation occurs when the state lost or destroyed exculpatory evidence, violating the defendant’s due process rights, fundamental fairness, and the right to present a complete defense.

• Spoliation implies that the state knew of the evidence, directly or as inferred from state’s discovery, and subsequently the evidence was lost or destroyed.

The main issue: “apparent” vs. “potential”

• Is the missing evidence in question exculpatory?

• Is it “apparently exculpatory” or “potentially exculpatory?”

• What is the difference?

Apparently Exculpatory

• The evidence was apparently exculpatory if the exculpatory value was apparent to the state before the evidence was destroyed.

• Apparent means that it was obvious and clear that evidence was material and exculpatory.

Apparently Exculpatory

• Evidence is deemed apparently exculpatory when its exculpatory nature was apparent to the government actor or actors who failed to preserve the evidence, and the evidence is of such a nature that the defendant cannot obtain comparable evidence by other reasonable means. Munford, 330 Wis.2d 575, ¶ 21, 794 N.W.2d 264 (citing Oinas, 125 Wis.2d at 490, 373 N.W.2d 463).

Examples of Apparently Exculpatory Evidence

• Know it when you see it. There is no specific test for “apparently exculpatory.” State knew of evidence, and exculpatory value was obvious.

• Evidence has a “significant role” in the defense

• [P]olice cannot be held accountable for failing to divine the materiality of every scrap of evidence, Trombetta holds that when police have in their possession a piece of evidence that “might be expected to play a significant role in the suspect's defense,” [Trombetta] at 488, 104 S.Ct. 2528,they have a constitutional duty to preserve that evidence. Elkins v. Summit Cty., 615 F3d 671(US Ct. App. 2010)

• Usually will be physical evidence; an object – Car, blood sample

• But could be any evidence– wallet, carpet with blood on it, shoe print

• Statements

• Video, recordings, documents– Police interrogation recordings, tape recordings, audiotapes of drug transactions

• Anything with exculpating DNA

State’s Duty

• If the evidence is apparently exculpatory, the state has a duty to preserve the evidence

• If apparently exculpatory, then it doesn’t matter why or how got lost or destroyed, due process is violated.

• Seek a remedy for client.

State’s Duty, and 3rd Parties

• If apparently exculpatory, state’s duty to preserve the evidence extends to evidence that is in the possession of a third party. St. v. Huggett, 2010 Wis. App. 69 at para 19-20.

• E.g., cars in impound lots; phone messages or records maintained by a phone company.

• Doesn’t matter if the evidence is passively or affirmatively destroyed.

Potentially exculpatory• See State v. Oinas, 125 Wis.2d 487, 489–90, 373 N.W.2d 463

(Ct.App.1985) (citing California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) , for the proposition that: “[W]hatever duty the constitution imposes on the states to preserve exculpatory evidence must be limited to evidence that might be expected to play a significant role in the suspect's defense. It is not enough to allege that the destroyed evidence had possibilities of being exculpatory.”

• Evidence is deemed potentially exculpatory when “no more can be said” of its value at the time it was not preserved than that it might be useful to establish innocence but is not “material” exculpatory evidence; it is only “potentially useful.” See Illinois v. Fisher, 540 U.S. 544, 548, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (20 04).

“Potentially” exculpatory• What if the evidence is not “apparently” (obviously and clearly)

exculpatory?

• If not obviously exculpatory, then court must do analysis as to whether lost evidence is “potentially” exculpatory.

• Defendant has to show that the state acted in bad faith in causing the destruction of the evidence. Bad faith standard comes from Arizona v.Youngblood, 488 US 51(1988); see also St. v. Greenwold, 189 Wis. 2d 59 (1994)

• Have to show the state did it on purpose. Negligence (and probably recklessness) of State is usually not enough

• But it should be enough…

Youngblood “Bad faith” standard was bad result in original case

• 1985, Larry Youngblood was convicted of child molestation, SA, and kidnapping.

• Victim, 10 year old boy taken to hospital and staff collected semen samples from victim’s rectum and clothes from assault. Victim picked Youngblood out of a photo ID lineup. Youngblood maintained innocence.

• Case went to trial.• Police did not do serological tests on evidence before trial. Evidence was

not stored properly by police and evidence degraded. • Expert witnesses testified that had evidence been stored correctly, test

results might have demonstrated conclusively demonstrated Youngblood’s innocence.

• Appealed sentence, due process. Arizona App. Ct. set aside the conviction, but in 1988, USSC reversed lower court in Arizona v. Youngblood.

