Lost or Destroyed Evidence by the Police in Colorado - What are Your Rights - the Law?

By H. Michael Steinberg Colorado Criminal Defense Lawyer

When you are charged with a crime in Colorado you and your lawyer will receive copies of the reports surrounding the investigation of that charge. That investigation - if not thorough and complete - has the greatest impact on the defense counted to fight that charge. This article addresses what happens when evidence is lost or destroyed or never even collected, and the laws related to those issues.

If the State fails to produce critical evidence (see below) and there is “bad faith” in the exercise of that decision to hide, destroy, or suppress key evidence, that failure can lead to the dismissal of the charges.

Key evidence may be exactly the kind of evidence necessary to mount a defense, such as self defense; it could be alibi evidence that may be used to establish a Defendant could not have committed the crime. Documents may be destroyed that can disprove an alleged forged check, or perhaps a videotape may be hidden that could prove that others committed an armed robbery.

Hiding or destroying this kind of critical evidence can impact a case at many levels. A jury deprived of this evidence may reach the wrong conclusion. The act of withholding, destroying, manipulating, or misleading the Defense is called spoliation.

The laws in Colorado criminal cases are clear - ALL discovery - the process of the State turning over all of the evidence revealed in the investigation to the defense - must be thorough, complete, and timely.

Seeking the truth means that defending a criminal case may rely on the defense having every stitch of evidence that may make a difference in deciding to try to reach a plea bargain or taking a case to trial.

The strength of the evidence marshaled by the State and having been revealed under the very strict rules of “ making discovery,” frames the foundation of many of the most significant decisions to both sides as the criminal case proceeds throughout the criminal justice system.

Therefore the intentional, reckless, or negligent withholding of evidence by either party to the proceeding is not only illegal - the withholding of evidence can be serious enough to warrant harsh sanctions to include the dismissal of that case.

“State action” that makes evidence unavailable for a criminal case is the foundation of spoliation of evidence. This includes witness tampering or witness intimidation.

There are several tests applied by the Colorado Courts when evidence is not preserved. There is no requirement that the State preserve ALL evidence - only evidence that might be expected to play a significant role in the defense of the case. The term “material” evidence is applied to evidence that is directly relevant to a key issue to the defense of the case. “Exculpatory” evidence is evidence that tends to prove the accused’s innocence.

Examples include:

• Crime scene evidence.
• Audio and video recordings of the scene or of witness statements.
• Investigative notes.
• 911 call recordings.
• Forensic Evidence.
• Documentary evidence.

This may seem confusing - but it is actually very straightforward. “State action” in the loss or destruction of evidence is required for the acts of the individuals responsible for the lost or destroyed evidence to be punished. The duty to preserve evidence ONLY APPLIES TO LAW ENFORCEMENT, it does not extend to private citizens unless they have a legally cognizable relationship with a law enforcement agency.

An example of this limitation would be 7-11 store security camera footage in an armed robbery that would clear the Defendant of accountability, but that is not collected by law enforcement and subsequently destroyed by the business before it could be could be seized and preserved. In most cases, this kind of scenario will not qualify for a Lost or Destroyed Motion to Dismiss as the police may have failed to preserve it in time but, in the absence of bad faith, this kind of error is probably not actionable.

The Motion to Dismiss mentioned in this article throughout is sometimes called a A “Trombetta-Youngblood-Greathouse ” Motion (TYG) which name derives from the key criminal cases decided by Courts of Appeal in this area.

In Colorado, the law requires Defendants to raise, and then prove, that the State violated its duty to preserve evidence, and that violation was of such a degree that it compromised the accused’s rights to due process and a fair trial. The evidence in question must be material and potentially exculpatory and, most importantly, the defense must prove that the government acted in bad faith. This is a very difficult thing to prove.

In Colorado, a prosecuting attorney is required to ensure that the flow of information is maintained between the various investigative personnel and his or her offic sufficient to place within his or her possession or control all material and information relevant to the accused and the offense charged. C.R.C.P. 16 (b)(4).

Principals of agency also charge the prosecuting authority with the knowledge of its agents, to include all parts of the chain of investigation, and which also include the police and all members of the law enforcement team.

