Destruction of Evidence and the Right to Present a Complete Defense

posted by on Thursday, October 09, 2008

When the State of other governmental agency either intentionally or passively permits evidence to be destroyed, a criminal defendants constitutional right to due process and a fair trial is implicated. There are really two fundamental constitutional rights that are implicated when the government destroys evidence in a criminal prosecution. The first, is what is referred to as the defendant's constitutionally protected right access evidence that will be used against him/her during the trial. This is far and away the most popular and well-known argument advanced by a defendant when evidence is destroyed. Many times it is referred to as a Brady violation referring to the United States Supreme Court's ruling in Brady v. Maryland where the Court ruled that a defendant in a criminal case has the constitutional right to request and receive evidence that is either material to guilt or to punishment. The difficulty with this allegation is that a defendant is often times required to prove that the evidence would have been exculpatory or was destroyed in bad faith which has become increasingly more difficult to do.

The second, less commonly argued constitutional right implicated when evidence is destroyed is the defendant's overarching right to a fair trial. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment . . . . the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. . . . " Crane v. Kentucky, 476 U.S. 683, 690 (1986). This right encompasses many "subrights," for lack of a better word, that are all integral in the defendant exercising his/her constitutional right to present a defense. As it stands today, a criminal defendant's right to the presentation of a complete defense involves: (1) A right to present evidence on her own behalf. Washington v. Texas, 388 U.S. 14, 17-19 (1967); (2) A right to physically inspect and know the physical characteristics of real evidence the state expects to use against her. State v. Eads, 166 N.W.2d at 773; (3) A right to subject the State's physical evidence to scientific testing. Id.; (4) A right to the services of an expert witness that may assist in evaluating and rebutting the expert analysis of physical evidence and testimony of the State's witnesses. Van Scoyoc, 511 N.W.2d at 630; see also Eads, 166 N.W.2d at 773 ("Failure to afford defendant a reasonable pre-trial opportunity to meet such evidence by a cross-examination based on adequate factual background, by producing his own experts, or by some other means, results indeed in what has been called trial from ambush."); (5) A right to examine witnesses against her by cross examination, to test the witness' recollection, to probe into the details of his testimony, or to "sift" his conscience, all of which are designed to protect the "integrity of the fact finding process." Chambers v. Mississippi, 410 U.S. at 295; (6) A right to have compulsory process for obtaining witnesses and evidence in her favor. Washington v. Texas, 388 U.S. 14 (1967); and (7) A right to effective representation of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

When crucial evidence is destroyed by the State of government in a criminal prosecution, each and every one of these rights comprising the overarching right to defend oneself is implicated. Take for example, the State's destruction of blood in a vehicular homicide case where the defendant's blood alcohol concentration is at issue. If the blood is destroyed before the defense has an opportunity to inspect and subject the test to independent analysis' each and every one of the six "subrights" associated with presenting a complete defense are implicated. Specifically, the defendant is prevented from gathering information regarding the type of blood test kit and sample collection vials used to withdraw the blood, the expiration dates documented on the test kit and sample collection vials, and that evidence which would have been obtained through independent scientific testing of the blood. The evidence is gone forever and cannot be produced let alone evaluated or re-valuated in any way, shape or form. It cannot be determined whether defendant's name was the name on the sample vial from which the test result was obtained; it cannot be determined whether or not the blood tested was the defendant's; it cannot be determined whether bacteria had contaminated the blood sample creating an artificially inflated test result; it cannot be determined whether the sample vials had exceeded their expiration date; it cannot be determined whether the alcohol concentration was indeed what the State claims it was. The destruction of the evidence also precludes the defendant from exercising the right to subject the State's physical evidence to scientific testing. Ordinarily a criminal defendant would have had an opportunity to study the evidence and employ its own experts to test it and to rebut the findings of the State's expert witnesses. See State v. Fitz, 265 N.W.2d 896, 906 (Iowa 1978). Likewise, defendant's right to the services of an expert witness that may assist in evaluating and rebutting the expert analysis of physical evidence and testimony of the State's witness' is inhibited. While the defendant can of course call an expert witness at trial, that witnesses testimony is of little, if any value, if he is unable to conduct an independent evaluation of the State's raw evidence and data that form the very basis of the State's witnesses that he is rebutting. The Iowa Supreme Court has recognized that an independent analysis of the State's evidence by an expert may well result in a conclusion diametrically opposed to that reached by the State's experts. State v. Hancock, 164 N.W.2d 330, 333 (Iowa 1969). As noted by the Illinois Supreme Court, "[a] primary strategy available to the defense is to raise reasonable doubt concerning the accuracy of the tests. Without an independent test, a defendant will not be able to contest whether the results of the State's test were accurate." People v. Newberry, 638 N.E.2d 1196, 1200-1201 (Ill. App. 2nd Dist. 1994).
A defendant's right to cross-examine witnesses against him/her also suffers irreparable harm as a result of the State's destruction of evidence. "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. at 316. "[T]he cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness." Id. The primary manner in which defense counsel accomplishes an effective cross-examination of an adversarial expert witness is not necessarily by attacking the conclusion head-on but rather inquiring into the facts and underlying observations, assumptions, interpretations and conclusions formed as a result of the experts review of the raw data and physical evidence. That obviously cannot be accomplished when the defendant cannot make his/her own observations, assumptions, interpretations and conclusions from an independent review and analysis of the relevant evidence. Finally, all of the aforementioned obstacles to a defendant's exercise of constitutional rights inherent in a fair trial also have an adverse impact on the defendant's constitutional right to effective assistance of counsel. "[A] lawyer is of little help if he has none of the trial tools with which to work. He cannot adequately defend if he is denied access to facts." Eads, 166 N.W.2d at 771.

Demanding dismissal of the charges or at the very least suppression of the State's use of the evidence that was destroyed under the "complete defense" theory is must more straight forward and in turn effective, then attempting to wade through the Brady violation quagmire. While a defense attorney must of course raise any and all issues that arise out of a destruction of evidence issue, it is much easier to explain and demonstrate why a defendant is irreparably prejudiced as a result of the evidence destruction under this theory as opposed to the Brady theory. It doesn't take a rocket scientist to realize that it would be fundamentally unfair for the prosecution to be able to take advantage of the destroyed evidence when the defendant would have no way to counter or defend against it. This is the precise argument that was successfully made by the attorneys at GRLLaw in the Polk County District Court case of State v. Andrea LaForge. (http://www.grllaw.com/CM/Custom/Legal-News.asp) In Ms. LaForge's case, she requested that her blood samples be preserved eight days after it was withdrawn. She did this by and through her attorney who sent the request to the law enforcement agencies via certified mail. A copy was sent to the Polk County Attorney's Office. Some 5 1/2 months after the request to preserve the evidence was made, the State of Iowa destroyed the blood samples and the blood collection kits that they were submitted in. Six days after the blood was destroyed but 5 1/2 months after the request to preserve evidence was made, the State then filed the charge of Vehicular Homicide against Ms. LaForge. After a day long hearing, Judge Nickerson granted defendant's Motion to Dismiss based upon the irreparable harm done to Ms. LaForge's right to defend herself at trial. The case was quickly appealed by the State and the Iowa Supreme Court will have the final say on this matter in the years to come. While there are no specific cases in existence in the State of Iowa in which this precise argument was made, the attorneys at GRL Law are hopefully optimistic that based on these specific facts, this argument will stand on appeal.