Criminal Justice Section
Criminal Justice Magazine
Volume 18 Number 4
Paul C. Giannelli
Paul C. Giannelli is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law at Case Western University Law School in Cleveland, Ohio. He is coauthor of Scientific Evidence (LEXIS 3d ed., 1999), and a contributing editor to Criminal Justice magazine and a member of its editorial board.
In the 1970s, courts began to extend the Brady doctrine to the preservation of evidence. In addition to due process, the right of preservation may be supported by the compulsory process and right of confrontation guarantees. The right of preservation was extensively litigated in scientific evidence cases. Defendants successfully argued that this right had been violated by the prosecution’s failure to preserve drugs, bullets, blood, urine, and trace metal detection results, as well as physical evidence of arson, rape, and homicide. ( See 1 Paul Giannelli & Edward Imwinkelried, Scientific Evidence § 3-13 (3d ed. 1999).) Nevertheless, the scope of the right remained uncertain.
In Arizona v. Youngblood , 488 U.S. 51 (1988), the Supreme Court addressed the issue in a case involving the failure to preserve semen in a sexual assault case. The evidence was critical. Although bad faith is not a requirement in the Brady suppression cases, the Supreme Court nevertheless ruled it determinative in a failure to preserve situation. The Court wrote: “The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent.”
Rejection by state courts
Some courts have found “bad faith” destruction, while many other courts have not. This is not surprising since the standard is an extremely difficult one to satisfy. Indeed, the Youngblood approach was so out-of-line with notions of basic fairness that an overwhelming majority of state courts have rejected it as a matter of state constitutional law. As one court observed: “Apparently only Arizona and California . . . have concluded that their state charters offer the same limited degree of protection as the federal Constitution.” ( State v. Morales , 657 A.2d 585, 594 n.20 (Conn. 1995).) The court went on to reject Youngblood as a matter of state constitutional law:Like our sister states, we conclude that the good or bad faith of the police in failing to preserve potentially useful evidence [semen stains that could have been tested for DNA] cannot be dispositive of whether a criminal defendant has been deprived of due process of law. Accordingly, we, too, reject the litmus test of bad faith on the part of the police, which the United States Supreme Court adopted under the federal Constitution in Youngblood.
Other examples include:
• Thorne v. Department of Public Safety , 774 P.2d 1326, 1331 n.9 (Alaska 1989) (“We have construed the Alaska Constitution’s Due Process Clause to not require a showing of bad faith.”)
• State v. Matafeo , 787 P.2d 671, 673 (Haw. 1990) (bad faith test too restrictive because it precludes courts “in cases where no bad faith is shown, from inquiring into the favorableness of the evidence or the prejudice suffered by the defendant as a result of its loss.”)
• Commonwealth v. Henderson , 582 N.E.2d 496, 497 (Mass. 1991) (“The rule under the due process provisions of the Massachusetts Constitution is stricter than that stated in the Youngblood opinion.”)
• State v. Osakalumi , 461 S.E.2d 504, 512 (W. Va. 1995) (“As a matter of state constitutional law, we find that fundamental fairness requires this Court to evaluate the State’s failure to preserve potentially exculpatory evidence in the context of the entire record.”)
• State v. Delisle , 648 A.2d 632, 643 (Vt. 1994) ( Youngblood decision “too narrow because it limits due process violations to only those cases in which a defendant can demonstrate bad faith, even though the negligent loss of evidence may critically prejudice a defendant.”)
Courts rejecting Youngblood have adopted several other approaches. The Alabama Supreme Court, for instance, has recognized an exception to the bad faith test where the evidence is so critical to the defense as to make a criminal trial without it “fundamentally unfair.” ( Ex parte Gingo , 605 So. 2d 1237, 1241 (Ala. 1992).) The court applied this exception in a toxic waste dumping prosecution where the sole evidence—the samples tested—was not preserved.
Similarly, the Delaware Supreme Court rejected Youngblood and set forth a three-pronged analysis: (1) the degree of negligence or bad faith involved, (2) the importance of the missing evidence, considering the probative value and reliability of secondary or substitute evidence that remains available, and (3) the sufficiency of the other evidence used at trial to sustain the conviction. ( Hammond v. State , 569 A.2d 81 (Del. 1989).) According to that court, “We remain convinced that fundamental fairness, as an element of due process, requires the State’s failure to preserve evidence that could be favorable to the defendant ‘[to] be evaluated in the context of the entire record.’ . . . When evidence has not been preserved, the conduct of the State’s agents is a relevant consideration, but it is not determinative.” ( Id. at 87 (citation omitted).)
The Youngblood test provides no incentive for police departments to adopt standard operating procedures that ensure the proper collection and preservation of evidence—procedures that in all likelihood would benefit the prosecution more in the long run. After having spent nine years in prison, Larry Youngblood was exonerated through DNA testing. Dr. Edward Blake, a DNA scientist, told a reporter:We now have before us a flawed legal precedent that stands on the shoulders of an innocent man. . . . For those organizations that are poorly run or mismanaged or don’t give a damn, . . . the Youngblood case was a license to let down their guard and be lazy. The effect that had was generally to lower the standards of evidence collection.
(Barbara Whiteaker, DNA Frees Inmate Years After Justices Rejected Plea , N.Y. Times, Aug. 11, 2000, at A12.)