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36.1 Destroyed Or Lost Evidence

    36.1.1 Instruction As Sanction For Intentional Destruction Or Suppression Of Evidence By Police Or Prosecution
    36.1.2 Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution
    36.1.3 Instruction Regarding Intimidation Of Witnesses By Prosecution Investigator
    36.1.4 Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved
    36.1.5 Failure To Investigate, Conduct Tests Or Follow Police Procedures
    36.1.6 Missing Evidence: Consumption Of Sample By Prosecution Testing
    36.1.7 Instruction For Brady Violation
    36.1.8 Reasonable Doubt May Be Based On Destruction, Loss Or Suppression Of Material Evidence Alone
    36.1.9 Failure To Produce Document Or Other Tangible Evidence At Trial
    36.1.10 Due Process Violation For Deportation Of Material Witness
    36.1.11 Witness Credibility: Consideration Of Defects In Investigation
    36.1.12 Witness Credibility: Consideration Of Defects In Investigation

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RATIONALE: When a party willfully suppresses or destroys material evidence it may be reasonable to infer that the party believed the evidence would be favorable to the other side. Additionally, intentional, bad faith destruction or suppression of evidence favorable to the defense by the prosecution may violate the federal constitution. In either case, special jury instruction on the issue may be appropriate.

    It is recognized that destruction or suppression of material evidence by a criminal defendant may raise an inference of consciousness of guilt. (See FORECITE National™ 34.5 [Suppression Or Fabrication Of Evidence].) However, such inferences should not be limited to criminal defendants; they should also apply to the prosecution. (See e.g., Donchin v. Guerrero (CA 1995) 34 CA4th 1832, 1840 [41 CR2d 192] [jury may draw inferences from "consciousness of guilt" evidence in all types of cases against all parties, not just in criminal cases against defendants].) For example, in Bihun v. AT&T (CA 1993) 13 CA4th 976, 992 [16 CR2d 787], it was observed that "spoliation" of evidence by a party entitles the other party to an instruction that "the adversary's conduct may be considered as tending to corroborate the proponent's case generally, and as tending to discredit the adversary's case generally." [Internal quote marks and emphasis omitted.]

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 5.6].

    Suppression of evidence by the prosecution may implicate 14th Amendment federal due process principles. (See e.g., Arizona v. Youngblood (1988) 488 US 51, 57-58 [109 SCt 333; 102 LEd2d 281]; Kyles v. Whitley (1995) 514 US 419, 436 [115 SCt 1555; 131 LEd2d 490]; Brady v. Maryland (1963) 373 US 83, 87 [83 SCt 1194; 10 LEd2d 215].)

    Criminal defendants are constitutionally assured "a meaningful opportunity to present a complete defense." (California v. Trombetta (1984) 467 US 479, 485 [104 SCt 2528; 81 LEd2d 413].) The guarantee arises from either the Confrontation Clause and the Due Process Clause. (See e.g., U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F2d 583, 588.) The guarantee applies to criminal defendants in state court. (See Trombetta, 467 US at 485.) It may be violated when a defendant is prevented from presenting evidence important to his defense. (See e.g., Id. at 488-89 [failure to preserve breath samples that might have provided grounds for impeachment]; Lopez-Alvarez, 970 F2d at 588 [limitation on cross-examination of prosecution witness about hearsay statements that could have cast doubt on his credibility]; see also Gilmore v. Taylor (1993) 508 US 333, 344 [113 SCt 2112; 124 LEd2d 306] and cases cited therein.)

    In order to establish a 14th Amendment due process violation, the defendant must show (1) that the exculpatory value of the lost evidence was apparent to the police before its loss (California v. Trombetta (1984) 467 US 479, 488-89 [104 SCt 2528; 81 LEd2d 413]; People v. Johnson (CA 1989) 47 C3d 1194, 1233-34 [255 CR 569]); and (2) that the police acted in bad faith (Arizona v. Youngblood (1988) 488 US 51, 57-58 [109 SCt 333; 102 LEd2d 281]; People v. Medina (CA 1990) 51 C3d 870, 893-94 [274 CR 849].)

    If these two prerequisites are satisfied, then the court is obligated to impose sanctions which may vary from dismissal of the action to special jury instructions depending on the circumstances. (See People v. Zamora (CA 1980) 28 C3d 88, 99-104 [167 CR 573].) If dismissal or exclusion of the evidence is not obtained, the jury may be instructed to draw any conflicting inferences regarding the lost evidence in favor of the defendant. (A similar instruction was given by trial court in Youngblood; see also Zamora 28 C3d at 102-03; see also FORECITE National™ 36.1.2 [Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution].) 

