In a recent post, we discussed the general parameters of the prosecution’s duty to preserve materially exculpatory evidence under a pair of U.S. Supreme Court decisions: Trombetta v. California (1984) and Arizona v. Youngblood (1988).
Trombetta established the rule that 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.
Youngblood clarified this rule by holding that 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.
In the wake of these two decisions, the Supreme Court in 2004 in Illinois v. Fisher held that the government’s to preserve material exculpatory evidence violates due right regardless of whether the prosecution acted in good or bad faith. But the court also endorsed the Youngblood requirement of a showing of “bad faith” in only “potentially useful” evidence cases.
The Fifth Circuit has carved out the position that a trial court’s determination of bad faith will be reviewed only for clear error. In other words, the trial court enjoys broad discretion in deciding these matters. The court’s analysis must necessarily begin with the undisputed duty the prosecution to disclose exculpatory evidence material to either guilt or punishment. Such an analysis must be guided by Trombetta’s basic premise that materiality requires that there be “an exculpatory value apparent before the evidence [is] destroyed” and that the evidence is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”
The year after Trombetta, the high court added additional guidance in spoliation cases with United States v. Bagley which held that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
The Fifth Circuit then set the following benchmark for a spoliation review: Absent a showing of bad faith, the failure to preserve potentially useful evidence does not constitute a denial of due process. Impermissibly withheld evidence must be either 1) material and exculpatory (Trombetta) or 2) only potentially useful, in combination with a showing of bad faith on the part of the prosecution (Youngblood).
In 2010, the Texas Court of Criminal Appeals( Tex. Crim. App.) in Ex parte Napper (a 73-page decision) addressed the spoliation issue in one of those well-documented Houston Crime Lab cases in which critical forensic evidence was often either destroyed or mishandled. The Napper case rejected the claim that crime lab technicians had “intentionally, recklessly, and in bad faith destroyed available [DNA] evidence.” The Napper court relied on Youngblood and Fisher to reach its conclusion.
At the outset the Tex. Crim. App. had to address the term “potentially useful evidence”—a term for which the Supreme Court did not provide a stand-alone definition. The Tex. Crim. App. said that the high court’s cases on the spoliation issue “appear to contrast evidence that is at best ‘potentially useful’ with ‘material, exculpatory’ evidence under Brady. When the evidence is at best ‘potentially useful,’ then the defendant must at least show ‘bad faith.’ That does not really answer the question of when the potential exculpatory value of evidence is so attenuated that even a showing of bad faith will not afford a basis for relief.
“Professors Dix and Dawson suggest that the ‘possibility’ of exculpation is not enough–that the defendant ‘must apparently show at least a substantial or considerable likelihood the evidence, if preserved, would have tended to show his innocence.’ A few isolated cases from other jurisdictions have held that evidence is not even potentially useful when the potential exculpatory value of the evidence is ‘mere speculation,’ when the allegedly exculpatory fact was legally irrelevant to the crime charged, when the allegedly exculpatory fact would not really provide an exculpatory inference, when the exculpatory relevance of the evidence was not shown, when the chance that the evidence would exonerate the defendant was ‘virtually nil,’ or when other evidence conclusively established that testing would not yield an exculpatory result.”
The Tex.Crim.App found the same difficulty trying to determine actually what constitutes ‘bad faith.” The court’s review of federal circuit courts and state courts decisions revealed that “they generally require a showing along two lines. Some courts have expressly adopted the Trombetta formulation as the definitive test of bad faith. Other courts have focused on one or both of the Trombetta situations, characterizing bad faith as involving improper motivation or malice, or defining bad faith as an intent to deprive the defendant of access to (exculpatory or potentially exculpatory) evidence. Various jurisdictions have also indicated that bad faith is not established by a mere showing that the government agent was grossly negligent, engaged in intentional conduct, did not follow proper procedures, executed poor judgment, or perform sloppy work. Bad faith was held to be absent when government agents did not suspect that the evidence they destroyed was or might have been exculpatory, when destruction of the evidence was due to lack of training, or ignorance of a recently passed law, when the government agent believed his tactics were lawful, or when the evidence was destroyed before the government agent was notified that it might have exculpatory value, before the defendant was a suspect, or before the defendant expressed a desire to have the evidence preserved. Knowing the evidence is obviously relevant to, or even determinative of, guilt or innocence has been held to be insufficient to show bad faith. The government’s ability to preserve the evidence has also been held not to be dispositive.”
