Loss or Destruction of Evidence – 3 Prong Test for Dismissal of Criminal Charges

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July 11th, 2013 in Evidence

The New Mexico Court of Appeals case of State v. Redd involves an important criminal law issue concerning the loss or destruction of evidence and a district court‘s abuse of discretion.

In this case, the Court had to determine whether certain requirements to dismiss the defendant‘s case had been met as a result of the State‘s loss of evidence. In short, the Court of Appeals had to decide whether the district court abused its discretion when it found that the defendant had satisfied a 3-prong test for dismissal.

Ultimately, the Court found that the 3 prong test had not been met. Specifically, the Court determined that loss of a pre-trial interview tape that omits statements made during later interviews and at grand jury was not in this case prejudicial to the defendant and therefore could not form the basis for dismissal.

The case began when the defendant was charged with three counts of criminal sexual penetration of a minor (CSPM), one count of criminal sexual contact of a minor (CSCM), two counts of intentional child abuse, and one count of false imprisonment.

The investigator at the scene recorded an interview with the victim, who at that point only alleged oral penetration, according to the investigator. Later during a grand jury testimony, and thus before trial, the victim also alleged that the defendant had attempted or completed anal penetration. This second allegation created the basis for two of the CSPM counts and for both child abuse counts.

Due to a computer error, the State lost the majority of that interview. Arguing that the interview would impeach the Victim‘s subsequent Grand Jury testimony, the Defendant filed a motion to dismiss when the interview material could not be recovered. The district court granted the Defendant‘s motion to dismiss.

The Court of Appeals first determined the standard of review, making clear that it reviews the district court‘s remedy for lost or destroyed evidence for an abuse of discretion. This means that the Court of Appeals will only overturn the district court‘s holding when it is “clearly against the logic and effect of the facts and circumstances of the case.” In other words, the Court of Appeals approaches the case under an assumption in favor of the district court.

The Court next explained that its analysis would rely on a previous case that established a 3-prong test for cases in which evidence is lost or destroyed:

  1. whether the state breached a duty or intentionally deprived the defendant of evidence,
  2. whether the lost or destroyed evidence (the initial interview) is material to the defendant‘s defense, and
  3. whether the defendant suffered prejudice as a result of the lost or destroyed evidence.

All three prongs of the test must be met for dismissal of the charges.

Somewhat surprisingly, the State conceded that the first prong of the test was met. As such it was not at issue. However, the second two prongs were disputed.

In terms of the second prong, the Defendant argued that the interview was “material” to his defense since it showed an inconsistency between the Victim‘s initial statement and a subsequent grand jury statement, which calls the Victim‘s credibility into question.

The Court reasoned that evidence is “material” when there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Court held that the interview material was material to the defense.

The Court then moved onto the third prong of the test. In determining whether the Defendant suffered prejudice because of the loss of the interview tape, the Court had to determine “the importance of the missing evidence to the defendant and the strength of the other evidence of the defendant‘s guilt.”

The Court looked to a previous case with similar circumstances in which it held that an initial interview was “important to the defendant, but not so important as to deprive the defendant of a fair trial.” The Court reasoned that in this case, the Defendant had other means to point out the inconsistencies between the initial interview and the victim‘s subsequent statements.

Additionally, a jury instruction explaining the circumstances of the lost recording could have corrected the harm of any prejudice the Defendant suffered as a result of the missing interview. And finally, the Court reasoned that the lost interview wouldn‘t materially affect a determination of the Defendant‘s guilt or innocence.

As a result, the Court held that the lost interview did not lead the Defendant to suffer prejudice. In other words, the third prong of the test hadn‘t been met. Therefore, the district court abused its discretion when it dismissed the charges against the Defendant.

It should be kept in mind that the outcome of the Court of Appeals decision was highly fact specific. There are cases where all 3 prongs are met and loss or destruction of evidence remains a very important line of defense of criminal charges.

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Related Reading:
Suppression of Evidence for Violation of Criminal Discovery Rules
Defendant‘s Rights to Present Evidence at Grand Jury Extremely Limited

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