ARIZONA, Petitioner
v.
Larry
YOUNGBLOOD, Respondent
488
U.S. 51 (1988)
REHNQUIST, C.J., delivered the opinion of the
Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in
the judgment, post, p. 338.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL,
JJ., joined, post, p. 339.
Chief
Justice REHNQUIST delivered the opinion of the Court.
Respondent Larry Youngblood was convicted by
a Pima County, Arizona, jury of child molestation, sexual assault, and
kidnaping. The Arizona Court of
Appeals reversed his conviction on the ground that the State had failed to
preserve semen samples from the victim's body and clothing. We granted certiorari
to consider the extent to which the Due Process Clause of the Fourteenth
Amendment requires the State to preserve evidentiary material that might be
useful to a criminal defendant.
On October 29, 1983, David L., a 10-year-old
boy, attended a church service with his mother. After he left the service at about 9:30 p.m., the boy went to a
carnival behind the church, where he was abducted by a middle-aged man of
medium height and weight. The
assailant drove the boy to a secluded area near a ravine and molested him. He then took the boy to an unidentified,
sparsely furnished house where he sodomized the boy four times. Afterwards, the assailant tied the boy up
while he went outside to start his car.
Once the assailant started the car, albeit with some difficulty, he
returned to the house and again sodomized the boy. The assailant then sent the boy to the bathroom to wash up before he returned him to
the carnival. He threatened to kill
the boy if he told anyone about the attack.
The entire ordeal lasted about 1 1/2 hours.
After the boy made his way home, his mother
took him to Kino Hospital. At the
hospital, a physician treated the boy for rectal injuries. The physician also used a "sexual assault
kit" to collect evidence of the attack. The Tucson Police Department
provided such kits to all hospitals in Pima County for use in sexual assault
cases. Under standard procedure, the
victim of a sexual assault was taken to a hospital, where a physician used the
kit to collect evidence. The kit
included paper to collect saliva samples, a tube for obtaining a blood sample,
microscopic slides for making smears, a set of Q-Tip-like swabs, and a medical
examination report. Here, the
physician used the swab to collect samples from the boy's rectum and mouth. He
then made a microscopic slide of the samples.
The doctor also obtained samples of the boy's saliva, blood, and
hair. The physician did not examine
the samples at any time. The police
placed the kit in a secure refrigerator at the police station. At the hospital, the police also collected
the boy's underwear and T-shirt. This
clothing was not refrigerated or frozen.
Nine days after the attack, on November 7,
1983, the police asked the boy to pick out his assailant from a photographic
lineup. The boy identified respondent
as the assailant. Respondent was not
located by the police until four weeks later;
he was arrested on December 9, 1983.
On November 8, 1983, Edward Heller, a police
criminologist, examined the sexual assault kit. He testified that he followed standard department procedure,
which was to examine the slides and determine whether sexual contact had
occurred. After he determined that
such contact had occurred, the criminologist did not perform any other tests,
although he placed the assault kit back in the refrigerator. He testified that tests to identify blood
group substances were not routinely conducted during the initial examination of
an assault kit and in only about half of all cases in any event. He did not test the clothing at this time.
Respondent was indicted on charges of child
molestation, sexual assault, and kidnapping.
The State moved to compel respondent to provide blood and saliva samples
for comparison with the material gathered through the use of the sexual assault
kit, but the trial court denied the motion on the ground that the State had not
obtained a sufficiently large semen sample to make a valid comparison. The prosecutor then asked the State's
criminologist to perform an ABO blood group test on the rectal swab sample in
an attempt to ascertain the blood type of the boy's assailant. This test failed to detect any blood group
substances in the sample.
In January 1985, the police criminologist
examined the boy's clothing for the first time. He found one semen stain on the boy's underwear and another on the rear of his T-shirt. The criminologist tried to obtain blood
group substances from both stains using the ABO technique, but was
unsuccessful. He also performed a P-30
protein molecule test on the stains, which indicated that only a small quantity
of semen was present on the clothing;
it was inconclusive as to the assailant's identity. The Tucson Police
Department had just begun using this test, which was then used in slightly more
than half of the crime laboratories in the country.
Respondent's principal defense at trial was
that the boy had erred in identifying him as the perpetrator of the crime. In this connection, both a criminologist
for the State and an expert witness for respondent testified as to what might
have been shown by tests performed on the samples shortly after they were
gathered, or by later tests performed on the samples from the boy's clothing
had the clothing been properly refrigerated.