    Also, in addition to an instruction regarding the inferences to be made from destroyed evidence, the jury may be instructed to view the prosecution's evidence to which the lost evidence related with distrust. (Zamora, 28 C3d at 103.)

    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 Tinsley v. Jackson (KY 1989) 771 SW2d 331, 332; see also State v. Maiccia (IA 1984) 355 NW2d 256, 259 [where defendant’s due process rights were violated by destruction of evidence, 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 instruction permitting jury to draw favorable inference for defendant from destruction of the evidence]; Cooper, KENTUCKY INSTRUCTIONS TO JURIES 2.06 [Missing Evidence (But No Missing Witness)] (Anderson, 4th ed. 1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 11.1].

    See FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].

PRACTICE NOTE: Reliance On Argument If No Instruction Permitted. If specific instruction is denied consideration should be given as to how the instructional points may be made through argument to the jury. (See FORECITE National™ 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

See Manual On Recurring Problems In Criminal Trials [Brady Material: General Principles].

See also Capital Punishment Handbook [3.2a. Prosecutor’s Duty To Disclose Exculpatory Evidence: General Principles And Authorities].

    If you find that the police [__________] [insert other appropriate agency, e.g., D.A.'s investigator] willfully [suppressed] [destroyed] __________ [insert evidence suppressed or destroyed], you may draw an inference that there was something damaging to the prosecution's case in the evidence that was [suppressed] [destroyed].

    Such an inference may be regarded by you as reflecting the prosecution's recognition of the strength of the defendant's case generally and/or the weakness of its own case.

     If the agents or employees of the prosecution intentionally destroyed evidence you may infer that the destroyed evidence would have been adverse to the prosecution and favorable to the defendant.

[Cf. Cooper, KENTUCKY INSTRUCTIONS TO JURIES 2.06 [Missing Evidence (but no missing witness)] (Anderson, 4th ed. 1999).]

    If a law enforcement officer intentionally and willfully attempted to suppress material evidence, you may presume that the suppressed evidence would have favored the defendant and that the officer's testimony concerning that evidence may be biased.

[Cf. Deering's California Evidence Code § 413, "Suggested Form."]

    If you determine that the State has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, and that the explanation for the loss, destruction, or failure to preserve is inadequate, then you should assume that the evidence was unfavorable to the State. This fact alone may leave you with a reasonable doubt about the defendant’s guilt.

[State v. Tucker (AZ 1988) 759 P2d 579, 588; State v. Mitchell (AZ 1984) 683 P2d 750, 755; see also REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI Standard Criminal inst. 10 [Lost, Destroyed, Or Unpreserved Evidence] (CLE State Bar of Arizona, 1996).]

    If you find that _______________ [description of material physical evidence] existed and the State knowingly and intentionally destroyed ________________ [description of the material evidence], you may, but are not required to, conclude that the information contained in the _______________ would be unfavorable to the State and favorable to the defendant.

[State v. Ueding (IA 1987) 400 NW2d 550, 552; see also State v. Maniccia (IA 1984) 355 NW2d 256, 259; State v. Brown (IA 1983) 337 NW2d 507, 509; IOWA CRIMINAL JURY INSTRUCTIONS 200.46 Destruction Of Evidence - Permissible Inference] (Iowa State Bar Association, 1991).]

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RATIONALE: Attempted suppression of evidence or witness intimidation by the police is conceptually similar to intentional, bad faith destruction of evidence. Therefore, the defendant should have the right to an instruction permitting the jury to draw an adverse inference against the prosecution.

POINTS AND AUTHORITIES: An attempted destruction of evidence implicates the due process clause of the federal constitution. (See e.g., Arizona v. Youngblood (1988) 488 US 51, 57-58 [109 SCt 333; 102 LEd2d 281]; see also FORECITE National™ 36.1.1 [Instruction As Sanction For Intentional Destruction Or Suppression Of Evidence By Police Or Prosecution].) Such a willful attempt to destroy evidence should authorize an instruction allowing the jury to draw an inference adverse to the prosecution. (See e.g., People v. Wimberly (CA 1992) 5 CA4th 773, 793 [7 CR2d 152].)

    Additionally, such an instruction may be required as a defense theory. (See FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].)

    See also FORECITE National™ 36.1.7 [Instruction For Brady Violation].

    See also FORECITE National™ 36.2 [Missing Witness].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 11.2].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [Brady Material: General Principles].

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RATIONALE: Attempted intimidation of a witness by the prosecution is a form of suppression or fabrication of evidence which should justify special instruction.

