The Duty to Disclose Includes the Duty to Preserve

by Jamison Koehler on February 12, 2014

Police officers fail to preserve a critical piece of evidence, in this case a video recording taken of the incident in question.  The defendant moves for sanctions.  In opposing this motion, the government argues that the defendant’s arguments about what the recording contained is speculative.  The court agrees.

Am I missing something here?  Without the opportunity to have actually watched the video recording, how can anything the defendant might say about its content be anything but speculative?

The D.C. Circuit recognized a variation of this problem in United States v. Bryant, 439 F.2d 642 (1971).  The court basically concluded that all of the carefully crafted constitutional protections accorded to a defendant at the back end of a prosecution could be completely undone by police officers at the front end if officers were allowed to pick and choose the evidence they sought to preserve:   “Besides the carefully safeguarded fairness of the courtroom is a dark no-man’s-land of unreviewed bureaucratic and discretionary decision making.”  The duty to disclose includes the duty to preserve.

Bryant was decided over 40 years ago, and is still good law in the District.  And yet there we are.

To make matters worse, you have the government claiming that a video recording in the hands of police officers before the smart phone was returned to its owner was neither actual nor constructive possession.   This is a tad incongruous.  Can you imagine what the government’s position would be if the item in question were a firearm in the hands of a suspect?

4 Comments on “The Duty to Disclose Includes the Duty to Preserve

  1. You have to look at Youngblood v. Arizona where SCOTUS sent Larry Youngblood back to prison because he couldn’t prove that the semen the state hadn’t bothered to test when it still could would have demonstrated he was innocent. And then you have to look at Larry Youngblood himself – who turned out to be innocent, though he spent another 12 years in prison before DNA testing on that semen did, in fact, show he wasn’t the guy.

  2. Yes, Arizona v. Youngblood is the problem. That’s what the government cites in every one of its briefs, arguing that the defense is not able to show that the government’s actions were done in bad faith. But in D.C., the court has the discretion to impose sanctions on the basis of simple negligence alone provided that the defendant can demonstrate serious prejudice. The need to preserve discoverable evidence is also dictated by the Metropolitan Police Department’s own directives — directives that were promulgated after Bryant.

  3. I get that. But my point is that every time the cite Youngblood, we need to point out that it sent an innocent man back to prison for 12 years.

  4. Fair enough. We should be focusing not on the police conduct — whether or not it was negligent, grossly negligent or in bad faith — but on the effect the loss/destruction had on the fact-finder’s ability to ascertain the truth. Right now the position the courts seem to take is, hey, they did their best. As Larry Youngblood found out, close enough is not good enough given the stakes.

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