| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 86-1904 |
| [3] | 1988.SCT.45288 <http://www.versuslaw.com>; 488
U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281, 57 U.S.L.W. 4013 |
| [4] | decided: November 29, 1988. |
| [5] | ARIZONA, PETITIONER v. YOUNGBLOOD, LARRY |
| [6] | CERTIORARI TO THE COURT OF APPEALS OF ARIZONA. |
| [7] | John R. Gustafson argued the cause for petitioner. With him on the
brief were Stephen D. Neely, James M. Howard, and Deborah Strange
Ward. |
| [8] | Daniel F. Davis argued the cause and filed a brief for
respondent. |
| [9] | 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. 59. Blackmun, J., filed a dissenting
opinion, in which Brennan and Marshall, JJ., joined, post, p.
61. |
| [10] | Author: Rehnquist |
| [11] | CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court. |
| [12] | 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. 153 Ariz. 50, 734 P. 2d 592 (1986). 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. |
| [13] | 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. |
| [14] | 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. |
| [15] | 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. |
| [16] | 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. |
| [17] | Respondent was indicted on charges of child molestation, sexual
assault, and kidnaping. 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. |
| [18] | 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. |
| [19] | 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." 10 Tr. 90. |
| [20] | 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.'" 153 Ariz., at
54, 734 P. 2d, at 596, quoting State v. Escalante, 153 Ariz. 55, 61, 734
P. 2d 597, 603 (App. 1986). 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." 153 Ariz., at 54, 734 P. 2d, at 596. The Supreme Court
of Arizona denied the State's petition for review, and we granted
certiorari. 485 U.S. 903 (1988). We now
reverse. |
| [21] | Decision of this case requires us to again consider "what might
loosely be called the area of constitutionally guaranteed access to
evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). 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." Id., at 87. 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." Id., at 111; see also Moore v.
Illinois, 408 U.S. 786, 795 (1972) ("We know of no
constitutional requirement that the prosecution make a complete and
detailed accounting to the defense of all police investigatory work on a
case"). |
| [22] | 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 drunken 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,'" id., at 488, quoting Killian v. United States, 368 U.S. 231, 242 (1961); second, in the light of the
procedures actually used the chances that preserved samples would have
exculpated the defendants were slim, 467 U.S., at 489; and, third, even if the samples might have shown
inaccuracy in the tests, the defendants had "alternative means of
demonstrating their innocence." Id., at 490. 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.*fn*
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." Id., at 325;
see also United States v. Lovasco, 431 U.S. 783, 790
(1977). 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." Id., at 872. |
| [23] | 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, at 486, 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, see Lisenba v. California, 314 U.S. 219, 236 (1941), 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. |
| [24] | 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. |
| [25] | 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. 153 Ariz., at 54, 734 P. 2d, at 596. 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. |
| [26] | The judgment of the Arizona Court of Appeals is reversed, and the case
is remanded for further proceedings not inconsistent with this
opinion. |
| [27] | Reversed. |
| [28] | Disposition |
| [29] | 153 Ariz. 50, 734 P. 2d 592, reversed. |
| [30] | JUSTICE STEVENS, concurring in the judgment. |
| [31] | 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. |
| [32] | 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. See
App. to Pet. for Cert. C21-C38, C42-C45; 9 Tr. 183-202, 207-208; 10 Tr.
58-61, 69-70. 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." 10 Tr. 90. As a result, the uncertainty as to what the
evidence might have proved was turned to the defendant's
advantage. |
| [33] | 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." United States v. Agurs, 427 U.S.
97, 112 (1976) (footnotes omitted); see also California v.
Trombetta, 467 U.S. 479, 488 (1984) (duty to preserve
evidence "must be limited to evidence that might be expected to play a
significant role in the suspect's defense"). 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." Id., at 489. 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. |
| [34] | 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." Ante, at 58. 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. |
| [35] | JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join,
dissenting. |
| [36] | 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. |
| [37] | I |
| [38] | 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." Ante, at 58. 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." Ibid. 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. |
| [39] | The Court's most recent pronouncement in "what might loosely be called
the area of constitutionally guaranteed access to evidence," United States
v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982), is in
California v. Trombetta, 467 U.S. 479 (1984).
