by Thomas Lundy

A.    Inept Police Work Impacts The Credibility And Weight Of The Prosecution’s Evidence

    As the Supreme Court noted in Kyles v. Whitley (1995) 514 US 419 [131 LEd2d 490, 115 SCt 1555] "when . . . the probative force of evidence depends on the circumstances in which it was obtained and those circumstances raise a possibility of fraud, indications of conscientious police work will enhance probative force and slovenly work will diminish it." (Id. at 446 n.15; see also id. at 442 n13 [discussing the utility of attacking police investigations as "shoddy"]; id. at 445-49; cf. Carriger v. Stewart (9th Cir. 1997) 132 F3d 463, 481; United States v. Hanna (9th Cir. 1995) 55 F3d 1456, 1460.)

    "Details of the investigation process potentially affect [the investigating officer’s] credibility and more importantly, the weight to be given to evidence produced by his investigation." (U.S. v. Sager (9th Cir. 2000) 227 F3d 1138, 1145.) For example, investigative mistakes "hurt the credibility of the Government’s witnesses." (U.S. V. Howell (9th Cir. 2000) 231 F3d 615, 625.) They provide a basis for arguing that the prosecution’s case is "haphazard and inconsistent as well as prone to errors." (Ibid.)

    Hence, the defendant should be permitted to "attack . . . the thoroughness and even good faith of the investigation . . . ." (Kyles, 514 US at 443; see also Bowen v. Maynard (10th Cir. 1986) 799 F2d 593, 613 ["A common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant and we may consider such evidence in assessing a possible Brady violation"].)

    When the prosecution has intentionally destroyed evidence, at a minimum, the jury should be instructed that it may infer that the destroyed evidence would have been favorable to the defendant and adverse to the prosecution . (See e.g., People v. Wimberly (CA 1992) 5 CA4th 773, 793 [7 CR2d 152]; Tinsley v. Jackson (KY 1989) 771 SW2d 331, 332; State v. Maiccia (IA 1984) 355 NW2d 256, 259 [where defendant’s due process rights were violated by destruction of evidence the appropriate remedy was jury instruction permitting favorable inference for defendant from destruction of evidence]; Sanborn v. Commonwealth (KY 1988) 754 SW2d 534, 539 [prosecutor’s intentional erasing of tape recorded statements required reversal with directions to give defendant from destruction of the evidence].)

    Similarly an attempted destruction of evidence implicates the due process clause of the federal constitution. (See, e.g., Arizona v. Youngblood (1988) 488 US 51, 57-8 [102 LEd2d 281; 109 SCt 333].) Such a willful attempt to destroy evidence should authorized an instruction allowing the jury to draw an inference adverse to the prosecution. (See e.g., People v. Wimberly, supra, 5 CA4th 773, 793.)

    Even in the absence of bad faith, instruction may be appropriate under state law, especially where the loss of the evidence is unfair to the defense. (See e.g., State v. Ferguson (TN 1999) 9 SW2d 912, 917.) For example, many jurisdictions have relied on state law to reject or "twist" Youngblood’s absolute requirement of bad faith in favor of a multi-factor balancing test. [For an instruction with supporting points and authorities on this issue, go to Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved.]

    Moreover, even if a jurisdiction has fully adopted Youngblood, the trial court may still have the discretion to give a suitable cautionary instruction when material evidence has been negligently lost or destroyed. "When police negligently fail to preserve potentially exculpatory evidence, an instruction [is properly given which] permits the jury to infer that the evidence would have been exculpatory." (State v. Fulminante (AZ 1999) 975 P2d 75, 93 [citing State v. Willits (AZ 1964) 393 P2d 274 [no bad faith required for instruction that if State destroyed evidence that might have been helpful to defendant, jury may infer that evidence would have been unfavorable to the State]; see also People v. Medina (CA 1990) 51 C3d 870, 894 [274 CR 849] [once defendant has proved a loss of material evidence the trial court retains "discretion to impose appropriate sanctions, including fashioning a suitable cautionary instruction. [Citations.]"].)

    In the case of investigative deficiency the rationale is analogous to the loss or destruction of evidence. Even if specific lost evidence cannot be identified, sloppy police work is still relevant to the credibility of the prosecution’s case and to the reliability of the process.

    Hence, investigative deficiencies, whether negligent or intentional, should be subject to explanatory jury instruction.

