Trombetta-Youngblood and the Problem of Bad Faith

As we noted last week, a court may dismiss your criminal case if the government destroyed or failed to preserve evidence that was potentially favorable to your defense.

If you make that argument, however, the court will engage in a two-step analysis, the first step of which will ask how favorable or exculpatory the lost evidence was (or could have been).

If the evidence had exculpatory value that was obvious or apparent at the time it was destroyed, and there’s no other way for you to obtain comparable evidence by reasonably available means, then you win because it’s an automatic due-process violation for the government not to preserve it. California v. Trombetta (1984) 467 U.S. 479, 488-90 (holding, however, that the government did not need, as a matter of course, to preserve all breath samples underlying its breath tests in drunken-driving cases).

But if the evidence was only potentially useful to your defense, then you must show bad faith by the government in destroying or failing to preserve it. Arizona v. Youngblood (1988) 488 U.S. 51, 58. See also Illinois v. Fisher (2004) 540 U.S. 544, 548-49. Accord City of Los Angeles v. Superior Court (2002) 29 Cal. 4th 1, 8.

These motions to dismiss for due-process violations are commonly referred to as Trombetta-Youngblood motions.

Often, the problem is in proving bad faith, as the Youngblood case itself illustrates. In 1985, Larry Youngblood was convicted of kidnapping and child molestation. Unquestionably, a ten-year-old boy had been abducted and molested by a middle-aged man. The victim, who described the man as having a disfigured right eye, was taken to a hospital, where semen samples were collected from his body and clothing. Nine days later, the boy picked out Youngblood, who had a bad left eye, from a photographic lineup, and later at trial, he identified him again in court. In the meantime, the government failed to properly test the samples before they had degraded, and it failed to properly store the clothing so it could be tested at all.

Although Youngblood maintained his innocence at trial, the jury convicted him largely on the basis of the victim’s identification. His state conviction was reversed on appeal, but the U.S. Supreme Court reversed that reversal in the opinion that bears his name. In the end, he couldn’t show bad faith, just negligence.

Then in 2000, at the request of his lawyers, the police retested the degraded evidence using new DNA technology. The results cleared him. Furthermore, they matched the profile of another man who was already in prison for two sex assaults against children, and that man ended up pleading to the crime. And he had a bad right eye. Youngblood, for his part, died in 2007, having never obtained redress for the years he spent being called a child molester.

California Courts Dismiss Robbery Case Based on Government’s Bad Faith

If the police or prosecution destroys evidence that is potentially favorable to the defense, or if they fail to preserve that evidence such that it degrades or disappears, they can lose the case on a motion to dismiss. See California v. Trombetta (1984) 467 U.S. 479; Arizona v. Youngblood (1988) 488 U.S. 51.

Two weeks ago, for example, the California Court of Appeal upheld the dismissal of robbery charges in a case out of Orange County.

Here’s the backdrop. Late one Saturday night, two men left a bar in Fullerton just before last call. As they walked through the parking lot, they encountered another group of five men, and one of those men snatched a $3,200 gold chain from the victim’s neck. Three of the five men were soon arrested and charged with robbery, and the victim readily identified the culprit who snatched his chain, but it wasn’t clear how culpable the other two were, if at all. Upon arrest, one of the two had earnestly protested his innocence to a detective, and the exchange was captured by the detective’s personal recording device as follows:

  • Defendant:  “You guys know we didn’t do anything, man.”
  • Detective:    “No, we don’t know. You know why we don’t know? ‘Cause none of us were there.”
  • Defendant:  “Check the cameras, dude! There’s gotta be cameras around here, man.”
  • Detective:    “I’m telling you right now. If I had video cameras of what took place, that’s part of my job. My job is not to arrest people that aren’t guilty of something.”

The defendant then continued protesting that he hadn’t done anything.

At an early hearing in the case, defense counsel requested an order that any surveillance video be preserved. The prosecutor responded that “in regards to the videos, we had already requested those be held … and the People are already in the process of obtaining the videos. I think that’s the appropriate way to go about getting the evidence. At this point in time, there’s no possibility that they are going to be destroyed. We’re within 30 days.”

Oh, but there was a possibility of the videos being destroyed, and before long, they were.

The defendants then moved to dismiss the case, and at the hearing on their motion, the police department’s watch commander acknowledged that the department had two cameras focused on the parking lot where the robbery occurred, and they generally retained their footage for two or two-and-a-half weeks.

Another department witness, who maintained and controlled these cameras, testified that he received no request for footage from any of the arresting or investigating officers in the case, even though they typically knew the footage was available only for a short time. He did receive such a request from defense counsel, but by then the footage had been overwritten—just days beforehand.

On these facts, the trial court granted the defendants’ motion and dismissed the case, and its ruling was mostly affirmed on appeal.

In its opinion, the court of appeal agreed that the evidence was potentially useful to the defense, and it held that the prosecution acted in bad faith by failing to preserve it when they knew it was potentially useful. That wasn’t just negligence, according to the court; that was bad faith on the government’s part, and it required that the charges be dismissed:

“The importance of holding the police and prosecutors to their obligations under BradyTrombetta, and Youngblood cannot be overstated. Police and prosecutors are more than willing to avail themselves of technology when it is to their advantage; there must be a level playing field that gives defendants equal access to the same evidence.”

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