The court instructed the jury that if they found the State had destroyed
or lost evidence, they might "infer that the true fact is against the
State's interest."
The jury found respondent guilty as charged,
but the Arizona Court of Appeals reversed the judgment of conviction. It stated that " 'when identity is an
issue at trial and the police permit the destruction of evidence that could
eliminate the defendant as the perpetrator, such loss is material to the
defense and is a denial of due process.' The Court of Appeals concluded on the
basis of the expert testimony at trial that timely performance of tests with
properly preserved semen samples could have produced results that might have
completely exonerated respondent. The
Court of Appeals reached this conclusion even though it did "not imply any
bad faith on the part of the State. The
Supreme Court of Arizona denied the State's petition for review, and we granted
certiorari. We now reverse.
Decision of this case requires us to again
consider "what might loosely be called the area of constitutionally
guaranteed access to evidence. In Brady
v. Maryland,
373 U.S. 83 (1963), we held that "the
suppression by the prosecution of evidence favorable to the accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.
In United
States v. Agurs,
427 U.S. 97 (1976), we held that the prosecution
had a duty to disclose some evidence of this description even though no
requests were made for it, but at the same time we rejected the notion that a
"prosecutor has a constitutional duty routinely to deliver his entire file
to defense counsel."
There is no question but that the State
complied with Brady and Agurs here. The State disclosed relevant police reports to respondent, which
contained information about the existence of the swab and the clothing, and the
boy's examination at the hospital. The
State provided respondent's expert with the laboratory reports and notes
prepared by the police criminologist, and respondent's expert had access to the
swab and to the clothing.
If respondent is to prevail on federal
constitutional grounds, then, it must be because of some constitutional duty
over and above that imposed by cases such as Brady and Agurs. Our most recent decision in this area of
the law, California
v. Trombetta,
467 U.S. 479 (1984), arose out of a drunk-driving
prosecution in which the State had introduced test results indicating the
concentration of alcohol in the blood of two motorists. The defendants sought to suppress the test
results on the ground that the State had failed to preserve the breath samples
used in the test. We rejected this
argument for several reasons: first,
"the officers here were acting in 'good faith and in accord with their
normal practice,' " second, in the light of the procedures actually used
the chances that preserved samples would have exculpated the defendants were
slim, and, third, even if the samples
might have shown inaccuracy in the tests, the defendants had "alternative
means of demonstrating their innocence."
In the present case, the likelihood that the preserved materials would
have enabled the defendant to exonerate himself appears to be greater than it
was in Trombetta, but here, unlike in Trombetta, the State did
not attempt to make any use of the materials in its own case in chief.
Our decisions in related areas have stressed
the importance for constitutional purposes of good or bad faith on the part of
the Government when the claim is based on loss of evidence attributable to the
Government. In United
States v. Marion,
404 U.S. 307 (1971), we said that "[n]o actual
prejudice to the conduct of the defense is alleged or proved, and there is no
showing that the Government intentionally delayed to gain some tactical
advantage over appellees or to harass them." Similarly, in United States v. Valenzuela-Bernal, supra, we
considered whether the Government's deportation of two witnesses who were
illegal aliens violated due process.
We held that the prompt deportation of the witnesses was justified
"upon the Executive's good-faith determination that they possess no evidence
favorable to the defendant in a criminal prosecution."
The Due
Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of
the State irrelevant when the State fails to disclose to the defendant material
exculpatory evidence. But we think the
Due Process Clause requires a different result when we deal 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. Part of the
reason for the difference in treatment is found in the observation made by the
Court in Trombetta,
supra,, that "[w]henever potentially exculpatory evidence is
permanently lost, courts face the treacherous task of divining the import of
materials whose contents are unknown and, very often, disputed." Part of it stems from our unwillingness to
read the "fundamental fairness" requirement of the Due Process Clause
as imposing on the police an undifferentiated and absolute duty to retain and
to preserve all material that might be of conceivable evidentiary significance
in a particular prosecution. We think
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. We therefore hold 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.
In this case, the police collected the
rectal swab and clothing on the night of the crime; respondent was not taken into custody until six weeks later. The failure of the police to refrigerate
the clothing and to perform tests on the semen samples can at worst be
described as negligent. None of this information was concealed from respondent
at trial, and the evidence--such as it was--was made available to respondent's
expert who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its
opinion--and we agree--that there was no suggestion of bad faith on the part of
the police. It follows, therefore,
from what we have said, that there was no
violation of the Due Process Clause.
