Government Destruction of Evidence and the Youngblood doctrine

A defendant is heading to trial, a vital piece of evidence was destroyed, the defense is gutted without this crucial evidence. I am presented with these exact facts in a case I’m taking to trial in May. This is exactly the question raised in Arizona v. Youngblood causing the Supreme Court to grapple with devising a remedy to protect due process amid spoliation questions. The Court’s decision in Youngblood is perhaps the most devastating and controversial evidentiary decision in history. Its decision leaves an uphill battle for any defendant facing loss of critical exculpatory evidence. But with some creativity – the Defense can bolster the case for “bad faith” and achieve the remedy it desires.

In Youngblood v. Arizona the Supreme Court held that the intentional destruction of exculpatory evidence by law enforcement only results in dismissal when the Defendant can prove bad faith. You read that right. The police can destroy evidence vital to the acquittal of a defendant and dismissal is only a potential outcome where “bad faith” can be shown. What constitutes “bad faith”? The Court elected to leave this open to the circuits resulting in a very government friendly application.

Youngblood must be critically re-examined but until the Court elects to take up a Youngblood case, we are left to deal with this harsh doctrine and find a remedy amid the “bad faith” test adopted by SCOTUS. And here’s how you do it.

Practice Tip: Always listen to the Supreme Court oral argument of landmark cases you cite. You will learn a lot about the justice’s reasoning and the historical underpinnings of the doctrine. Oral Argument in Youngblood is available here.

Arizona v. Youngblood

First, let's understand Youngblood. Youngblood was convicted of abducting and sexually assaulting a child in 1985 from a carnival. Scary stuff, and not the most sympathetic defendant to be before the Supreme Court. But fifteen years later he was exonerated through DNA testing that was unavailable at the time of his trial. And amazingly the DNA that was later recovered lead to the 2002 conviction of the actual perpetrator – someone with two prior convictions for child sex abuse.

Before diving into the decision we must first understand its historical underpinnings. Youngblood was decided in 1988 by the Rehnquist Court. It was a 6-3 decision written by Rehnquist joined by conservative stalwarts Scalia, O’Connor and Kennedy (whose opinions were notably conservative until 1992). The opinion was also joined by Justice White who was a self-labeled non-doctrinal pragmatist. Youngblood was decided at a time when the Court was shifting towards the 1990’s law and order conservative Rehnquist Court.

The facts are these, on October 29, a 10 year old boy was kidnapped and raped. He was found and taken to the hospital and a “rape kit” was utilized. The police also gathered the boy’s clotting which was placed in property and not refrigerated. About nine days later a criminologist examined the rape kit slides and noticed sperm on the clothing that could not be tested to determine the identity of the perpetrator.

At trial, the Defendant called a criminologist who couldn’t examine the swab or the clothing. But the expert was called to raise reasonable doubt in the case because the clothing could not be examined to determine the identity of the actual perpetrator. The first trial ended in a mistrial. At the retrial the court gave the jury a “missing evidence” instruction, which allowed the jury to draw an adverse inference against the State if it found the State had lost or destroyed evidence. At the second trial, the jury convicted Youngblood. The Arizona Court of Appeals reversed the conviction and did not find “bad faith” on the part of the state but relied on Brady v. Maryland to hold that the Defendant was denied a fair trial.

The case was argued on October 11, 1988. At oral argument the Court, and mostly Justice O’Connor seemed fixated on whether the Defendant asked for independent testing of the clothing or requested “brady material”. The Court seemed fixated on the absence of “bad faith” by the prosecution and was concerned that a doctrine permitting dismissal absent bad faith would unnecessarily usurp the State’s right to prosecute a case and would be an unreasonable regulation on police conduct. And this is a pragmatic approach, in the process of an investigation it's not immediately apparent whether evidence is exculpatory.

