Failure to Preserve Evidence
In general
• Criminal defendants have the right to examine physical evidence in the hands of the State under the Fourteenth Amendment to the United States Constitution and Article One, Section Twelve of the Indiana Constitution.
Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006), trans. denied(citing Smith v. State, 586 N.E.2d 890, 893 (Ind. Ct. App. 1992))
• However, the State does not have “an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution.”
Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006), trans. denied(quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988), reh’g denied)
• A prosecutor's duty to preserve exculpatory evidence is limited to evidence that might be expected to play a significant role in the defendant's defense.
State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010)(citing Noojin v. State, 730 N.E.2d 672, 675 (Ind. 2000))
Seal v. State, 38 N.E.3d 717, 721 (Ind. Ct. App. 2015), trans. denied(quoting State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010))
• When the defendant claims that the State has failed to preserve evidence, the allegation is generally analyzed as a due process issue.
See Seal v. State, 38 N.E.3d 717, 721 (Ind. Ct. App. 2015), trans. denied(“In essence, [the defendant’s] argument is that the State failed to preserve evidence, which is generally analyzed as a due process issue.”)
Determining whether a defendant's due process rights have been violated by the State's failure to preserve evidence: In general
• To determine whether a defendant's due process rights have been violated by the State's failure to preserve evidence, we must first decide whether the evidence in question was “potentially useful evidence” or “materially exculpatory evidence.”
Land v. State, 802 N.E.2d 45, 49 (Ind. Ct. App. 2004), trans. denied(citing Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied)
See State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010)(citing Land v. State, 802 N.E.2d 45, 49 (Ind. Ct. App. 2004), trans. denied)(“When determining whether a defendant's due process rights have been violated by the State's failure to preserve evidence, we must first decide whether the evidence is potentially useful evidence or material exculpatory evidence.”)
See also Blanchard v. State, 802 N.E.2d 14, 26 (Ind. Ct. App. 2004)(“The appropriate test to apply when deciding whether a defendant's due process rights have been violated by the State's failure to preserve evidence depends on whether the evidence in question was ‘potentially useful evidence’ or ‘material exculpatory evidence’ as these terms were employed in Arizona v. Youngblood.”)
Determining whether a defendant's due process rights have been violated by the State's failure to preserve evidence: Potentially useful evidence
• Evidence is merely potentially useful if “no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.”
State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010)(quoting Blanchard v. State, 802 N.E.2d 14, 26 (Ind. Ct. App. 2004))
Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006), trans. denied(quoting Blanchard v. State, 802 N.E.2d 14, 26 (Ind. Ct. App. 2004))
Land v. State, 802 N.E.2d 45, 49 (Ind. Ct. App. 2004), trans. denied(quoting Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied)(“Potentially useful evidence is defined as ‘evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’”)
• When the State fails to preserve potentially useful evidence, a due process violation occurs only if the defendant shows the State acted in bad faith.
Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006), trans. denied(citing Blanchard v. State, 802 N.E.2d 14, 26 (Ind. Ct. App. 2004))
See State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010)(citing Blanchard v. State, 802 N.E.2d 14, 27 (Ind. Ct. App. 2004))(“The State's failure to preserve potentially useful evidence does not constitute a violation of due process rights unless the defendant shows bad faith on the part of the police.”)
See also Blair v. State, 877 N.E.2d 1225, 1238 (Ind. Ct. App. 2007), trans. denied(quoting Jewell v. State, 672 N.E.2d 417, 425 (Ind. Ct. App. 1996), trans. denied)(“‘The failure to preserve potentially useful evidence may constitute a denial of due process and require reversal where the criminal defendant can show bad faith on the part of the police.’”)
• “Bad faith is defined as being ‘not simply bad judgment or negligence, but rather implies the conscious doing of wrong because of dishonest purpose or moral obliquity.’”