    2.    Instruction On Investigative Deficiencies As A Factor Relevant To Witness Credibility

    Mistakes during investigation may constitute "textbook example" of impeachment evidence which impacts witness credibility. (Howell, 231 F3d at 625.) Therefore, just as the jury is instructed on other specific witness credibility factors (see e.g., CALJIC 2.20), so too should it be instructed on investigative mistakes and inadequacies when appropriate. [For general federal constitutional support for this proposition go to Constitutional Claims: Impairing Jury's Assessment Of Witness Credibility As Violation Of Right To Trial By Jury.]

    Where investigative inadequacy is a defense theory, there should be a right to specific instruction or this theory upon request. (See e.g., Mathews v. U.S. (1988) 485 US 58 [99 LEd2d 54; 109 SCt 883].) [For fuller briefing on the right to instruction on a defense theory go to Litigant’s Right To Instruction On Theory Of Case.]

    4.    Constitutional Demands For Verdict Reliability As A Basis For Instruction On Investigative Deficiency

    Inept or incomplete police work contributes to an unreliable determination as to guilt. (Cf., Howell [noting that full of discovery under FRCRP 16 contributes "to an accurate determination of the issue of guilt or innocence."].)

    Hence when appropriate the jury should be permitted to consider the quality of the investigation to further the federal constitutional interests of reliability. (See generally White v. Illinois (1992) 502 US 346, 363 [116 LEd2d 848; 112 SCt 736] ["reliability ... is a due process concern].)

    [For additional briefing on the constitutional underpinnings of the requirement of verdict reliability go to Federal Constitutional Rights Implicated By Unreliable Trial Or Conviction.]

Sample Instruction # 1:

    It is a defense theory that the prosecution’s investigation evidence of this case was negligent, purposefully distorted and/or not done in good faith. For example, there has been testimony about_______.

    You are to assess the credibility of the evidence in light of this evidence together with all of the other evidence.

    Investigation which is thorough and conducted in good faith may be more credible while an investigation which is incomplete, negligent or in bad faith may be found to have lesser value or no value at all.

    In deciding the credibility of the witnesses and the weight, if says to give the prosecution evidence, consider whether the investigation was negligent and/or conducted in bad faith.

    It is a defense theory that the prosecution’s investigation evidence of this case was negligent, purposefully distorted and/or not done in good faith. For example, there has been testimony about_______.

    You are to assess the credibility of the evidence in light of this evidence together with all of the other evidence.

    Investigation which is thorough and conducted in good faith may be more credible while an investigation which is incomplete, negligent or in bad faith may be found to have lesser value or no value at all.

    In deciding the credibility of the witnesses and the weight, if says to give the prosecution evidence, consider whether the investigation was negligent and/or conducted in bad faith.

    You have heard testimony in this case concerning the government’s failure to [investigate] [conduct certain tests]. The failure of the government to so [investigate] [conduct these tests] is relevant to the issues presented by this case. In evaulating the credibility and weight of the evidence, consider the [lack of investigation] [failure to conduct certain tests].

    From the fact that the government did fail to [investigate] [conduct certain tests] [follow certain police procedures], you may draw an adverse inference against the government, which may leave you with a reasonable doubt as to the defendant’s guilt. When potential evidence is not pursued by the party in the best position to make such an investigation, one may infer that the potential results of that investigation would be unfavorable to the party’s cause.

[Source: Adapted from Hrones & Czar, Criminal Practice Handbook (Lexis, 1998) § 5-17(b)(1) Inst. No. 19.]

    Inadequate or incomplete investigation by the prosecution may support an inference adverse to the prosecution which may be sufficient to leave with a reasonable doubt as to the defendant’s guilt.

[Source: Adapted from instruction given in People v. Wimberly (CA 1992) 5 CA4th 773, 793 [7 CR2d 152].]

    If you find that the [police] [______] inadequately investigated one matter, you may infer that the prosecution also inadequately investigated other matters. Based on this inference alone you may disbelieve the prosecution witnesses and evidence. This may be sufficient by itself for you to have a reasonable doubt as to the defendant’s guilt.

(See U.S. v. Schyllon (DC Cir. 1993) 10 F3d 1, 3 [intimidation of even a single potential witness, permits an inference that the other witnesses were also intimated].)

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NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 4 - CHAPTER 36

RATIONALE: Even if the loss of evidence was not the result of bad faith or willful conduct by the prosecution, instruction on the lost evidence may be appropriate where the evidence was potentially exculpatory and the loss was prejudicial to the defendant.

POINTS AND AUTHORITIES: A. Federal Due Process. Normally, bad faith is required to establish a violation of federal due process principles for the loss or destruction of evidence. (See Arizona v. Youngblood (1988) 488 US 51, 54 [109 SCt 333; 102 LEd2d 281].

