December 13, 2012
Hurricane Sandy continues to leave her mark on the legal system. Last week it was disclosed that thousands of pieces of New York police evidence were damaged by floodwaters. What will this mean for prosecutors and defendants?
I was curious as to whether damage or destruction of evidence had ever been treated as triggering the prosecutor’s duty to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, so I tried the following search in New York State & Federal Cases:
prosecut! exculpatory brady /s duty obligat! responsib! /5 disclos! /p evidence /5 lost damaged contaminated destroyed destruction
This yielded some helpful results. In U.S. v. Bielli, 697 F.Supp.2d 403, the court distinguishes between the government’s duty to disclose exculpatory evidence and situations where evidence is lost or destroyed. Loss or destruction of evidence may amount to a violation of due process, but only where the defendant shows that (1) the government acted in bad faith in losing the evidence; (2) the evidence had exculpatory value that was apparent before it was lost; and (3) the defendant is unable to obtain comparable evidence by other reasonably available means.
Failure to preserve evidence may result in sanctions against the prosecution. People v. Roy, 195 A.D.2d 761, lays out the standard: “when discoverable evidence in possession of the prosecution is lost, destroyed or otherwise unavailable to a defendant, that unless the People sustain a heavy burden of establishing that diligent, good-faith efforts were made to prevent such loss, sanctions should be imposed.” However, sanctions may be less extreme than dismissal of the case. The court goes on to say that “[the] specific sanction to be imposed lies wholly within the discretion of the trial court…, whose focus should primarily be on the overriding need to eliminate prejudice to the defendant.” In Roy, this meant that the trial court’s adverse jury instruction was sufficient.
I used the following plain-language search to pull up some additional results:
evidence destroyed while prosecution pending
Similar to the Roy case, dismissal was not required in People v. Wagstaff, 107 A.D.2d 877, where “vegetative matter” was destroyed prior to indictment in a case for criminal possession of marijuana. Although the court found that the state failed to offer “any serious explanation as to why they should not be held accountable for the loss” of the evidence, the court recognized that “the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence.” In this case, there was an inculpatory statement by a defendant, which if corroborated could form the basis for a conviction.
Roy and Wagstaff were both cases where the prosecution dropped the ball in failing to prevent the destruction of evidence. In the present situation in New York, police took measures to try to prevent the damage to the stored evidence, by elevating storage containers off the ground and stacking sandbags around the facilities. Far from destroying evidence in bad faith, they were attempting to preserve it. While the damaged evidence may cause some headaches for police, prosecutors, and courts, ultimately it seems unlikely that this will result in any wholesale dismissal of indictments or suppression of evidence.