Land v. State, 802 N.E.2d 45, 49 (Ind. Ct. App. 2004), trans. denied(quoting Wade v. State, 718 N.E.2d 1162, 1166 (Ind. Ct. App. 1999), reh’g denied, trans. denied(quoting Samek v. State, 688 N.E.2d 1286, 1289 (Ind. Ct. App. 1997), reh’g denied, trans. denied))
• In order to show that the State acted in bad faith, it is not enough to show “simply bad judgment or negligence.”
Terry v. State, 857 N.E.2d 396, 407 (Ind. Ct. App. 2006), trans. denied(quoting Land v. State, 802 N.E.2d 45, 51 (Ind. Ct. App. 2004), trans. denied)
• Instead, a defendant must show that the State failed to preserve the evidence pursuant to a “conscious doing of wrong because of dishonest purpose or moral obliquity.”
Terry v. State, 857 N.E.2d 396, 407 (Ind. Ct. App. 2006), trans. denied(quoting Land v. State, 802 N.E.2d 45, 51 (Ind. Ct. App. 2004), trans. denied)
Determining whether a defendant's due process rights have been violated by the State's failure to preserve evidence: Materially exculpatory evidence
• “Exculpatory is defined as ‘[c]learing or tending to clear from alleged fault or guilt; excusing.’”
Land v. State, 802 N.E.2d 45, 49-50 (Ind. Ct. App. 2004), trans. denied(quoting Wade v. State, 718 N.E.2d 1162, 1166 (Ind. Ct. App. 1999), reh’g denied, trans. denied)(quoting Samek v. State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997), reh’g denied, trans. denied))(alteration in the original)
• Exculpatory evidence is defined as “[e]vidence tending to establish a criminal defendant's innocence.”
State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010)(quoting Black's Law Dictionary 597 (8th ed. 2004))(alteration in the original)
Seal v. State, 38 N.E.3d 717, 721 (Ind. Ct. App. 2015), trans. denied(quoting State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010))
• [T]o rise to the level of material exculpatory evidence, the “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”
Blanchard v. State, 802 N.E.2d 14, 27 (Ind. Ct. App. 2004)(quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984))
See State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010)(quoting Noojin v. State, 730 N.E.2d 672, 675-76 (Ind. 2000))(alteration in the original)(“Evidence is materially exculpatory if it ‘possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’”)
See also Land v. State, 802 N.E.2d 45, 49 (Ind. Ct. App. 2004), trans. denied(quoting Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied)(“[M]aterially exculpatory evidence is that evidence which ‘possesses an exculpatory value that was apparent before the evidence was destroyed’ and must ‘be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’”)
• When the State fails to preserve materially exculpatory evidence, a due process violation occurs regardless of whether the State acted in bad faith.
Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006), trans. denied(citing Blanchard v. State, 802 N.E.2d 14, 26-27 (Ind. Ct. App. 2004))
See State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010)(citing Blanchard v. State, 802 N.E.2d 14, 27 (Ind. Ct. App. 2004))(“Failure to preserve material exculpatory evidence violates due process regardless of whether the State acted in good or bad faith.”)
See also Land v. State, 802 N.E.2d 45, 50 (Ind. Ct. App. 2004), trans. denied(citing Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied)(“Unlike potentially useful evidence, the State's good or bad faith in failing to preserve materially exculpatory evidence is irrelevant.”)
• “[W]hile a defendant is not required to prove conclusively that the destroyed evidence is exculpatory, there must be some indication that the evidence was exculpatory.”
Terry v. State, 857 N.E.2d 396, 407 (Ind. Ct. App. 2006), trans. denied(quoting Blanchard v. State, 802 N.E.2d 14, 27 (Ind. Ct. App. 2004))
• If the defendant fails to demonstrate the evidence's exculpatory nature, we will not simply “assume that the destroyed evidence contained exculpatory material when the record is devoid of such indication.”
Terry v. State, 857 N.E.2d 396, 407 (Ind. Ct. App. 2006), trans. denied(quoting Blanchard v. State, 802 N.E.2d 14, 27 (Ind. Ct. App. 2004))