POINTS AND AUTHORITIES: The Supreme Court has recognized that evidence concerning government-induced witness bias is admissible. In Delaware v. Van Arsdall (1986) 475 US 673 [106 SCt 1431; 89 LEd2d 674], the Court held that it was improper to prohibit all inquiry into the potential bias of a witness who had had separate pending criminal charges dismissed by the Government. (Van Arsdall, 475 US at 684.)

    Accordingly, the defense may call a potential prosecution witness, who did not testify at the trial, in support of a defense theory that the prosecution investigator intimidated the witnesses testifying against the defendant. Intimidation of even a single potential witness, permits an inference that the other witnesses were also intimidated. (See U.S. v. Shyllon (DC Cir. 1993) 10 F3d 1, 3.) This in turn permits an inference that the testimony would have been favorable to the defendant but for the intimidation. (See generally FORECITE National™ 36.1.2 [Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution].)

    See also FORECITE National™ 36.2 [Missing Witness].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 11.1].

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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 (AL 1996) 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) 53 C3d 771 [281 CR 90]; 

    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." (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.]"].)

    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 FORECITE National™ 300.3 [Due Process: Arbitrary State Action]; see also FORECITE National™ [Constitutional Macro 6.3].

    D.  Defense Theory. See FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory]; see also FORECITE National™ [Constitutional Macro 4.1].

    E.  Reliability. See FORECITE National™ 300.29.1 [Federal Constitutional Rights Implicated By Unreliable Trial Or Conviction]; see also FORECITE National™ [Constitutional Macro 6.7].

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; see also FORECITE National™ 36.2.1 [General Principles And Instructions].)

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

    Consider the failure to preserve this evidence as indicating that the evidence would have been favorable to the defendant.

[See Deering's California Evidence Code § 413, "Suggested Form."]

    The [prosecution [lost] [failed to preserve] the following evidence _________________ (specify evidence). In your deliberations, you may infer  that this evidence, if available now, would be favorable to the defendant’s case.  You are not required to make this inference.

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

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

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

    Consider any evidence that the government or its agents either failed to preserve or destroyed or discarded relevant evidence as affirmative evidence of the weakness of the government’s case. This evidence, alone or in combination with other matters, may leave you with a reasonable doubt entitling the defendant to an acquittal.

[See Vodusek v. Bayliner Marine Corp., (4th Cir. 1995) 71 F3d 148,156; see also Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) 17(b)(1) Inst. No. 19, ¶ 3.]

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RATIONALE: The failure of the prosecution to investigate or conduct certain tests is conceptually similar to loss or destruction of evidence and, hence, instruction on the lack or inadequacy of investigation or testing may be appropriate as a defense theory instruction as to promote a reliable verdict.

POINTS AND AUTHORITIES: The same rationale that permits the trial court to instruct on the prosecution's loss or destruction of evidence (see FORECITE National™ 36.1.1 [Instruction As Sanction For Intentional Destruction Or Suppression Of Evidence By Police Or Prosecution]), should apply to the failure to investigate or conduct tests which results in the loss of evidence. (See e.g., Nation-Wide Check Corp. v. Forest Hills Distributors, Inc. (1st Cir. 1982) 692 F2d 214, 217-18; U.S. v. Vole (7th Cir. 1970) 435 F2d 774, 776-78; Commonwealth v. Fitzgerald (MA 1992) 590 NE2d 1151, 1157 [trial court has discretion to instruct jury on inferences that may be drawn from failure of police and prosecution to conduct adequate forensic tests]; Commonwealth v. Flanagan (MA 1985) 481 NE2d 205, 207-09; Commonwealth v. Benoit (MA 1981) 415 NE2d 818, 824; Commonwealth v. Bowden (MA 1980) 399 NE2d 482; 490-91.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 6.7; 11.1].

    In deciding whether the prosecution has proved the defendant guilty beyond a reasonable doubt, consider whether the police conducted adequate testing of the evidence.

[Cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-19 [Failure To Conduct, Or Inadequacies In, Tests And Investigative Procedures] (Lexis, 2nd ed. 2000).]

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RATIONALE: Without a cautionary instruction, the jury may improperly draw an inference against the defense for failure to rebut a prosecution expert without realizing that the defense had no opportunity to do independent testing of the evidence.