At conference discussing the opinion, the focus seemed to be whether negligent conduct would be sufficient for dismissal. The majority ruled that it was not – “bad faith” is required unless the evidence is clearly exculpatory. For Stevens, it was a “close” case. He found it significant that the trial court instructed the jury that it could draw an adverse inference against the State based on the lost evidence. It seems that Stevens found it sufficient that the jury received an adverse inference instruction.

The Court held:

To determine whether dismissal of an indictment is warranted due to spoliation of evidence, there are three separate tests. First, if the evidence will clearly exculpate the defendant, failure to preserve- whether done in good or bad faith – violates due process. Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (citing Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). Second, if the destroyed evidence will only potentially exculpate the defendant, the accused must show that the government destroyed the evidence in bad faith. Id. at 58. Third, if the government has destroyed evidence that has no exculpatory value whatsoever, there is no due process violation.

DECISIONS FINDING “BAD FAITH” SINCE Arizona v. Youngblood

Since Arizona v. Youngblood, there are very few cases in which a court has held that dismissal was appropriate due to the “bad faith” spoliation of evidence.

In United States v. Cooper, 983 F.3d 928, 929 (9th Cir. 1992), the DEA destroyed a series of vats that were used to manufacture dextran sulfate which the trial Court and the 9th Circuit determined was done in “bad faith” because it knew it would be evidence in the case. In United States v. Bohl, 25 F.3d 904 (10th Cir. 1994) the FAA destroyed radio towers that were built out of non-compliant material after the FAA tested the material which the Court determined was done in bad faith and prejudice the defendant.

In Stuart v. State, 907 F.2d 783 (Idaho 1995), the trial Court determined that a jail phone call recording between the defendant and his sister which was destroyed was “potentially exculpatory” and was destroyed in bad faith. In United States v. Elliott, 83 F. Supp 2d 637 (E.D. Va. 1999) the DEA destroyed “materials believed to be used to make methamphetamine” after testing the material. The trial Court determined: “Where the law enforcement officer acted in a manner which was either contrary to applicable policies and the common sense assessments of evidence reasonably to be expected of law enforcement officers or was so unmindful of both as to constitute a reckless disregard of both, there is a showing of objective bad faith sufficient to establish the bad faith requirement of the Trombetta/Youngblood test. Id. at 647-48.

In State v. McGrone, 798 F. Supp. 2d 637 (E.D. Va. 1999) the state destroyed the clothing of a defendant who was shot in the leg. Defendant claims that he was fleeing police not lunging at him and the gunpowder residue on his leg would prove this point. In dismissing the case the Court held, “[w]here the State’s actions absolutely prevent a defendant in a criminal case from presenting proof on this issue, we will consider the requirement of bad faith to have been proven”. Id. at 523.

In United States v. Yevakpor, 419 F. Supp 2d 242, 244-45 (N.D.N.Y. 2006), the Government provided incomplete evidence during discovery and admitted that they selectively chose portions of the evidence to save and portions to destroy. The “evidence” at issue were three one-minute video segments that showed the defendant engaging in allegedly suspicious acts. The Court determined that the selection of what to preserve and what to destroy constituted bad faith.

FINDING “BAD FAITH” IN THE WAKE OF YOUNGBLOOD

The cases are scant, scattered, and littered with judicial inconsistency on the defining “bad faith”. Courts seem to find it important that the defendant requested preservation of all evidence – despite the obvious obligation to do so under Brady v. Maryland. Violations of police policy seem to be suggestive of bad faith or knowledge of the exculpatory nature of the evidence may show “bad faith”.

Building a case for “bad faith” seems to rest on three factors (1) was it immediately apparent that the evidence was potentially exculpatory, (2) was the destruction in accordance with a reasonable policy by the police department, (3) was the prosecution aware of the defense use for the information, (4) did the destruction of the evidence bolster the Government’s theory.

Defendants should shoot for the moon when “bad faith” is suspected and file a motion to dismiss. But even if the Defendant falls short in a motion to dismiss under Youngblood an adverse inference instruction, like the one in Youngblood must be sought.