Trombetta addressed "the question whether the Amendment . . . demands that
the State preserve potentially exculpatory evidence on behalf of
defendants." Id., at 481. 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 v. Maryland, 373 U.S. 83 (1963), and
United States v. Agurs, 427 U.S. 97 (1976).*fn1
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. |
| [40] | As noted by the majority, ante, at 55, 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." 373 U.S., at 87. The Brady Court went
on to explain that the principle underlying earlier cases, e. g., Mooney
v. Holohan, 294 U.S. 103 (1935) (violation of due
process when prosecutor presented perjured testimony), is "not punishment
of society for misdeeds of a prosecutor but avoidance of an unfair trial
to the accused." 373 U.S., at 87. 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.'"
Id., at 88 (quoting lower court opinion). |
| [41] | In Trombetta, the Court also relied on United States v. Agurs, 427 U.S., at 107, 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 was such that its "omission deprived the defendant of a fair
trial," id., at 108, and explained: |
| [42] | "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." Id., at 110 (footnote omitted).*fn2 |
| [43] | 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." Id., at 112.*fn3 |
| [44] | 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," 467 U.S., at 485, 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." Ibid.
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." Id., at 488. That phrase has its source in Killian
v. United States, 368 U.S. 231, 242 (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.*fn4
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." |
| [45] | 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. 467 U.S., at 489. There is nothing
in Trombetta that intimates that good faith alone should be the measure.*fn5 |
| [46] | 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. 427 U.S., at 110. 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. |
| [47] | 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. |
| [48] | II |
| [49] | 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," ante, at 57, 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. |
| [50] | 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." 467 U.S., at 489. 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. |
| [51] | 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. Id., at 481-482. 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. |
| [52] | 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. See Hilliard v. Spalding, 719 F.2d 1443, 1446-1447 (CA9 1983); People v. Nation, 26 Cal. 3d 169,
176-177, 604 P. 2d 1051, 1054-1055 (1980). 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. |
| [53] | 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."
Hilliard v. Spalding, 719 F.2d, at 1446. 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. |
| [54] | I recognize the difficulties presented by such a situation.*fn6
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. |
| [55] | 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. See Clark v. Jeter, 486 U.S. 456, 465 (1988). The importance of these
types of evidence is indisputable, and requiring police to recognize their
importance is not unreasonable. |
| [56] | 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, cf. United
States v. Agurs, 427 U.S., at 113-114, and must bear
directly on the question of innocence or guilt. |
| [57] | 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.*fn7
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. |
| [58] | III |
| [59] | 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.
153 Ariz. 50, 54, 734 P. 2d 592, 596 (1986). The clothing and
the semen stains on the clothing therefore obviously were
material. |
| [60] | 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.*fn8
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.*fn9
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. |
| [61] | 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."
