Get Your Motion to Preserve Evidence Filed Early

In Ohio, if the police destroy evidence that may be exculpatory (tending to prove the defendant’s innocence), this may be the basis for a dismissal of the case. In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, the United States Supreme Court addressed the issue of whether a criminal defendant is denied due process of law by a state’s failure to preserve evidence. The court stated the following:

“The Due Process Clause of the Fourteenth Amendment, as interpreted in [Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.”

But what is “material exculpatory evidence” and how do you prove it if the evidence was destroyed before your attorney got to see it?

The U.S. Supreme Court held that the Due Process Clause does consider issues of good faith and bad faith when dealing with the failure of the State to preserve 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. The U.S. Supreme Court held that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.

Thus the U.S. Supreme Court held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve “potentially useful evidence” does not constitute a denial of due process of law.” Id. at 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281.

So the Youngblood court established two tests: one that applies when the evidence is “materially exculpatory” and one that applies when the evidence is “potentially useful.” If the state fails to preserve evidence that is materially exculpatory, the defendant’s rights have been violated.

However, evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph five of the syllabus.

Stated in other words, “To be materially exculpatory, ‘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.’” State v. Colby, Portage App. No.2002-P-0061, 2004 Ohio 343, quoting California v. Trombetta (1984), 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413.

Ohio’s Fifth District Court of Appeals has consistently held that the burden of proof is on the defendant to show the exculpatory nature of the destroyed evidence. See State v. Birkhold (Apr. 22, 2002), Licking App. No. 01CA104, 2002 Ohio 2464, State v. Hill (Mar. 8, 1999), Stark App. No. 1998CA0083, 1999 Ohio App. LEXIS 1542, State v. Blackshear (June 19, 1989), Stark App. No. CA-7638, 1989 Ohio App. LEXIS 2410.

If, on the other hand, the state fails to preserve evidence that is potentially useful, the defendant’s rights have been violated only upon a showing of bad faith. The term “bad faith” generally implies something more than bad judgment or negligence. “It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.” State v. Franklin, Montgomery App. No. 19041, 2002 Ohio 2370.

The case on this is State v. Piper, 2008 Ohio App. LEXIS 147 (January 11, 2008) Delaware Co. App. No. 07CAC030016, out of Ohio’s Fifth District Court of Appeals. The facts of the case were that a City of Delaware police officer ran the plates of a pickup truck which he passed late at night. The plates came back to an owner whose license was under suspension. The officer followed the truck until it stopped, and when a man matching the description of the owner whose license was suspended got out of the driver’s seat, the officer approached him and asked for ID. The driver admitted that he was driving under suspension.

The Delaware City Police patrol cars have a computerized digital video system which records things 24 hours per day onto a 156 gigabyte hard drive. This hard drive has enough storage space for 8 days of recordings and then it starts to record over itself. The defendant did not make a Motion to Preserve Evidence of the recording of the stop until three months after the stop. Ohio’s Fifth District Court of Appeals ruled that the Trial Court properly overruled the defendant’s motion in limine to dismiss the charges since the defendant could not show bad faith in the police’s destruction of the video evidence.

So get your Motion to Preserve in sooner rather than later. Once the Court grants it, your argument about bad faith becomes a lot easier to make when you can show that the police destroyed evidence or failed to preserve it even though there was a court order requiring them to do so.

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