B.  State Law. Even in the absence of bad faith, instruction may be appropriate under State law, especially where the loss of the evidence is unfair to the defense. (See e.g., State v. Ferguson (TN 1999) 2 SW3d 912, 917.) For example, the following jurisdictions have relied on state law to reject or twist Youngblood's absolute requirement of bad faith in favor of a multi-factor balancing test:

    Alabama: Grimsley v. State 678 SO2d 1197, 1204-06;

    Alaska: Thorne v. Department of Public Safety (AL 1989) 774 P2d 1326; see also State v. Norman (AK 1994) 875 P2d 775, 777-78 [trial court has discretion to give "destruction of evidence" instruction];

    Connecticut: State v. Morales (CT 1995) 657 A2d 585, 589;

    Delaware: Lolly v. State (DE 1992) 611 A2d 956, 962 fn. 6 [defendant entitled to jury instruction based on State’s failure to preserve evidence properly]; see also Hammond v. State (DE 1990) 569 A2d 81, 90;

    Georgia: Spaulding v. State (GA 1990) 394 SE2d 111;

    Hawaii: State v. Matafeo (HI 1990) 787 P2d 671, 672;

    Kentucky: Tinsley v. Jackson (KY 1989) 771 SW2d 331, 332-333;

    Massachusetts: Commonwealth v. Henderson (MA 1991) 582 NE2d 496, 497 [relying on state statutory scheme];

    Minnesota: State v. Schmid (MN 1992) 487 NW2d 539, 541;

    North Dakota: Bismarck v. Holden (ND 1994) 522 NW2d 471, 475; State v. Barnett (ND 1996) 543 NW2d 774, 777;

    New Hampshire: State v. Smagula (NH 1990) 578 A2d 1215, 1217;

    New Mexico: State v. Riggs (NM 1992) 838 P2d 975, 978; see also Scoggins v. State (NM 1990) 802 P2d 631, 632;

    Tennessee: State v. Ferguson (TN 1999) 2 SW3d 912, 917;

    Vermont: State v. Delisle (VT 1994) 648 A2d 632, 642;

    West Virginia: State v. Osakalumi (WV 1995) 461 SE2d 504, 512;

Other jurisdictions have strictly adhered to Youngblood:

    Arizona: State v. Youngblood (AZ 1993) 844 P2d 1152, 1156-58 [en banc];

    California: People v. Cooper (CA 1991) 809 P2d 865, 886;

    Kentucky: Collins v. Commonwealth (KY 1997) 951 SW2d 569, 572;

    Iowa: State v. Dunlaney (IA 1992) 493 NW2d 787, 791-93;

    Maine: State v. Anderson (ME 1999) 724 A2d 1231, 1233-34;

    New Jersey: State v. Marshall (NJ 1991) 586 A2d 85, 140;

    North Carolina: State v. Drdak (NC 1992) 411 SE2d 604, 608 [rejecting state statutory argument];

    Washington: State v. Copeland (WA 1996) 922 P2d 1304, 1324 [en banc].

    However, even if a jurisdiction has fully adopted Youngblood, the trial court may still have the discretion to give a suitable cautionary instruction when material evidence has been negligently lost or destroyed.

    "When police negligently fail to preserve potentially exculpatory evidence, an instruction [is properly given which] permits the jury to infer that the evidence would have been exculpatory." (975 P2d 75, 93 [citing State v. Willits (AZ 1964) 393 P2d 274 [no bad faith required for instruction that if State destroyed evidence that might have been helpful to defendant, jury may infer that evidence would have been unfavorable to the State]; see also People v. Medina (CA 1990) 51 C3d 870, 894 [274 CR 849] [once defendant has proved a loss of material evidence the trial court retains "discretion to impose appropriate sanctions, including fashioning a suitable cautionary instruction. [Citations.]"].)

    For example, in People v. Wimberly (CA 1992) 5 CA4th 773, 793 [7 CR2d 152], it was held that the court properly instructed jury to draw an adverse inference against the prosecution following police destruction of evidence. The instruction in Wimberly informed the jury that the improper destruction of evidence could support an inference adverse to the prosecution which may be sufficient to raise a reasonable doubt as to the defendant's guilt. (Id. at 791-92; see also People v. Sassounian (CA 1986) 182 CA3d 361, 395 [226 CR 880] [instruction that jury could "presume that [the destroyed evidence] was unfavorable to the People's case"].)