In re Winship, 397 U.S. 358, 372 (1970) (concurring
opinion). 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,*fn10
I dissent. |
|
| |
| Opinion Footnotes | |
|
| |
| [62] | *fn*
In this case, the Arizona Court of Appeals relied on its earlier decision
in State v. Escalante, 153 Ariz. 55, 734 P. 2d 597 (1986), holding that
"'when identity is an issue at trial and the police permit destruction of
evidence that could eliminate a defendant as the perpetrator, such loss is
material to the defense and is a denial of due process.'" 153 Ariz. 50,
54, 734 P. 2d 592, 596 (1986), quoting Escalante, supra, at 61, 734 P. 2d,
at 603 (emphasis added). The reasoning in Escalante and the instant case
mark a sharp departure from Trombetta in two respects. First, Trombetta
speaks of evidence whose exculpatory value is "apparent." 467
U.S., at 489. The possibility that the semen samples could have
exculpated respondent if preserved or tested is not enough to satisfy the
standard of constitutional materiality in Trombetta. Second, we made clear
in Trombetta that the exculpatory value of the evidence must be apparent "
before the evidence was destroyed." Ibid. (emphasis added). Here,
respondent has not shown that the police knew the semen samples would have
exculpated him when they failed to perform certain tests or to refrigerate
the boy's clothing; this evidence was simply an avenue of investigation
that might have led in any number of directions. The presence or absence
of bad faith by the police for purposes of the Due Process Clause must
necessarily turn on the police's knowledge of the exculpatory value of the
evidence at the time it was lost or destroyed. Cf. Napue v. Illinois, 360 U.S. 264, 269 (1959). |
|
| |
| Dissent Footnotes | |
|
| |
| [63] | *fn1
The Court's discussion in Trombetta also noted other cases: In Napue v.
Illinois, 360 U.S. 264 (1959), the prosecution failed
to inform the defense and the trial court that one of its witnesses had
testified falsely that he had not been promised favorable treatment in
return for testifying. The Court noted that a conviction obtained by the
knowing use of such testimony must fall, and suggested that the conviction
is invalid even when the perjured testimony is "'not the result of guile
or a desire to prejudice . . . for its impact was the same, preventing, as
it did, a trial that could in any real sense be termed fair.'" Id., at
270, quoting People v. Savvides, 1 N. Y. 2d 554, 557, 136 N. E. 2d 853,
854-855 (1956). In Giglio v. United States, 405 U.S. 150 (1972), the Court required a federal prosecutor to reveal a
promise of non-prosecution if a witness testified, holding that "whether
the nondisclosure was a result of negligence or design, it is the
responsibility of the prosecutor." Id., at 154. The good faith of the
prosecutor thus was irrelevant for purposes of due process. And in Roviaro
v. United States, 353 U.S. 53 (1957), the Court held
that in some cases the Government must disclose to the defense the
identity of a confidential informant. There was no discussion of any
requirement of bad faith. |
| [64] | *fn2
The Agurs Court went on to note that the standard to be applied in
considering the harm suffered by the defendant was different from the
standard applied when new evidence is discovered by a neutral source after
trial. The prosecutor is "the 'servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer.'" 427
U.S., at 111, quoting Berger v. United States, 295
U.S. 78, 88 (1935). Holding the prosecution to a higher
standard is necessary, lest the "special significance to the prosecutor's
obligation to serve the cause of justice" be lost. 427 U.S., at
111. |
| [65] | *fn3
Nor does United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), provide support for the majority's "bad faith"
requirement. In that case a defendant was deprived of certain testimony at
his trial when the Government deported potential witnesses after
determining that they possessed no material evidence relevant to the
criminal trial. These deportations were not the result of malice or
negligence, but were carried out pursuant to immigration policy. Id., at
863-866. Consideration of the Government's motive was only the first step
in the due process inquiry. Because the Government acted in good faith,
the defendant was required to make "a plausible showing" that "the
evidence lost would be both material and favorable to the defense." Id.,
at 873. In Valenzuela-Bernal, the defendant was not able to meet that
burden. Under the majority's "bad faith" test, the defendant would have no
opportunity to try. |
| [66] | *fn4
In Killian, the notes in question related to witnesses' statements, were
used to prepare receipts which the witnesses then signed, and were
destroyed in accord with usual practice. 368 U.S., at 242. Had it not been the usual practice of the agents to
destroy their notes, or if no reports had been prepared from those notes
