Saturday, April 4, 2015

Crying Over Spoilt Evidence

Spoliation. Now there is a word lawyers love.

The legal profession feels compelled to use words like spoliation. A google search reveals use of the word peaked in the middle of the 19th century. That would be 1850, give or take a couple decades. For the Love of Pete, I do not know why the legal profession uses words that fell out of common usage around the time Charles Dickens penned Bleak House. I daresay it is a reason Mark Twain, the master of plain words, despised the legal profession.

 Spoliation in a legal context means the  intentional, reckless or negligent destruction of evidence. It occurs in both civil and criminal cases. The problem is what to do about it if a trial court has evidence it has happened.

In Texas criminal courts, the answer is straightforward: Unless the destruction is done in "bad faith", the party hurt by the destruction, inevitably a criminal defendant, is out of luck. This is essentially the result of the Supreme Court of the United States (SCOTUS) in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988).

Youngblood involved a defendant named Larry Youngblood, arrested in 1983 for the sexual assault of a 10 year old boy. The child described the assailant as having a messed up eye, which Youngblood had, and later identified Youngblood as the assailant. Serological evidence collected was not properly preserved and degraded before it could be tested. Youngblood was later convicted.

On initial direct appeal, Arizona state courts reversed based on federal due process grounds concerning the state's failure to preserve this evidence. SCOTUS reversed the Arizona state court. SCOTUS decided no federal due process violation occurs unless "bad faith" is proven in the failure to preserve the evidence by government officials.

In 2000, using more sophisticated technology, the degraded serological evidence was able to be tested. The Innocence Project tells the rest of this tragedy succinctly:
 In early 2001, officials got a hit, matching the profile of Walter Cruise, who is blind in one eye and is currently serving time in Texas on unrelated charges. In August 2002, Cruise was convicted of the crime and sentenced to 24 years in prison. 
Sadly, Youngblood died in 2007, without receiving any compensation for his wrongful conviction. 
Bad faith is virtually impossible to prove. It requires not only intentional destruction, but an additional requirement of some knowledge the destruction is useful to the nonspoliating party. Several states responded to the Youngblood decision by allowing trial court jury instructions for spoliation based on independent state due process  constitution provisions.

Not Texas.

 Most often, in my experience,  spoliation shows itself in a destroyed law enforcement video or audiotape evidence. For example a DWI stop in which video of the field sobriety testing, blood or breath collection is not properly downloaded or is overwritten.

Spoliation is also a place in the legal road where civil systems and criminal systems converge. In July 2014, the Supreme Court of Texas (SCOTX), the court of last resort in Texas civil appeals, decided Brookshire Bros v. Aldridge, 438 S.W.3d 9 (2014). Aldridge involved the destruction of videotape of a slip in fall in a grocery store. SCOTX aligned civil spoliation with the SCOTUS decision in Youngblood, holding absent bad faith, no jury instruction may be given informing a civil jury it may hold the destruction against the party destroying the evidence.

One exception, according to SCOTX, to not instructing a jury regarding negligently destroyed evidence is if "a party's negligent breach of its duty of reasonably preserve evidence irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense." Aldridge at 25-26. An instruction in such a case would be appropriate because the destruction "could completely subvert the fact finder's ability to ascertain the truth." Id.

This exception is not currently part of the Texas criminal court system calculus. With apologies to the band Nirvana, it smells like due process to me.

With advances in technology there is less and less good reasons for loss of evidence. With bad faith as a yardstick, though, there is no real hammer to punish for negligent failure to so do.

Youngblood has always been a particularly sore spot. Part of the refusal of appellate courts to allow instructions to juries is the burden placed on law enforcement in preserving evidence and the confusion of issues when defense lawyers start try to make a trial about the evidence destroyed instead of the elements the state has or has not proven. This reasoning, to me, degrades the ability of juries to weigh evidence while following legal instructions.

Weighed against the harm to defendants like Larry Youngblood, it seems a fair trade.

When confronted with this eventuality at trial, criminal defense lawyers (and civil plaintiff lawyers) should always tender a proposed spoliation instruction. For criminal defense lawyers, cite the Texas due process clauses and open court provision of Art. I, Sections 10, 13 and 19. The Texas Court of Criminal Appeals may not bite, but you cannot change the law on appeal if you do not preserve it in the trial court.

While you are at it, cite the the federal due process clauses. SCOTUS may yet come around to the right side of history. Larry Youngblood deserves no less.

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