The
Arizona Court of Appeals also referred somewhat obliquely to the State's
"inability to quantitatively test" certain semen samples with the
newer P-30 test. If the court meant by this statement that the Due Process
Clause is violated when the police fail to use a particular investigatory tool,
we strongly disagree. The situation
here is no different than a prosecution for drunken driving that rests on
police observation alone; the defendant
is free to argue to the finder of fact that a breathalyzer test might have been
exculpatory, but the police do not have a constitutional duty to perform any
particular tests.
The judgment of the Arizona Court of Appeals
is reversed, and the case is remanded for further proceedings not inconsistent
with this opinion.
Reversed.
Justice STEVENS, concurring in the judgment.
Three factors are of critical importance to
my evaluation of this case. First, at
the time the police failed to refrigerate the victim's clothing, and thus
negligently lost potentially valuable evidence, they had at least as great an
interest in preserving the evidence as did the person later accused of the
crime. Indeed, at that time it was
more likely that the evidence would have been
useful to the police--who were still conducting an investigation--and to the
prosecutor--who would later bear the burden of establishing guilt beyond a
reasonable doubt--than to the defendant.
In cases such as this, even without a prophylactic sanction such as dismissal
of the indictment, the State has a strong incentive to preserve the evidence.
Second, although it is not possible to know
whether the lost evidence would have revealed any relevant information, it is
unlikely that the defendant was prejudiced by the State's omission. In examining witnesses and in her
summation, defense counsel impressed upon the jury the fact that the State
failed to preserve the evidence and that the State could have conducted tests
that might well have exonerated the defendant. More significantly, the trial
judge instructed the jury: "If you
find that the State has ... allowed to be destroyed or lost any evidence
whose content or quality are in issue,
you may infer that the true fact is against the State's interest." As a result, the uncertainty as to what the
evidence might have proved was turned to the defendant's advantage.
Third, the fact that no juror chose to draw
the permissive inference that proper preservation of the evidence would have
demonstrated that the defendant was not the assailant suggests that the lost
evidence was "immaterial."
Our cases make clear that "[t]he
proper standard of materiality must reflect our overriding concern with the
justice of the finding of guilt," and that a State's failure to turn over
(or preserve) potentially exculpatory evidence therefore "must be
evaluated in the context of the entire record. In declining defense counsel's
and the court's invitations to draw the permissive inference, the jurors in
effect indicated that, in their view, the other evidence at trial was so
overwhelming that it was highly improbable that the lost evidence was
exculpatory. In Trombetta, this
Court found no due process violation because "the chances [were] extremely
low that preserved [breath] samples
would have been exculpatory. In this
case, the jury has already performed this calculus based on its understanding
of the evidence introduced at trial.
Presumably, in a case involving a closer question as to guilt or
innocence, the jurors would have been more ready to infer that the lost evidence
was exculpatory.
With these factors in mind, I concur in the
Court's judgment. I do not, however, join the Court's opinion because
it announces a proposition of law that is much broader than necessary to decide
this case. It states 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." In my opinion,
there may well be cases in which the defendant is unable to prove that the
State acted in bad faith but in which the loss or destruction of evidence is
nonetheless so critical to the defense as to make a criminal trial
fundamentally unfair. This, however,
is not such a case. Accordingly, I
concur in the judgment.
Justice BLACKMUN, with whom Justice BRENNAN
and Justice MARSHALL join, dissenting.
The Constitution requires that criminal
defendants be provided with a fair trial, not merely a "good faith"
try at a fair trial. Respondent here,
by what may have been nothing more than police ineptitude, was denied the
opportunity to present a full defense.
That ineptitude, however, deprived respondent of his guaranteed right to
due process of law. In reversing the
judgment of the Arizona Court of Appeals, this Court, in my view, misreads the import of its prior cases and unduly restricts
the protections of the Due Process Clause.
An understanding of due process demonstrates that the evidence which was
allowed to deteriorate was "constitutionally material," and that its
absence significantly prejudiced respondent.
Accordingly, I dissent.
I
The Court, with minimal reference to our past
cases and with what seems to me to be less than complete analysis, announces
that "unless a criminal defendant can show bad faith on the part of
police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law." This conclusion is claimed to be justified
because it limits the extent of police responsibility "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." The majority has identified clearly one type
of violation, for police action affirmatively aimed at cheating the process
undoubtedly violates the Constitution.