POINTS AND AUTHORITIES: When the prosecution is allowed to present expert testimony concerning evidence which was lost or destroyed, fundamental fairness and due process principles (Federal Constitution, 14th Amendment) should allow the defense to inform the jury that they had no opportunity to independently test the material. (See generally FORECITE National™ 36.1.1 [Instruction As Sanction For Intentional Destruction Or Suppression Of Evidence By Police Or Prosecution]; see also State v. Vannoy (AZ 1994) 866 P2d 874, 880 [state’s failure to preserve breath sample in order to allow defendant opportunity to have independent blood alcohol test performed on breath sample required reversal of conviction]; State v. Livesay (TN 1996) 941 SW2d 63, 64 [prosecution violated defendant’s constitutional rights to due process when it refused to allow defendant’s personal physician to come to the jail and procure an additional sample of blood from the defendant for the purpose of performing an independent laboratory examination to determine blood alcohol content]; Lee v. State (AR 1997) 942 SW2d 231, 234 [tests consumed entire sample and defendant raised Brady (Brady v. Maryland (1963) 373 US 83 [83 SCt 1194; 10 LEd2d 215] claim].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 6.7; 11.1].

RESEARCH NOTES:

Annotation, Consumption Or Destruction Of Physical Evidence Due To Testing Or Analysis By Prosecution's Expert As Warranting Suppression Of Evidence Or Dismissal Of Case Against Accused In State Court, 40 ALR4th 594.

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RATIONALE: If a Brady (Brady v. Maryland (1963) 373 US 83 [83 SCt 1194; 10 LEd2d 215]) violation results in the loss of evidence which does not warrant dismissal, a special instruction permitting the jury to draw an inference favorable to the defense may be appropriate.

POINTS AND AUTHORITIES: A violation of Brady v. Maryland (1963) 373 US 83, 87 [83 SCt 1194; 10 LEd2d 215;] and its progeny, is a form of suppression of evidence which should justify instruction under both traditional litigation principles and due process. (See FORECITE National™ 36.1.1 [Instruction As Sanction For Intentional Destruction Or Suppression Of Evidence By Police Or Prosecution].)

    Brady holds that due process is violated where the prosecutor withholds evidence on demand of an accused which, if made available, might tend to exculpate him or reduce the penalty.) (See Sanborn v. Commonwealth (KY 1988) 754 SW2d 534, 539-40.) While dismissal may be ordered in response to a Brady violation (see e.g., U.S. v. Pollock (MA 1976) 417 FSupp. 1332, 1349), a missing evidence instruction may also be an appropriate remedy. (See Tinsley v. Jackson (KY 1989) 771 SW2d 331, 332-33; see also State v. Maniccia (IA 1984) 355 NW2d 256, 259.)

    See also FORECITE National™ 36.1.2 [Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution].

    See also FORECITE National™ 36.1.4 [Instruction When Material Evidence Is Unintentionally Lost, Destroyed Or Not Preserved].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 6.7; 11.1].

NOTE: Under Brady, the government has a duty to disclose material exculpatory evidence to the defendant; whether or not the government acted in good faith is irrelevant. (See U.S. v. Agurs (1976) 427 US 97, 110-11 [96 SCt 2492; 49 LEd2d 342]; compare Arizona v. Youngblood (1988) 488 US 51, 57-58 [109 SCt 333; 102 LEd2d 281] [failure to preserve potentially useful evidence does not violate due process unless criminal defendant can show bad faith].)

See Manual On Recurring Problems In Criminal Trials [Brady Material: General Principles].

    If you find from the evidence that there existed a ________________ and that the state failed to provide this evidence to the defense, you may, but are not required to, infer that the information contained on/in the ______________ would be, if available, adverse to the state and favorable to the defense.

[Adapted from State v. Maniccia 355 NW2d 256, 259.]

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RATIONALE: Because the burden is on the prosecution to prove guilt beyond a reasonable doubt, any exculpatory evidence may be sufficient to raise a reasonable doubt of guilt. (See FORECITE National™ 270.4.10 [Any Single Fact May Be Sufficient For A Reasonable Doubt].) However, when such evidence is destroyed, lost or suppressed and never seen by the jury, it will likely be difficult for the jury to evaluate the significance of the loss. Therefore, an instruction on lost evidence should remind the jury of the relationship between potential exculpatory evidence and the prosecution’s burden to prove guilt beyond a reasonable doubt.

POINTS AND AUTHORITIES: See e.g., State v. Willits (AZ 1964) 393 P2d 274, 272; see also Nation-Wide Check Corp. v. Forest Hills Distributors, Inc. (1st Cir. 1982) 692 F2d 214, 217-18; U.S. v. Vole (7th Cir. 1970) 435 F2d 774, 776-78; State v. Fulminante (AZ 1999) 975 P2d 75, 93; People v. Wimberly (CA 1992) 5 CA4th 73, 79 [trial court properly gave jury remedial instruction that improper destruction of evidence by prosecution could support inference adverse to prosecution which might be sufficient to raise reasonable doubt].