before they were destroyed, a different question, closer to the one the
Court decides today, would have been presented. |
| [67] | *fn5
The cases relied upon by the majority for the proposition that bad faith
is necessary to show a due process violation, United States v. Marion, 404 U.S. 307 (1971), and United States v. Lovasco, 431 U.S. 783 (1977), concerned claims that
preindictment delay violated due process. The harm caused by such delay is
certainly more speculative than that caused by the deprivation of material
exculpatory evidence, and in such cases statutes of limitations, not the
Due Process Clause, provide the primary protection for defendants'
interests. Those cases are a shaky foundation for the radical step taken
by the Court today. |
| [68] | *fn6
We noted in California v. Trombetta, 467 U.S. 479,
486 (1984): "The absence of doctrinal development in this area reflects,
in part, the difficulty of developing rules to deal with evidence
destroyed through prosecutorial neglect or oversight. Whenever 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." While the inquiry is a difficult one, I do not read
Trombetta to say, nor do I believe, that it is impossible. Respect for
constitutional rights demands that the inquiry be made. |
| [69] | *fn7
There is no need in this case to discuss whether the police have a duty to
test evidence, or whether due process requires that police testing be on
the "cutting edge" of technology. But uncertainty as to these questions
only highlights the importance of preserving evidence, so that the defense
has the opportunity at least to use whatever scientifically recognized
tests are available. That is all that is at issue in this
case. |
| [70] | *fn8
This Court "has recognized the inherently suspect qualities of eyewitness
identification evidence." Watkins v. Sowders, 449 U.S. 341, 350 (1981) (BRENNAN, J., dissenting). Such evidence is
"notoriously unreliable," ibid. ; see United States v. Wade, 388
U.S. 218, 228 (1967); Manson v. Brathwaite, 432 U.S.
98, 111-112 (1977), and has distinct impacts on juries. "All
the evidence points rather strikingly to the conclusion that there is
almost nothing more convincing than a live human being who takes the
stand, points a finger at the defendant, and says, 'That's the one!'" E.
Loftus, Eyewitness Testimony 19 (1979).
Studies show that children are more likely to make mistaken
identifications than are adults, especially when they have been encouraged
by adults. See generally Cohen & Harnick, The Susceptibility of Child
Witnesses to Suggestion, 4 Law and Human Behavior 201 (1980). Other
studies show another element of possible relevance in this case:
"Cross-racial identifications are much less likely to be accurate than
same race identifications." Rahaim & Brodsky, Empirical Evidence
versus Common Sense: Juror and Lawyer Knowledge of Eyewitness Accuracy, 7
Law and Psych. Rev. 1, 2 (1982). These authorities suggest that eyewitness
testimony alone, in the absence of corroboration, is to be viewed with
some suspicion. |
| [71] | *fn9
The victim testified that the car had a loud muffler, that country music
was playing on its radio, and that the car was started using a key.
Respondent and others testified that his car was inoperative on the night
of the incident, that when it was working it ran quietly, that the radio
did not work, and that the car could be started only by using a
screwdriver. The police did not check any of this before disposing of the
car. See 153 Ariz. 50, 51-52, 734 P. 2d 592, 593-594 (App.
1986). |
| [72] | *fn10
Even under the standard articulated by the majority the proper resolution
of this case should be a remand to consider whether the police did act in
good faith. The Arizona Court of Appeals did not state in its opinion that
there was no bad faith on the part of the police. Rather, it held that the
proper standard to be applied was a consideration of whether the failure
to preserve the evidence deprived respondent of a fair trial, and that, as
a result, its holding did "not imply any bad faith on the part of the
state." Id., at 54, 734 P. 2d, at 596. But there certainly is a sufficient
basis on this record for a finding that the police acted in bad faith. The
destruction of respondent's car by the police (which in itself may serve
on remand as an alternative ground for finding a constitutional violation,
see id., at 55, 734 P. 2d, at 597 (question left open)) certainly suggests
that the police may have conducted their investigation with an improper
animus. Although the majority provides no guidance as to how a lack of
good faith is to be determined, or just how egregious police action must
be, the police actions in this case raise a colorable claim of bad faith.
If the Arizona courts on remand should determine that the failure to
refrigerate the clothing was part of an overall investigation marred by
bad faith, then, even under the majority's test, the conviction should be
overturned. |