C.  Due Process: Arbitrary Denial Of State Created Right. See NCJIC 300.3 [Due Process: Arbitrary State Action]; see also NCJIC [Constitutional Macro 6.3]. Available to subscribers.  To become a subscriber, click here.

D.  Defense Theory. See NCJIC 250.1 [Grounds For Instruction On Defense Theory]; see also NCJIC  [Constitutional Macro 4.1].  Available to subscribers.  To become a subscriber, click here.

E.  Reliability. See NCJIC 300.29.1 [Federal Constitutional Rights Implicated By Unreliable Trial Or Conviction]; see also NCJIC [Constitutional Macro 6.7].  Available to subscribers.  To become a subscriber, click here.

NOTE: Relationship To Missing Witness Instruction. "Even the mere failure, without more, to produce evidence that naturally would have elucidated a fact at issue permits an inference that ‘the party fears [to produce the evidence]; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.’" (Vodusek v. Bayliner Marine Corp. (4th Cir. 1995) 71 F3d 148, 156 [quoting 2 Wigmore on Evidence, §285, p. 192 (1979); see also NCJIC 36.2.1 [General Principles And Instructions].)  Available to subscribers.  To become a subscriber, click here.

PRACTICE NOTE: "If a pre-trial request of dismissal is denied and/or counsel is considering making a request for such an instruction later in the trial, counsel should remember to ask during voir dire whether the venirepersons know what the word `exculpatory' means and can apply the terms `comparable evidence' and `reasonably available means.' Such an instruction, similar to a missing witness charge, can be used with accompanying testimony and closing argument to show the jury that the police and the prosecution were aiming for a conviction from the outset, rather than for a just outcome. See S. Gross-Glaser, The Missing Witness Rule as Double-Edged Sword: Dangerous, Antiquated, But Helpful, 13 CrimPracReport 394 (10/20/99)." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) Volume 13, No. 22 (11/3/99) p. 414.)

    While in the custody of investigative agencies, the following items of evidence were either lost or destroyed: __________ [list and describe the items of evidence].

    You may take the failure to preserve this evidence as indicating that among the inferences which may reasonably have been drawn from this evidence, those inferences most favorable to the defendant are the more probable.

[Source: Adapted from Deerings California Evidence Code § 413, "Suggested Form".]

    The Commonwealth has lost or released [several items of] evidence involved in this case, [including] [specifically] _________________ (ID evidence). In your deliberations, you may infer, but you are not required to infer, that this evidence, if available now, would be favorable to the defendant’s case.

[Source: Cooper, KENTUCKY INSTRUCTIONS TO JURIES 2.06A [Missing Evidence; Alternative Form] (Anderson, 4th ed. 1999); see also Tinsley v. Jackson (KY 1989) 771 SW2d 331, 332-33.]

    The improper destruction of evidence may support an inference adverse to the prosecution which may be sufficient to raise a reasonable doubt.

[Source: People v. Wimberly (CA 1992) 5 CA4th 773, 791-91 [7 CR2d 152].)

    You may consider testimony that the government or its agents either failed to preserve or destroy or discarded relevant evidence as affirmative evidence of the weakness of the government’s case. This testimony, alone or in combination with other matters, may leave you with* in your mind a reasonable doubt entitling defendant to an acquittal.

* The word "create in your mind" was replaced with "leave you with" to avoid the implication that the defendant has the burden to create or raise a reasonable doubt. (See NCJIC 270.3.4 [Improper To State that Defendant Must "Raise" Or "Create" Reasonable Doubt].)  Available to subscribers.  To become a subscriber, click here.

[Source: Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) 17(b)(1) Inst. No. 19, ¶ 3; see also Vodusek v. Bayliner Marine Corp., 71 F3d at 156.]

    The State has a duty to gather, preserve, and produce at trial evidence which may possess exculpatory value. Such evidence must be of a nature that the defendant would be unable to obtain comparable evidence through reasonably available means. The State has no duty to gather or indefinitely preserve evidence considered by a qualified person to have no exculpatory value, so that as an as yet unknown defendant may later examine the evidence.

    If, after considering all of the proof, you find that the State failed to gather or preserve evidence, the contents or qualities of which are in issue and the production of which would more probably than not be of benefit to the defendant, you may infer that the absent evidence would be favorable to the defendant.

[Source: State v. Ferguson (TN 1999) 2 SW3d 912, 917.]

