The Houston Chronicle carried a recent report that the Harris County District Attorney’s Office had dismissed 90 misdemeanor and felony drug cases because a local Constable’s Office “improperly destroyed evidence.”


The evidence destruction was brought to light when attorney Paul Morgan discovered that evidence in a case he was defending had been destroyed.


The reason offered for the destruction of the evidence?


“Cleaning Up” the Evidence Room


Constable Mark Herman said one of his deputies was trying to clean up the department’s crowded property room and apparently decided the best way to accomplish that was to destroy evidence stored there.


The deputy was banished from the law enforcement community.


“I did an internal affairs investigation at my office,” Herman told the newspaper. “Basically we found he (committed) some very serious policy violation and I fired him immediately.”


The implications for the District Attorney’s Office begged immediate attention. DA Devon Anderson, reported the Chronicle, ordered a review of all disposed of cases from Herman’s office dating back to 2007. This will involve a review of more than 25,000 items of evidence.


Will DA Give Notices to All Defendants?


While the evidence destruction issue is now public, Harris County Criminal Lawyers Association President Tyler Flood informed the newspaper that he was unaware of prosecutors issuing “so-called Brady notices of possibly exculpatory evidence, either to defendants with pending cases or to those who have already been convicted to inform them of the problems with the evidence.”


But exactly what is the legal standard when it comes to evidence destruction?


The Sixth and Fourteenth Amendments guarantee a criminal defendant the right to due process and a fair trial. Inherent in these constitutional guarantees is the duty of law enforcement and prosecutors to preserve certain kinds of evidence—but the fly in the ointment is just how narrow that duty really is.


So what happens if the police lose or destroy evidence?


Spoliation of Evidence


This past June the First District Court of Appeals, based in Houston, dealt with this question in Weldon v. State. The court noted the longstanding legal principle in Texas that loss or destruction of evidence is known as “spoliation of evidence.” To establish a credible spoliation claim, the defendant bears the initial burden under Texas Court of Criminal Appeals (TCCA) precedent to show that the State lost or destroyed the evidence in bad faith.


While the TCCA recognized that “precisely” what constitutes “bad faith” is not clear, it requires at least a showing that is “more than simply being aware that one’s action or inaction could result in the loss of something that is recognized to be evidence.” At a minimum, the court said bad faith demands a showing of “some sort of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining evidence that might be useful.”


Due Process Violation Requires Bad Faith


Citing the U.S. Supreme Court precedent in Arizona v. Youngblood, the Weldon court said that the “failure to preserve evidence” based on negligence alone (as will most likely be argued in the Constable cases) “does not rise to the level of a due process violation.


Simply put, the spoliation of evidence rule expressed in Youngblood confines the police’s obligation to preserve evidence “to that class of cases where the interests of justice most clearly require, i.e., those cases in which the police themselves by their conduct indicate that the evidence forms a basis for exonerating the defendant.”


Tough Road to Hoe


This rule, therefore, is as narrow as the eye of a needle—the police have no duty to preserve evidence unless its exculpatory value is known as the time of its destruction; in order words, the evidence must be destroyed in bad faith solely to convict someone innocent of the crime charged.


Thus, in addition to bad faith, the defendant claiming a due process violation based on spoliation must also show that the lost or destroyed evidence was so material and favorable to his defense that had it been disclosed, there is a reasonable probability that the outcome of the proceedings (such as a guilty verdict) would have been different.


“Potentially useful evidence” that creates a mere “possibility of exculpation” is not enough. The lost or destroyed evidence must make “actual innocence” apparent.


Given this legal backdrop, it is rather amazing that the District Attorney’s Office preempted many legal challenges by dismissing the 90 cases and is currently searching to find others to dismiss. It reveals at least, we believe, that during this election cycle, the DA is committed to doing the right thing.  We sure hope this trend continues…