Duty to Preserve Evidence

Overview of the duty to preserve evidence in the production of expert witnesses:

1. Due process test. Unless the government acts in bad faith, failure to preserve potentially useful evidence does not constitute a denial of due process
   1. Arizona v. Youngblood , 488 U.S. 51 (1988). The Government did not preserve clothes or perform certain tests on physical evidence taken from a child victim who had been sexually assaulted. The Government did not make use of any of the materials in its case-in-chief. The Court stated “that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.”                                                Id. at 58.                                                                                                                                                                           (1) See also Illinois v. Fisher , 540 U.S. 544 (2004) (bad faith is the issue, even when the government destroys evidence for which the defense has submitted a discovery request). (2) Youngblood clarified California v. Trombetta , 467 U.S. 479, 488-89 (1984), which stated that absent bad faith, any constitutional duty to preserve evidence is limited to evidence that might be expected to play a significant role in the suspect’s defense; that is, the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Some military cases from the period 1984-1988 refer to Trombetta as the controlling source.                                                             (3) Seventeen years after his conviction, DNA testing on some remaining evidence cleared Youngblood. Understanding Criminal Procedure § 7.04.
   2. Military cases.                                                                                                                                                                    (1) United States v. Garries , 22 M.J. 288, 293 (C.M.A. 1986). Blood stained fabric was consumed during testing. The court applied the Trombetta test which applied at the time and found no constitutional violation. However, the court stated, “Under Article 46, the defense is entitled to equal access to all evidence, whether or not it is apparently exculpatory. . . . Thus, the better practice is to inform the accused when testing may consume the only available samples and permit the defense an opportunity to have a representative present.”                                                                                                                                        (2) United States v. Mobley , 31 M.J. 273 (C.M.A. 1990). Crime scene processors took evidence (including swatches) from a car and then released the car to the owners before the defense had an opportunity to examine the car. At trial, the defense made a due process objection. The court found no bad faith, and the evidence collected from the car was still available for testing.                                             (3) United States v. Gill , 37 M.J. 501 (A.F.C.M.R. 1993). The accused is not entitled to relief on due process grounds for the government’s failure to preserve evidence.                                                                   (4) United States v. Terry , 66 M.J. 514 (A.F. Ct. Crim. App. 2008). After the first trial, the government lost or destroyed almost all of the physical evidence in a rape case. The court conducted due process analysis, finding no bad faith. (The court also conducted separate, R.C.M. 703(f)(2) analysis).
2. Contrast with RCM 703(f)(2).
   1. The rules for unavailable evidence in RCM 703(f)(2) are consistent with but broader than the due process jurisprudence related to the preservation of evidence. Many states declined to follow Youngblood and either enacted rules for production or made rulings under state constitutions that provided the same protections that are found under RCM 703(f)(2): no requirement for bad faith, and a “critically important to a fair trial” test. See generally Understanding Criminal Procedure § 7.04.
   2. At trial, counsel and military judges should generally apply the RCM 703(f)(2) analysis. See generally United States v. Kern , 22 M.J. 49 (C.M.A. 1986). If the government did act in bad faith, then shift analysis to the due process jurisprudence.
   3. RCM 703(f)(2) is also a prospective rule – the parties at trial know that the evidence is unavailable. The question on appeal is whether the military judge correctly applied the rule. If the accused did not know at trial that that some evidence had been destroyed, and so could not litigate under RCM 703(f)(2), then the question on appeal would be whether due process was violated and so that analysis would be used. Appellate courts can conduct separate analysis under both tests. See United States v. Terry , 66 M.J. 514 (A.F. Ct. Crim. App. 2008).

3. Service regulations may provide further rights and remedies.
   1. United States v. Manuel , 43 M.J. 282 (C.A.A.F. 1995). Destruction of accused’s positive urine sample one month after testing violated Air Force regulation and DoD directive. Lower court’s suppression of positive results not an abuse of discretion where court concluded that standards for preserving samples conferred a substantial right on the accused.
   2. United States v. Madigan , 63 M.J. 118 (C.A.A.F. 2006). An Air Force Institute of Pathology regulation required that positive urine samples be kept for two years. The lab inadvertently destroyed the accused’s sample before the two years were up. The defense did not request access to the sample during this period. Later, the defense discovered the sample was destroyed. The court found that applicable regulations concerning retention of drug testing samples conferred a right on servicemembers to discover evidence, and suppression is an appropriate remedy for lost or destroyed evidence in those cases. If the defense does not make a request to preserve the evidence before the period ends, they have essentially become the reason that the evidence is unavailable and so cannot seek a remedy under RCM 703(f)(2).
   3. Department of Defense policy requires retention for one year. Dep’t of Defense, Instr. 1010.16, Technical Procedures for the Military Personnel Drug Abuse Testing Program para. E1.9.2 (Dec. 9, 1994)