But to suggest that this is the only way in which the Due Process Clause
can be violated cannot be correct.
Regardless of intent or lack thereof, police action that results in a
defendant's receiving an unfair trial constitutes a deprivation of due process.
The Court's most recent pronouncement in
"what might loosely be called the area
of constitutionally guaranteed access to evidence, Trombetta, addressed
"the question whether the Fourteenth Amendment ... demands that the State
preserve potentially exculpatory evidence on behalf of defendants. Justice MARSHALL, writing for the Court,
noted that while the particular question was one of first impression, the general
standards to be applied had been developed in a number of cases, including Brady
and Agurs. Those cases in no way require that government actions that deny a
defendant access to material evidence be taken in bad faith in order to violate
due process.
As noted
by the majority, the Court in Brady ruled that "the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.
The Brady Court went on to explain that the principle underlying
earlier cases, is "not punishment of society for misdeeds of a prosecutor
but avoidance of an unfair trial to the accused." 373
U.S., at 87, 83 S.Ct., at 1196. The failure to turn over material evidence
"casts the prosecutor in the role of an architect of a proceeding that
does not comport with standards of justice, even though, as in the present
case, his action is not 'the result of guile.'
In Trombetta, the Court also relied on
Agurs which required a prosecutor to turn over to the defense evidence
that was "clearly supportive of a claim of innocence" even without a
defense request. The Court noted that
the prosecutor's duty was not one of constitutional dimension unless the
evidence wassuch that its "omission deprived the defendant of a fair
trial, and explained:
"Nor do we believe the constitutional obligation is
measured by the moral culpability, or the willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he
should be presumed to recognize its significance even if he has actually
overlooked it.... If the suppression of
evidence results in constitutional error, it is because of the character of the
evidence, not the character of the prosecutor.
Agurs thus made plain that the
prosecutor's state of mind is not determinative. Rather, the proper standard must focus on
the materiality of the evidence, and that standard "must reflect our
overriding concern with the justice of the
finding of guilt.
Brady and Agurs could not be
more clear in their holdings that a prosecutor's bad faith in interfering with
a defendant's access to material evidence is
not an essential part of a due process violation. Nor did
Trombetta create such a requirement. Trombetta 's initial discussion focused on the due process
requirement "that criminal defendants be afforded a meaningful opportunity
to present a complete defense, and then noted that the delivery of exculpatory
evidence to the defendant "protect[s] the innocent from erroneous
conviction and ensur [es] the integrity of our criminal justice
system." Although the language of Trombetta
includes a quotation in which the words "in good faith" appear, those
words, for two reasons, do not have the significance claimed for them by the
majority. First, the words are the
antecedent part of the fuller phrase "in good faith and in accord with
their normal practice. That phrase has its source in Killian
v. United Sts,
368 U.S. 231 (1961), where the Court held that
the practice of discarding investigators' notes, used to compile reports that
were then received in evidence, did not violate due process. In
both Killian and Trombetta, the importance of police compliance
with usual procedures was manifest.
Here, however, the same standard of conduct cannot be claimed. There has been no suggestion that it was
the usual procedure to ignore the possible deterioration of important evidence,
or generally to treat material evidence in a negligent or reckless manner.
Nor can the failure to refrigerate the clothing be squared with the
careful steps taken to preserve the sexual-assault kit. The negligent or reckless failure to
preserve important evidence just cannot be "in accord with ... normal
practice."
Second, and more importantly, Trombetta
demonstrates that the absence of bad faith does not end the analysis. The determination in Trombetta that
the prosecution acted in good faith and according to normal practice merely
prefaced the primary inquiry, which centers on the "constitutional
materiality" of the evidence itself. There is nothing in Trombetta
that intimates that good faith alone should be the measure.
The cases in this area clearly establish
that police actions taken in bad faith are not the only species of police
conduct that can result in a violation of due process. As Agurs points out, it makes no
sense to overturn a conviction because a malicious prosecutor withholds
information that he mistakenly believes to be material, but which actually would have been of no help to
the defense. In the same way, it makes
no sense to ignore the fact that a defendant has been denied a fair trial
because the State allowed evidence that was material to the defense to deteriorate beyond the point of usefulness,
simply because the police were inept rather than malicious.
