In the criminal law context, spoliation is the loss or destruction of evidence that either supports the prosecution’s theory of the case or tends to negate the guilt of the defendant.
The U.S. Supreme Court made it abundantly clear in 1963 in Brady v. Maryland that a criminal defendant has a due process right to access to evidence in the possession of the prosecution that is material to his guilt or punishment. It is also clear that right “would be empty” if they government could pre-empt the exercise of that right by destroying evidence that is either crucial or harmful to their case.
Unfortunately, some unethical prosecutors decided to ignore Brady and destroyed evidence damaging to their theory of the case. The practice became so prevalent that the Court, in a pair of cases, was forced to define the parameters of a defendant’s due process rights when requested evidence, once in the prosecution’s control, is lost, destroyed, or otherwise made unavailable.
The first case, California v. Trombetta, was decided by the Court in 1984. Trombetta essentially held that when the prosecution fails to maintain or preserve irreplaceable exculpatory evidence, whose value is apparent prior to its destruction, due process is violated. Most courts apply this rule regardless of why the evidence is destroyed.
Four years later the Court clarified the Trombetta rule in Arizona v. Youngblood. Under Youngblood, a different rule applies when the destroyed evidence is only potentially useful and whose exculpatory value was not apparent before its destruction. In these kinds of cases, a defendant can establish a due process violation only after a showing of “bad faith” in the decision to destroy the evidence.
The Trombeta,Youngblood cases create a two step inquiry: First, is the evidence clearly, irreplaceably exculpatory or is it merely or potentially useful, apparently exculpatory. If the evidence is irreplaceably exculpatory, its destruction creates a due process violation regardless of why it was destroyed( Trombeta). If the evidence is only potentially useful, apparently exculpatory, then the next question is whether the government acted in bad faith(Youngblood).
The First Circuit Court of Appeals on February 14, 2014 had an opportunity to address the spoliation issue in a strange context: the missing larynx of a murder victim killed by strangulation.
In Magraw v. Roden, the appeals court examined the first degree murder case of David G. Magraw who was convicted in a Massachusetts court for killing his wife, Nancy. The couple was married in June 1974. They began discussing divorce in 1989, which resulted in both parties retaining attorneys who began negotiating terms of a divorce settlement.
The evidence in the case reveals that during a February 1990 meeting between the couple and their attorneys, David Magraw became irate about the prospects of having to divide the marital assets he believed were exclusively his own. Nothing was resolved at that meeting. Another meeting was scheduled for July 23 between the couple and their attorneys to discuss further disposition of the couple’s marital assets. The wife did not show up for the meeting. Attempts to reach her by telephone failed. The attorneys proceeded with the meeting during which Magraw said he had been to the victim’s home that morning and that she was aware of the meeting.
As the meeting drew to a close, around 3 p.m, the victim’s attorney again tried to reach his client. The couple’s son answered the phone. He went to get his mother only to return very excited saying he had to call his father. The attorney handed the phone to Mr. Magraw who spoke with his son a few moments, after which he said, “She’s gone. She’s dead.” The attorneys and Magraw immediately drove to the victim’s home. Magraw went inside the residence while the victim’s attorney waited outside. Magraw exited the house, saying: “We were so happy. She was depressed. She was, she was on pills.”
An emergency medical team arrived at the scene as did the Walpole police. They found the victim lying face down in the living room. Her body was badly bruised. There were no signs of forced entry into the residence. An ensuing autopsy determined the cause of death to be “mechanical asphyxiation due to compression of the neck.” The law enforcement investigation at some point targeted Magraw who was subsequently arrested, indicted, and convicted of first degree murder. That conviction was set aside by the Massachusetts Supreme Court in 1998. He was retried and convicted a second time. It was this second conviction that worked its way to the First Circuit for review.
The record discloses that the Commonwealth “discarded the victim’s larynx” sometime after the autopsy. The larynx was examined on two occasions: during the autopsy and at a “subsequent meeting involving three state medical examiners.” The larynx was not preserved and, therefore, was not available in 1994 when Magraw’s defense team requested to examine it in preparation for the defendant’s first trial.
Magraw argued before the First Circuit that the larynx was “most likely exculpatory” and beneficial to his defense. The appeals court pointed out that Magraw’s defense team had been provided with “a plethora of evidence” obtained and recorded during the medical examinations of the larynx. The medical examiner who performed the autopsy said the determination that strangulation was the cause of death was made after “a layer-by-layer dissection of the victim’s neck, including identification of hemorrhages throughout the entire larynx structure.” This opinion was supported by a second medical examiner who examined photographs of the neck and larynx which, according to the expert, revealed injuries around the victim’s neck and larynx that were indicative of strangulation.
Against this factual backdrop, the First Circuit observed that there was nothing in the record “to suggest that the Commonwealth acted in bad faith …” Thus, the issue before the appeals court was whether the victim’s larynx was “apparently exculpatory” or was “no more than potentially useful.” Absent a showing of bad faith, the court’s conclusion was inevitable:
“We conclude that Youngblood is controlling. There, the Court considered the import of spoiled semen samples in a rape case in which the rapist’s identity had been the primary issue at trial. The defendant argued that these samples, if properly preserved or tested earlier, might well have served to exonerate him. But the Court was chary of imposing upon police an ‘absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.’ Since the semen samples were no more than ‘potentially exculpatory evidence’ and there was no evidence that the authorities had acted in bad faith, the Court ruled that the defendant’s due process rights had not been infringed.
“The parallel between Youngblood and the case at hand is striking. The petitioner does not point to any frankly exculpatory aspect of the larynx but, rather, argues merely that if his expert had the opportunity to inspect the larynx, he might well have found evidence that the victim was not strangled. So viewed, the larynx — like the semen samples in Youngblood — is evidence about which ‘no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’
“Despite the obvious similarity between this case and Youngblood, the petitioner strives to convince us that logic militates toward a conclusion that the larynx was exculpatory. In support, he notes that the Commonwealth’s experts inspected the larynx at some length and speculates that the Commonwealth surely would have introduced the larynx into evidence if that examination tended to establish that the victim was strangled. Building on this speculation, he insists that if the larynx was not inculpatory, then it must have been exculpatory.
“We do not agree. Giving force to this line of reasoning would topple the careful balance constructed by the Supreme Court’s decisions in Trombetta and Youngblood. It will often be the case that evidence no longer available might have been inculpatory, exculpatory, or simply inconclusive. If the state’s failure to preserve such evidence could give rise to an inference that the evidence was exculpatory, there would be little need for the Trombetta-Youngblood dichotomy.
“We add that, if the inference suggested by the petitioner were to prevail, the state would have little choice but to preserve all evidence that might conceivably be useful to the defense. Such a result would run directly contrary to the goal of the Youngblood Court.”
With more than 1300 exonerations of wrongfully convicted defendants in this country since 1989, we believe state officials should err on the side of caution when it comes to deciding what evidence should be retained and what evidence should be destroyed. Evidence that may be only “potentially useful” in 2014 could easily become “irreplaceably exculpatory” in 2020. “Faulty forensics” plays a leading role in wrongful convictions. In the Magraw case, it would have been preferable for the medical examiners to preserve the victim’s larynx for a possible independent expert examination. The damage to the larynx after all was the key piece of physical evidence that supported the strangulation cause of death theory. An independent examination may have found the damage was not sufficient to support the strangulation determination. That would have lent support to Magraw’s defense that his wife’s death was caused by an overdose of pills.
We simply cannot accept that it’s okay to throw the baby out with the wash. Given the rapid changes occurring in science and technology, the government should have a duty to preserve physical evidence upon which convictions and significant prison terms are based.