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:
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 Brady, Trombetta, 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.”