The prosecution has an affirmative duty to obtain information from various investigators and his or her agents that is relevant to the accused. However, for a due process analysis, the duty of the state to preserve evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense.” This is a clear duty to preserve evidence obtained during the investigatory stages of a case when that evidence is “constitutionally material.”

Evidence is constitutionally material if it possesses an exculpatory value that was apparent before its destruction and is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

A Defendant must also show that the loss or destruction of the evidence was the result of bad faith on the part of the prosecution.

The Process - Your Lawyer Will File a Trombetta-Youngblood-Greathouse (TYG) Motion to Dismiss

It is a Due Process violation for the State to fail to provide to the Defendant favorable evidence that is material to either guilt or punishment. The Due Process Clause of the Fourteenth Amendment mandates that the State disclose such evidence.

When evidence can be collected and preserved in the performance of routine procedures by state agents, the failure to do so is tantamount to suppression of the evidence. The accused need only establish "the reasonable possibility that the evidence could have been of assistance to the defense."

Investigators have a duty to act in good faith, and this requirement imposes upon investigators a duty to collect and preserve evidence that could be “reasonable and foreseeable favorable” to the accused.

Colorado Courts have written the following in this area:

"We have cautioned, however, that when evidence can be collected and there are procedures by state agents, failure to do so is tantamount to suppression of the evidence and that the state must employ regular procedures to preserve evidence which a state agent, in the regular performance of his duties, could reasonably foresee might be favorable to the accused.".

The rationale for this rule in the trial of a criminal case is a sober search for truth, not a game of fox and hounds, and resources readily available to the state must be put to work in aid of that search for truth.

In the Greathouse case, the Colorado Supreme Court adopted the two-prong test from California v. Trombetta, ....

“In order to establish a due process violation, a defendant must prove that the evidence was suppressed or destroyed by state action and that the evidence was material.”

To be "constitutionally material," the evidence must possess an exculpatory value that was apparent before the evidence was destroyed, and must also be of such a nature that the Defendant would be unable to obtain comparable evidence by other reasonably available means.

A Defendant who establishes "materiality" under the Trombetta standard, however, need not show that the evidence had a character favorable to the defendant because once the evidence has been destroyed or lost, the court cannot determine whether it would have exculpated the defendant.

Thus, the tests in Colorado to be applied in this situation are:

• (1) Was the evidence destroyed by state action?
• (2) Did the evidence possess an exculpatory value that was apparent before it was destroyed? ... and
• (3) Is the Defendant is unable to obtain comparable evidence by other reasonably available means?

Whether a due process violation has occurred requires an evaluation of all the evidence by the fact finder.

• Did the police follow routine investigative procedures that relate to conducting a competent investigation aimed at discovering whether a crime had occurred?
• Did the police fail to collect and preserve evidence that could be reasonable and foreseeable favorable to the accused?
• Did law enforcement actively choose not to fully and properly investigate and determine any truth when faced with the possibility of lies, and conflicting statements from witnesses and or the alleged victims?
• Did the evidence possess an apparent exculpatory value? (Note that when evidence does not exist, it can be difficult to determine whether it is exculpatory or not). It is, of course, impossible for the accused to prove and courts to determine whether uncollected evidence would in fact exculpate the defendant.
• Is there comparable evidence still available that can be discovered and utilized through reasonable due diligence?

A violation of a Defendant’s right to due process may occur only when the Government acts in bad faith in destroying the evidence in question. The interesting aspect of this rule is that it is still true even if the exculpatory value of the evidence is not apparent, and all that can be determined is that the lost or destroyed evidence was potentially useful to the Defendant’s theory of the case. Put differently, a bad faith failure on the part of law enforcement to collect potentially exculpatory evidence constitutes a denial of due process under the Fourteenth Amendment to the United States Constitution.

Bad faith is not well defined but most courts view the an act of bad faith to mean an act done "wrongfully."

In such circumstances, the accused must establish "'the reasonable possibility that the evidence could have been of assistance to the defense.'

Bad faith in a police investigation occurs when law enforcement actively and blatantly ignore preserving exculpatory information. This issue turns on the “materiality” of the lost or destroyed evidence.