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NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 16 - CHAPTER 300

    300.10.2    Constitutional Claims: Impairing Jury's Assessment Of Witness Credibility As Violation Of Right To Trial By Jury

PRACTICE NOTE: Jury instructions which impair the jury's central function of assessing the credibility of witnesses may implicate the defendant's federal constitutional right to trial by jury. (6th/14th Amendments.) (See People v. Cudjo (CA 1993) 6 C4th 585, 637-43, fn 1 [25 CR2d 390], Kennard, J. dissenting [suggesting that the right to trial by jury is implicated when the trial judge usurps the jury's function of assessing the credibility of witnesses].)

    Franklin v. Henry (9th Cir. 1997) 122 F3d 1270, 1273 held that an error in excluding a statement relating to the credibility of a child witness was of constitutional magnitude based on Crane v. Kentucky (1986) 476 US 683, 690-91 [106 SCt 2142; 90 LEd2d 636]. Hence, jury instructions which impact the jury's assessment of a witness' credibility may also be of constitutional magnitude. For example, the trial court may not, consistent with the due process rights of defendant to a fair trial before an impartial judge and jury, express to the jury any personal opinion of credibility of witness and should scrupulously avoid even an appearance of partiality. (People v. Robinson (CO 1993) 874 P2d 453, 459.)

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NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 11- CHAPTER 250

PRACTICE NOTE: "A party is entitled to have proper requested instructions presenting the party’s theory of the case to the jury. [Citations.]" (O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 7.03 [Requests For Instructions] p. 468-69 (West, 5th ed. 2000).) "The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party's theory to the particular case. [Citations.]" (Soule v. General Motors Corp. (CA 1994) 8 C4th 548, 572 [34 CR2d 607]; see also Logacz v. Brea Community Hospital, et al. (CA 1999) 71 CA4th 1149 [84 CR2d 257]; State v. Beigenwald (NJ 1991) 594 A2d 172, 195-197 [applying this rule directly to capital trials].)

    Under this rule "a criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in proof, no matter how tenuous the defense may appear." (United States v. Dove (2nd Cir. 1990) 916 F2d 41, 47; see also, U.S. v. Kenny (9th Cir. 1981) 645 F2d 1323, 1337 ["jury must be instructed as to the defense theory of the case"]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748; Keeble v. U.S. (1973) 412 US 205, 213 [93 SCt 1993; 36 LEd2d 844]; State v. O'Daniel (HI 1980) 616 P2d 1383, 1390; People v. Miller (IL 1994) 630 NE2d 1125, 1130; State v. Selgado (NM 1966) 413 P2d 469, 470; Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-7(a)(2), p. 302 ["The duty to instruct on a defense theory is triggered even if the "evidence forming the foundation for the defense to the charge is wobbly, weak, insufficient, inconsistent, of doubtful credibility, and consists solely of a defendant’s own testimony...."].)

    In sum, "[i]t is reversible error for the court to refuse a request to instruct as to defendant's theory of the case if there is evidence to support it." (U.S. v. Leach (1st Cir. 1970) 427 F2d 1107, 1112.)

    See also NCJIC 300.4.1 [Failure To Instruct Or Directed Verdict On Element Of Charge]. Available to subscribers.  To become a subscriber, click here.

    See also NCJIC 250.1.2 [Constitutional Right To Present A Defense As Ground For Defense Theory Instruction].  Available to subscribers.  To become a subscriber, click here.

    See also NCJIC 250.1.3 [Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction].  Available to subscribers.  To become a subscriber, click here.

    See also NCJIC 300.5.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].  Available to subscribers.  To become a subscriber, click here.

    See also NCJIC 250.1.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction].  Available to subscribers.  To become a subscriber, click here.

See 6th Circuit Pattern Jury Instructions - Criminal 6.01.

See also 8th Circuit Model Jury Instructions - Criminal 9.05.

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VOLUME 16 - CHAPTER 300

PRACTICE NOTE: "Reliability is ... a due process concern." (White v. Illinois (1992) 502 US 346, 363-64 [116 LEd2d 848; 112 SCt 736].) Hence, the Due Process clauses of the federal constitution (5th and 14th Amendments) require that criminal convictions be "reliable and trustworthy." (California v. Green (1970) 399 US 149, 164 [26 LEd2d 489; 90 SCt 1930] [due process might prevent convictions where a reliable evidentiary basis is totally lacking]; see also Donnelly v. DeChristoforo (1974) 416 US 637, 646 [40 LEd2d 431; 94 SCt 1868] and cases collected at fn 22 [due process "cannot tolerate" convictions based on false evidence]; Thompson v. City of Louisville (1960) 362 US 199, 204 [4 LEd2d 654; 80 SCt 624].)

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