I also doubt that the "bad faith"
standard creates the bright-line rule sought by the majority. Apart from the inherent difficulty a
defendant would have in obtaining evidence to show a lack of good faith, the
line between "good faith" and "bad faith" is anything but
bright, and the majority's formulation may well create more questions than it
answers. What constitutes bad faith
for these purposes? Does a defendant
have to show actual malice, or would recklessness, or the deliberate failure to
establish standards for maintaining and preserving evidence, be
sufficient? Does "good faith
police work" require a certain minimum of diligence, or will a lazy
officer, who does not walk the few extra steps to the evidence refrigerator, be
considered to be acting in good faith? While the majority leaves these
questions for another day, its quick embrace of a "bad faith"
standard has not brightened the line;
it only has moved the line so as to provide fewer protections for
criminal defendants.
II
The inquiry the majority eliminates in
setting up its "bad faith" rule is whether the evidence in question
here was "constitutionally material," so that its destruction
violates due process. The majority
does not say whether "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," is, for
purposes of due process, material. But
because I do not find the question of lack of bad faith dispositive, I now
consider whether this evidence was such that its destruction rendered
respondent's trial fundamentally unfair.
Trombetta requires that a court determine
whether the evidence possesses "an
exculpatory value that was apparent before the evidence was destroyed,"
and whether it was "of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means. In Trombetta neither requirement was
met. But it is important to note that
the facts of Trombetta differed significantly from those of this
case. As such, while the basic
standards set by Trombetta are controlling, the inquiry here must be
more finely tuned.
In Trombetta, samples of breath taken
from suspected drunk drivers had been discarded after police had tested them
using an Intoxilyzer, a highly accurate and reliable device for measuring
blood-alcohol concentration levels. The Court reasoned that the likelihood of
the posttest samples proving to be exculpatory was extremely low, and further
observed that the defendants were able to attack the reliability of the test
results by presenting evidence of the ways in which the Intoxilyzer might have malfunctioned. This case differs from Trombetta in
that here no conclusive tests were
performed on the relevant evidence.
There is a distinct possibility in this case, one not present in Trombetta,
that a proper test would have exonerated respondent, unrebutted by any other
conclusive test results. As a
consequence, although the discarded evidence in Trombetta had
impeachment value (i.e., it might have shown that the test results were
incorrect), here what was lost to the respondent was the possibility of
complete exoneration. Trombetta
's specific analysis, therefore, is not directly controlling.
The exculpatory value of the clothing in this
case cannot be determined with any certainty, precisely because the police
allowed the samples to deteriorate.
But we do know several important things about the evidence. First, the semen samples on the clothing
undoubtedly came from the assailant.
Second, the samples could have been tested, using technology available
and in use at the local police department, to show either the blood type of the
assailant, or that the assailant was a nonsecreter, i.e., someone who
does not secrete a blood-type "marker" into other body fluids, such
as semen. Third, the evidence was
clearly important. A semen sample in a
rape case where identity is questioned is always significant. Fourth, a reasonable police officer should
have recognized that the clothing required refrigeration. Fifth, we know that an inconclusive test
was done on the swab. The test
suggested that the assailant was a nonsecreter, although it was equally likely
that the sample on the swab was too small for accurate results to be
obtained. And, sixth, we know that
respondent is a secreter.
If the samples on the clothing had been
tested, and the results had shown either the blood type of the assailant or
that the assailant was a nonsecreter, its constitutional materiality would be
clear. But the State's conduct has
deprived the defendant, and the courts, of the opportunity to determine with
certainty the import of this evidence:
it has "interfere[d] with the accused's ability to present a
defense by imposing on him a requirement which the government's own actions
have rendered impossible to fulfill. Good faith or not, this is intolerable,
unless the particular circumstances of the case indicate either that the
evidence was not likely to prove exculpatory, or that the defendant was able to
use effective alternative means to prove the point the destroyed evidence
otherwise could have made.
I recognize the difficulties presented by
such a situation. The
societal interest in seeing criminals punished rightly requires that
indictments be dismissed only when the unavailability of the evidence prevents
the defendant from receiving a fair trial.
In a situation where the substance of the lost evidence is known, the
materiality analysis laid out in Trombetta is adequate. But in a situation like the present one,
due process requires something more.
Rather than allow a State's ineptitude to saddle a defendant with an
impossible burden, a court should focus on the type of evidence, the
possibility it might prove exculpatory, and the existence of other evidence
going to the same point of contention in determining whether the failure to
preserve the evidence in question violated due process. To put it succinctly, where no comparable
evidence is likely to be available to the defendant, police must preserve
physical evidence of a type that they reasonably should know has the potential,
if tested, to reveal immutable characteristics of the criminal, and hence to
exculpate a defendant charged with the crime.