Evidence is material, and destroyed in bad faith, if law enforcement officers had reason to believe the evidence was exculpatory before they destroyed it, and that evidence cannot be replaced by other reasonably available evidence.

The materiality of evidence can be inferred from law enforcement’s actions. If the police, in the exercise of their standard procedures, normally preserve the type of evidence in question, but in this instance destroyed that evidence, it is clear that it is a reasonable inference that the evidence was material.

Proving bad faith is clearly not an simple task. It’s not enough that Government actors were careless or negligent with the evidence - proving bad faith requires much more. In Colorado, a Defendant must show a willful, deceitful, or malicious intent. While the failure to follow standard procedures by law enforcement may open the door to a lost or destroyed evidence motion, and may support an inference of bad faith, the showing of bad faith requires more information. A good example of bad faith is the intentional destruction of a video that could show that another person might have committed the crime or crimes charged.

Proving bad faith is at the heart of a Colorado Greathouse Motion and is the proverbial ‘highest mountain to climb’ in making out a case for a sanction for lost or destroyed evidence.

When Spoliation is Proven by the Defense - What Happens Next?

When a Defendant meets the tests set out above and has proven spoiliation, what are the options available to the Judge?

There are several possible sanctions that a Trial Judge may impose when a Defendant meets his burden of proof in a Greathouse Motion. The Defense may ask that a Court to:

1. Suppress the related evidence - essentially stopping all related evidence from being seen or heard by the jury.
2. Instruct the Jury on the issues regarding the missing evidence. A an example would be an instruction that the jury can presume that if the specific lost or destroyed evidence would not have been destroyed, it would have gone against the party responsible for its destruction.
3. Limit any evidence or testimony regarding the lost or destroyed evidence.
4. Dismiss the case.
5. Overturning a conviction and obtaining a new trial on appeal if the missing or lost evidence emerges following the trial.

The Trial Judge’s decision to impose a sanction after the Defense has proven its case is based on a balancing of basic fairness with an analysis of the harm that has resulted from the lost or destroyed evidence. Almost certainly, whatever a Trial Judge decides, it will be closely scrutinized in a subsequent appeal.

With this in mind, most Trial Judges will select the least severe sanction that produces the most just result that given the options referenced above.

When a Defendant's due process rights have been flagrantly violated, a Trial Court's order excluding all evidence pertaining to the destroyed evidence may be an option the Court will exercise. Suppression of the evidence is proper where the Defense has established a pattern of bad faith in the handling of key and relevant evidence.

In the most extreme cases, a dismissal of the case is appropriate because no less severe sanction would preserve the Defendant's right to a fair trial. However, only the most extreme bad faith conduct on the part of law enforcement will meet this level of governmental misconduct, and warrant the severe sanction of dismissal - exercised as an act of punishment not only in the name of due process but, of course, deterrence.

While many remedies short of total suppression can be imposed which will adequately protect the rights of the defendant, Colorado cases have held that suppression was proper when the evidence was critical to the proof of guilt or innocence and its destruction barred the defendant from fully presenting his theory of defense

The duty to collect and preserve evidence exists to protect the accused’s rights to due process and to a fair trial under the Sixth and 14th Amendments to the U.S. Constitution.

The failure to preserve, or investigate material, exculpatory evidence that is critical to the proof of the guilt or innocence of the accused, or a destruction of material evidence that relates directly to the accused’s theory of defense, mandates that a Trial Judge take action in fashioning a remedy to punish the State’s case that is appropriate to the value of the evidence lost if the Defense meets the burdens of proof outlined above.

Criminal investigations are intended to be a search for the truth. When Colorado law enforcement exercises bad faith in that investigation - not just bad judgment or negligence, but a dishonest purpose, moral obliquity, conscious wrongdoing, reflecting a breach of a known duty through some ulterior motive, Colorado Trial Judges must act to punish that act harshly to preserve the sanctity of the criminal justice system.

Please feel free to contact The Steinberg Colorado Criminal Defense Law Firm to request a free consultation if this issue, or other complex issues presents in your or your loved one’s criminal case.