• 1993, Arizona Supreme Ct. reinstated conviction, and Youngblood was returned to prison.

• 2000, DNA tested using new technology, and Youngblood was exonerated.

Bad faith or boo boo?

• Potentially exculpatory Boo Boos (Not a due process violation):

– Inadvertent erasing of videotape was not bad faith.– police negligently losing photographs, not bad faith– “Gross negligence”!!! in handling evidence did not constitute

violation of due process. US v. Femia

• Mere negligence or sloppiness is not bad faith. People v. Gentry, 286 Ill. Dec. 817(App. Ct. 1st

Dist. 2004).

• If good old fashioned everyday negligence isn’t bad faith, then what is bad faith?

Bad Faith Analysis

• “The second prong [potentially exculpatory] requiring bad faith can only be shown if:

• 1) the officers were aware of the potentially exculpatory value or the usefulness of the evidence they failed to preserve; and

• 2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence.

St. v. Greenwold, 189 Wis. 2d 59 (1994)

How to show state acted in Bad Faith

• Basically, defendant has to prove that the cops knew the evidence could have been (thus, “potentially”) exculpatory and that the cops purposely destroyed the evidence.

• Admission of officer that did it on purpose. (Yeah, right. Holding my breath….)

• If negligence isn’t bad faith, is recklessness enough to show bad faith?

• Tough, but don’t give up.

How to show state acted in Bad Faith

• First, we know that the evidence existed. Can establish that from discovery.

• File Discovery Demand, and or Discovery Motion to Compel Specific Discovery

• Look at:

• State’s evidence list.• Police reports. Police write strange things in reports…• Witness statements.• Investigation. Defense has a witness that has personal knowledge

that officer destroyed evidence.

• Ideally: Motion to Preserve evidence. (See e.g., DNA statute)

Proving state acted in bad faith

• Motion to Dismiss charge; exclude or suppress evidence

• Motion should allege that state used bad faith in destroying the evidence.

• Burden is on defendant to show state acted in bad faith. Cops knew evidence was exculpatory.

• Subpeona police and cross examine.

Cant show Bad Faith? Argue Due Process

• Even when the defendant cannot show the state acted in bad faith, defendant may argue that due process is violated:

• Where and how was evidence destroyed?• How important was the evidence to the case? Probative value?• How badly will the absence of the evidence prejudice the

defendant?

• E.g.:“Although there was no evidence of bad faith, plant material [marijuana], was the sole basis for arrest and prosecution, so it was of paramount importance and became more so after files documenting its testing were lost, and lab report was unsupported by documentation and unverified by human memory.” Pena v. State, 226 SW3d 364(Tex. App. Waco 2007).

Not bad faith, but violates client’s Due Process

• Some courts will go beyond bad faith analysis, and balance whether missing evidence deprives client of a fundamentally fair trial.

• Squad car’s dashcam video recording of a traffic stop had potential exculpatory value of such a nature that defendant would not be able to obtain comparable evidence by other reasonably available means, and thus State had a duty to preserve the video recording as potentially exculpatory evidence pursuant to St. v. Ferguson, in prosecution for driving under the influence and other offenses. St. v. Merriman, 410 SW3d 779(Tenn. 2013).

Due Process, Fundamental Fairness

• Do not be discouraged if cannot show obvious bad faith by the state.

• Defendant is entitled to Due process, fundamental fairness and to present a complete defense.

• Youngblood’s “bad faith” standard was ultimately about balancing the burden on the cops to preserve evidence and the client’s right to a fair trial. Even if no bad faith by cops, client guaranteed fundamental fairness under the Due Process Clause. Make sure the court knows why the lost evidence is required for a fundamentally fair trial.

Defense could not get the evidence from another source

• Defendant would not reasonably be able to obtain evidence by another means.

• State destroyed evidence and had exclusive control. E.g., Squad video.

• State destroyed all of it; defense cannot subject evidence to independent testing. E.g., drug cases.

Remedies

• Dismissal.

• State’s destruction of the exculpatory evidence deprives the client of due process right to a fundamentally fair trial, and the charge must be dismissed.

Remedies

• Exclusion or Suppression of other evidence, if state lost or destroyed the evidence in bad faith.

• Very difficult, but not only way to get evidence excluded….

Remedies • Instead of bad faith, did state show “good cause” for failure to disclose

evidence. St. v. Martinez, 166 Wis. 2d 250 (Ct. Apps. 1991).