The first inquiry under this standard
concerns the particular evidence itself.
It must be of a type which is clearly relevant, a requirement satisfied,
in a case where identity is at issue, by physical evidence which has come from
the assailant. Samples of blood and
other body fluids, fingerprints, and hair and tissue samples have been used to
implicate guilty defendants, and to exonerate innocent suspects. This is not to say that all physical
evidence of this type must be preserved.
For example, in a case where a blood sample is found, but the
circumstances make it unclear whether the sample came from the assailant, the
dictates of due process might not compel preservation (although principles of
sound investigation might certainly do so).
But in a case where there is no doubt that the sample came from the
assailant, the presumption must be that it be preserved.
A corollary, particularly applicable to this
case, is that the evidence embody some
immutable characteristic of the assailant which can be determined by available
testing methods. So, for example, a
clear fingerprint can be compared to the defendant's fingerprints to yield a
conclusive result; a blood sample, or a
sample of body fluid which contains blood markers, can either completely exonerate
or strongly implicate a defendant. As
technology develops, the potential for this type of evidence to provide
conclusive results on any number of questions will increase. Current genetic testing measures,
frequently used in civil paternity suits, are extraordinarily precise. The importance of these types of evidence is
indisputable, and requiring police to recognize their importance is not
unreasonable.
The next inquiry is whether the evidence,
which was obviously relevant and indicates an immutable characteristic of the
actual assailant, is of a type likely to be independently exculpatory. Requiring the defendant to prove that the
particular piece of evidence probably would be independently exculpatory would require the defendant to prove the
content of something he does not have because of the State's misconduct. Focusing on the type of evidence
solves this problem. A court will be
able to consider the type of evidence and the available technology, as well as
the circumstances of the case, to determine the likelihood that the evidence
might have proved to be exculpatory. The evidence must also be without
equivalent in the particular case. It
must not be cumulative or collateral, and must bear directly on the question of
innocence or guilt.
Due process must also take into account the
burdens that the preservation of evidence places on the police. Law enforcement officers must be provided
the option, as is implicit in Trombetta, of performing the proper tests
on physical evidence and then discarding it. Once a suspect has been arrested the police,
after a reasonable time, may inform defense counsel of plans to discard the
evidence. When the defense has been
informed of the existence of the evidence, after a reasonable time the burden
of preservation may shift to the defense.
There should also be flexibility to deal with evidence that is unusually
dangerous or difficult to store.
III
Applying this standard to the facts of this
case, I conclude that the Arizona Court of Appeals was correct in overturning
respondent's conviction. The clothing
worn by the victim contained samples of his assailant's semen. The appeals court found that these samples
would probably be larger, less contaminated, and more likely to yield
conclusive test results than would the samples collected by use of the assault
kit. The clothing and the semen stains on the clothing therefore obviously were
material.
Because semen is a body fluid which could
have been tested by available methods to show an immutable characteristic of
the assailant, there was a genuine possibility that the results of such testing
might have exonerated respondent. The
only evidence implicating respondent was the testimony of the victim. There
was no other eyewitness, and the only other significant physical evidence,
respondent's car, was seized by police, examined, turned over to a wrecking
company, and then dismantled without the victim's having viewed it. The police also failed to check the car to
confirm or refute elements of the victim's testimony
Although a closer question, there was no equivalent
evidence available to respondent. The
swab contained a semen sample, but it was not sufficient to allow proper
testing. Respondent had access to
other evidence tending to show that he was not the assailant, but there was no
other evidence that would have shown that it was physically impossible for
respondent to have been the assailant.
Nor would the preservation of the evidence here have been a burden upon
the police. There obviously was
refrigeration available, as the preservation of the swab indicates, and the
items of clothing likely would not tax
available storage space.
Considered in the context of the entire
trial, the failure of the prosecution to preserve this evidence deprived
respondent of a fair trial. It still
remains "a fundamental value determination of our society that it is far
worse to convict an innocent man than to let a guilty man go free. The evidence in this case was far from
conclusive, and the possibility that the evidence denied to respondent would
have exonerated him was not remote.
The result is that he was denied a fair trial by the actions of the State,
and consequently was denied due process of law. Because the Court's opinion improperly limits the scope of due
process, and ignores its proper focus in a futile pursuit of a bright-line
rule, I dissent.