    See also FORECITE National™ 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 4.1; 6.7; 11.1].

* USE NOTE: In each of these instructions the phrase "create a reasonable doubt" or "raise a reasonable doubt" was replaced with "leave you with" to avoid the implication that the defendant has the burden to create or raise a reasonable doubt. (See FORECITE National™ 270.3.4 [Improper To State that Defendant Must "Raise" Or "Create" Reasonable Doubt].)

    If you determine that the prosecution has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, and that the explanation for the loss, destruction, or failure to preserve is inadequate, then you should assume that the evidence was unfavorable to the prosecution. This fact alone may leave you with a reasonable doubt about the defendant's guilt.

[Cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI No. Standard Criminal 10 [Lost, Destroyed, or Unpreserved Evidence] (CLE State Bar of Arizona, 1996).]

    Any evidence that the prosecution or its agents failed to preserve, destroyed or discarded relevant evidence may be considered by you as affirmative evidence of the weakness of the government’s case. This testimony, alone or in combination with other matters, may leave you with a reasonable doubt entitling defendant to an acquittal.

[Cf. Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 5-17(b)(1) Inst. No. 19, ¶ 3.]

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    The same principles which relate to the failure to produce a witness should also logically apply to the failure to produce tangible evidence.  (See FORECITE National™  36.2.1 [Missing Witness: General Principles And Instructions]; FORECITE National™ 36.1.11 [Witness Credibility: Consideration Of Defects In Investigation]; FORECITE National™     36.1.12 [Witness Credibility: Consideration Of Defects In Investigation]; FORECITE National™ 36.1.8 [Reasonable Doubt May Be Based On Destruction, Loss Or Suppression Of Material Evidence Alone].

POINTS AND AUTHORITIES: See PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 3.21B [Failure to Produce Document Or Other Tangible Evidence At Trial] (Pennsylvania Bar Institute, PBI Press, 08/85).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 4.1; 11.1].

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PRACTICE NOTE: U.S. v. Valenzuela-Bernal (1982) 458 US 858 [102 SCt 3440; 73 LEd2d 1193], held that the federal constitutional rights to due process and compulsory process (5th, 6th and 14th Amendments) may be implicated where the prosecution deports a witness "that would have been material and favorable to [the] defense, in ways not merely cumulative to the testimony of available witnesses." (458 US at 861.) However, this rule requires a showing of bad faith. (See U.S. v. Velarde-Gavarrete (9th Cir. 1992) 975 F2d 672, 674; see also Gurulé, Complex Criminal Litigation - Prosecuting Drug Enterprises & Organized Crime (Lexis, 1996) § 13-3(b).)

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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 445; 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"].)

B.    Instruction On Investigative Deficiencies Is Appropriate

      1.    Investigative Inadequacy Is Analogous To Prosecutorial Destruction, Suppression Or Loss Of Evidence

            a.    Bad Faith

    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. Maniccia (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.)

        b.     Negligence

    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, 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. [See FORECITE National™ 36.1.4 [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.]"].)

        c.    Investigative Deficiency Is Analogous

    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., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.20 [Believability Of Witness] (West, 6th Ed. 1996)), so too should it be instructed on investigative mistakes and inadequacies when appropriate. [See FORECITE National™ 300.10.2 [Constitutional Claims: Impairing Jury's Assessment Of Witness Credibility As Violation Of Right To Trial By Jury].]

    3.    Instruction On Investigative Deficiencies As A Defense Theory

    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, 63 [99 LEd2d 54; 108 SCt 883].) [See FORECITE National™ 250.1.1 [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, 363-364 [116 LEd2d 848; 112 SCt 736] ["reliability ... is a due process concern].)

    [See FORECITE National™ 300.29.1 [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.

Sample Instruction # 2:

    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.

Sample Instruction # 3 [Combination of 1 & 2]:

    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.

Sample Instruction # 4:

    Evidence has been presented concerning the prosecution's failure to [investigate] [conduct certain tests].  If the prosecution failed to [investigate] [conduct relevant tests] [follow required police procedures], you may draw an adverse inference against the prosecution, 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.

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

Sample Instruction # 5:

    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.

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

Sample Instruction # 6:

    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. Shyllon (DC Cir. 1993) 10 F3d 1, 3 [testimony that government investigator had intimidated potential witness who did not testify was relevant to prove that other government witnesses were also intimidated].)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 36

    See THE Shellow Instructions: Prosecution Misconduct: Refusal To Follow Exculpatory Leads As Evidence Of Bias.