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F 2.014 n1 When Prosecution Loses Or Destroys Evidence: Bad Faith Destruction Of Known Exculpatory Evidence.
Criminal defendants are constitutionally assured “a meaningful opportunity to present a complete defense.” (California v. Trombetta (84) 467 US 479, 485 [81 LEd2d 413; 104 SCt 2528].) The guarantee arises from either the Confrontation Clause or the Due Process Clause. (See U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F2d 583, 588; see also generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].) The guarantee applies to criminal defendants in state court. (See Trombetta, 467 US at 485.) It may be violated when a defendant is prevented from presenting evidence important to his defense. (See e.g., id. at 488-89 [failure to preserve breath samples that might have provided grounds for impeachment]; Lopez-Alvarez, 970 F2d at 588 [limitation on cross-examination of prosecution witness about hearsay statements that could have cast doubt on his credibility]; see also Gilmore v. Taylor (93) 508 US 333 [124 LEd2d 306; 113 SCt 2112] and cases cited therein.)
In order to establish a clear due process (14th Amendment) violation, the defendant must show (1) that the exculpatory value of the lost evidence was apparent to the police before its loss (California v. Trombetta (84) 467 US 479, 488-89 [81 LEd2d 413]; People v. Johnson (89) 47 C3d 1194, 1233-34 [255 CR 569]); and (2) that the police acted in bad faith (Arizona v. Youngblood (88) 488 US 51 [102 LEd2d 281]; People v. Medina (90) 51 C3d 870, 893-94 [274 CR 849].) (See also, Kuwatch, California Drunk Driving Law (6th Ed.), Fast Eddie Publishing, § 6.)
If these two prerequisites are satisfied, then the court is obligated to impose sanctions which may vary from dismissal of the action to special jury instructions depending on the circumstances. (People v. Zamora (80) 28 C3d 88, 99-104 [167 CR 573].) If dismissal or exclusion of the evidence is not obtained, the jury may be instructed to draw any conflicting inferences regarding the lost evidence in favor of the defendant. (A similar instruction was given by trial court in Youngblood; see also Zamora 28 C3d at 102-03; see also FORECITE F 2.014 n3.)
Also, in addition to an instruction regarding the inferences to be made from destroyed evidence, the jury may be instructed to view the prosecution’s evidence to which the lost evidence related with distrust. (Zamora 28 C3d at 103.)
(See also FORECITE F 2.03e, FORECITE F 2.04d, FORECITE F 2.06b–e and FORECITE F 2.11a–d for additional instructions relating to the prosecution’s suppression of evidence, etc.)
F 2.014 n2 When Prosecution Loses Or Destroys Evidence: Trial Court’s Discretion To Instruct When Due Process Showing Is Insufficient.
If the defendant fails to satisfy both the Trombetta and Youngblood prerequisites, there is no due process violation and the trial court has no sua sponte duty to instruct regarding the lost evidence. (People v. Medina (90) 51 C3d 870, 894 [274 CR 849].) However, once the defendant has proved a loss of material evidence, the trial court retains “discretion to impose appropriate sanctions, including fashioning a suitable cautionary instruction. [Citations].” (Ibid.)
Accordingly, it is fully within the court’s discretion to give such an instruction, if requested, even though the requirements of Trombetta and Youngblood have not been met — provided, of course, that the lost evidence was material.
(See also FORECITE F 2.03e, FORECITE F 2.04d, FORECITE F 2.06b–e and FORECITE F 2.11a–d for additional instructions relating to the prosecution’s suppression of evidence, etc.)
(See also FORECITE F 2.92j and F 2.014 n3.)
F 2.014 n3 Propriety Of Instructions When Prosecution Loses Or Destroys Evidence: Jury Instruction As Sanction For Prosecutorial Loss Or Destruction Of Evidence.
In People v. Wimberly (92) 5 CA4th 773, 793 [7 CR2d 152], it was held that the court properly instructed jury to draw an adverse inference against the prosecution following police destruction of evidence. The instruction inWimberly informed the jury that the improper destruction of evidence could support an inference adverse to the prosecution which may be sufficient to leave the jury with a reasonable doubt as to the defendant’s guilt. (Id. at 791-92; see also People v. Sassounian (86) 182 CA3d 361, 395 [226 CR 880] [instruction that jury could “presume that [the destroyed evidence] was unfavorable to the People’s case”], but see People v. Von Villas (92) 10 CA4th 201, 245-46 [13 CR2d 62] [no error in rejection of “loss of evidence” instructions].)
In People v. Sixto (93) 17 CA4th 374, 401 [21 CR2d 264], material evidence regarding defendant’s diminished capacity defense was lost due, in part, to defense counsel’s ineffectiveness in the investigatory stage. (Sixto’s first conviction was reversed on appeal due to the IAC and he sought sanctions in the form of specific jury instructions to be given at the re-trial.) The Court of Appeal held that Sixto had no right to the argumentative instructions which he requested. Fundamental fairness and federal due process principles did require the court to offer a “non-argumentative, neutral instruction, which would have prevented the jury from inferring that Sixto was somehow responsible for the defense’s failure to substantiate the intoxication claims, or that in fact tests were performed and the results were unfavorable to the defense.” (Sixto 17 CA4th at 402.)
(See also FORECITE F 2.03e, FORECITE F 2.04d, FORECITE F 2.06b–e and FORECITE F 2.11a–d for additional instructions relating to the prosecution’s suppression of evidence, etc.)
(See also FORECITE F 2.92j and F 2.014 n2.)
F 2.014a
Destruction Or Failure To Preserve Evidence
ALTERNATIVE FORMS
Alternative Form 1:
Instruction Concerning Bad Faith Destruction Of Material Evidence — Criminal Prosecution
If you find that any law enforcement officer intentionally and willfully attempted to suppress material evidence in any manner (such as intimidating witnesses, not disclosing witnesses or destroying evidence), you must presume that the suppressed evidence would have favored the defendant and that the officer’s testimony concerning that evidence may be biased.
Points and Authorities
Adapted from Deerings EC 413, “Suggested Form.”
Alternative Form 2:
Instruction Concerning Failure To Preserve Physical Evidence — Criminal Prosecution
While in the custody of investigative agencies, the following items of evidence were either lost or destroyed: __________ [list and describe the items of evidence].
You must take the failure to preserve this evidence as indicating that among the inferences which may reasonably have been drawn from this evidence, those inferences most favorable to the defendant are the more probable.
Points and Authorities
Deerings EC 403, “Suggested Form.”