• 971.23(7m) Sanctions for failure to comply (with duty to disclose information that is subject to discovery under 971.23)

• 971.23(7m)(a): The court shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply.

• Make the state tell the court what is the “good cause” for state’s failure to disclose the potentially exculpatory evidence for discovery and inspection.

• Uhhh, we lost it.• Uhhh, we accidentally destroyed it.

• If loss cannot be explained, move to suppress other evidence related to lost evidence.

• E.g., statements. State lost video of witness interview that exculpates defendant, and now witness is not available.

Remedies• If lost potentially exculpatory evidence, but not in bad faith (but rather by

mere negligence or sloppiness), defense may still ask court for a remedy.

• Jury instruction: “State lost evidence”; “----- evidence existed, but was destroyed by the state.”

• Statutory authority for jury instruction:• 971.23(7m) Sanctions for failure to comply (with duty to disclose information

that is subject to discovery)• 971.23(7m)(b) a court may advise the jury of any failure or refusal to disclose material

or information required to be disclosed• Does not require bad faith showing, but does require that state show “good cause for

failure to comply.” 971.23(7m)(a)

• Remedial instruction regarding destruction of evidence appropriate because of prejudice to the defendant, even though no evidence of bad faith by state. US v. Sivilla, 714 F3rd 1168(US Ct. Apps 9th Circ. 2013).

Sample Motion: Spoliation of Evidence

• STATE OF WISCONSIN : CIRCUIT COURT : LA CROSSE COUNTY• STATE OF WISCONSIN,• Plaintiff• -VS.-•• , Case No. • Defendant• TO: DISTRICT ATTORNEY• LA CROSSE COUNTY• PLEASE TAKE NOTICE that the defendant, by his attorneys, , appearing specially, and upon all the files,

records and proceedings heretofore had and taken herein, will appear in that Branch of the Circuit Court, presided over by, or as soon thereafter as counsel may be heard, and will move the court and hereby does move the court for and order dismissing, in the above-captioned case.

• The Defendant brings this motion pursuant to the 5th and 14th Amendments to the United States Constitution; article 1, sections 1, 7, and 9 to the Wisconsin Constitution, Chapter 971 of the Wisconsin Statutes, State v. Greenwold, 189 Wis. 2d. 59, 525 NW2d 294(1994) and St. v. Huggett, 2010 Wis. App. 69, 324 Wis. 2d. 786, 783 NW 2d 675, and State v. Hahn, 132 Wis. 2d 351, 392 NW2d 464(Ct. App. 1986), California v. Trombetta, 467 US 479, 81 L.Ed. 2d 413, S.Ct. 2528(1984), and Arizona v. Youngblood, 488 US 51, 102 L.Ed 2d 281, 109 S.Ct. 333(1988), on the grounds that the state failed to preserve, lost or destroyed, apparently exculpatory evidence that the defendant would be unable to obtain by reasonably available means.

• IN FURTHER SUPPORT, the Defendant asserts:• 1)

• ARGUMENT• To ensure the defendant’s right to due process of law, fundamental fairness, and the right

to present a complete defense, the state must preserve evidence that is apparently exculpatory. State v. Greenwold, 189 Wis. 2d. 59, 525 NW2d 294(1994). A defendant’s due process rights are violated if the evidence was apparently exculpatory and the state failed to preserve the evidence, or if the evidence was potentially exculpatory and the state acted in bad faith by failing to preserve evidence. Id. at 67, 297.

• 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. Id. 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. Id. at 68, 297.(“[I]f the materiality of the evidence rises above being potentially useful to clearly exculpatory, a bad faith analysis need not be evoked; the defendant’s due process rights are violated because of the apparently exculpatory nature of the evidence not preserved.”)

• Furthermore, the state has a duty to preserve the apparently exculpatory evidence, even if the evidence is in the possession of a third party, and it is irrelevant whether the state affirmatively caused or passively allowed the destruction of the evidence. St. v. Huggett, 2010 Wis. App. 69 at para 19-20, 324 Wis. 2d. 786, 796-97, 783 NW 2d 675, 680-81.(In which the state failed to preserve apparently exculpatory evidence and “[t]he state made no attempt to record the messages, much less to listen to and contemporaneously document their content, until two and one half months after the incident.”) In summary, fundamental fairness and the right to due process of law require that at the time the police become aware of the exculpatory value of the evidence, the state must preserve the evidence, whether or not the evidence is in the exclusive control of the state.