The Tex. Crim. App.’s decision in Napper illustrates just how difficult it is to decide the expansive issues of potential usefulness and bad faith. With respect to the potential usefulness in certain kinds of DNA evidence, the court punted:
“Given the paucity of authority and the brevity of the pronouncements regarding whether evidence is even ‘potentially useful,’ we are not certain whether an inquiry into potential usefulness would include looking at other evidence at trial tending to show that the defendant was guilty and, therefore, that DNA testing by a defense expert would not likely yield exculpatory results. The background portion of this opinion outlines the substantial, persuasive evidence of applicant’s guilt aside from the DNA test results, and we will discuss this evidence in connection with the ineffective assistance of counsel claim later in this opinion. This inculpatory evidence would further support a conclusion that the likelihood of exculpatory results from defense DNA testing was slim.
“Nevertheless, we refrain from deciding whether the consumed DNA evidence in this case meets a threshold showing of potential usefulness. That the likelihood of exculpatory results was slim is a factor that may be taken into account when assessing the existence or absence of bad faith. Where exculpatory results were unlikely, an inference can be drawn that the DNA analyst was probably not acting with the intent to deprive the defendant of exculpatory evidence when he destroyed the sample. A threshold showing of potential usefulness may be a worthy concept to apply in a future case; we simply decide here to move on to the question of bad faith.”
But bad faith is almost as difficult to wrap a definition around as potential usefulness. Courts have found bad faith in situations in which government agents: 1) hid or concealed the evidence until it was destroyed; 2) destroyed evidence after being expressly notified by the defense of its potential exculpatory value; 3) destroyed evidence after dismissal of a case only to later re-institute the case; or 4) refused to show up in court for questioning into their good or bad faith.
The Tex.Crim.App. took note of each of these fact situations. The appeals court also paid careful attention to a five-factor test formulated by the Tenth Circuit Court of Appeals to determine bad faith: 1) did the government receive explicit notice of the evidence’s potentially exculpatory nature; 2) was the claim backed up with objective, independent evidence rather than being conclusory; 3) was the evidence in the government’s control at the time of the notice; 4) was the evidence central to the case; and 5) was there an innocent explanation for the evidence’s destruction.
Guided by wide-ranging factors considered in these other court cases, the Tex.Crim.App. issued the following broad definition of bad faith in Napper:
“ … ‘Bad faith’ 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. As the cases we have discussed show, bad faith entails 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. Bad faith cannot be established by showing simply that the analyst destroyed the evidence without thought, or did so because that was the common practice, or did so because the analyst believed unreasonably that he was following the proper procedure.
“No evidence in this case suggests that Childs-Henry or Chu acted in bad faith. Chu specifically stated in his affidavit that his consumption of the evidence was not the result of a desire to prevent additional testing. The habeas court was not required to believe that affidavit, but to find bad faith, a finder of fact must do more than simply disbelieve proffered evidence of good faith: There must be some evidence from which an inference of bad faith can be drawn. There is no such evidence here. Neither analyst has been shown to have any animus against applicant–applicant was not even a suspect at the time testing was conducted. Nor is there any evidence that the analysts were aware of any impropriety in their own conduct, such as a history of falsifying test results. The Bromwich Report explained that the failures in the HPD Crime Lab were the result of a lack of training and of the isolation of the DNA section of the Crime Lab from the forensic community, not the actions of ‘rogue analysts.’”
Thus, at the end of the day, Texas state courts and district courts in the Fifth Circuit must find a Trombetta due process violation when the Government fails to maintain evidence whose exculpatory value is both material and apparent, regardless of why the evidence is destroyed. But these will be rare cases, and will arise in only the most egregious instances of governmental misconduct.
Most spoliation cases will be decided under the Youngblood/Fisher standard: potential usefulness and bad faith. Since there is no one-size-fits-all definition of either term in either state or Federal courts in this jurisdiction, spoliation cases will be decided on a case-by-case basis. Egregiousness will be the beacon. But be forewarned, at least from our experience, the courts will give the benefit of the doubt to the prosecution so long as there is a plausible, reasonable explanation proffered for the failure to maintain the evidence.