Chapter 3 - § 3.8 • DISMISSAL BASED ON LOSS OF EVIDENCE

• Jurisdiction: Colorado

§ 3.8 • DISMISSAL BASED ON LOSS OF EVIDENCE

§ 3.8.1—Loss of Evidence Generally

Destruction or loss of evidence by the police or prosecution may render it more difficult for a defendant to defend against the charges. In determining whether the loss of evidence justifies dismissal of charges, some other sanction, or no sanction at all, courts consider the exculpatory value of the evidence, the good or bad faith of the prosecution, and the availability of remedies for the harm caused by the loss or destruction of evidence.

"[T]he 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." Brady v. Maryland, 373 U.S. 83, 87 (1963). The U.S. Supreme Court has also held that "Brady material" must be disclosed even in the absence of a specific defense request for the material. United States v. Agurs, 427 U.S. 97 (1976).

The Court has clarified the reach of Brady by holding, in California v. Trombetta, 467 U.S. 479 (1984), that "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means" before it falls within the Brady rule. Id. at 489. The Colorado Supreme Court has adopted this analysis. People v. Enriquez, 763 P.2d 1033 (Colo. 1988). Enriquez requires a court to find that "(1) the evidence was suppressed or destroyed by the prosecution; (2) the evidence possessed an exculpatory value that was apparent before it was destroyed; and (3) the defendant was unable to obtain comparable evidence by other reasonably available means" before finding a constitutional violation. Id. at 1036. This three-prong test was re-affirmed in People v. Baca, 109 P.3d 1005, 1008 (Colo. App. 2004).

The analysis is different if there is no indication of bad faith on the part of the prosecution. Arizona v. Youngblood, 488 U.S. 51, 58 (1988), held that, in the absence of bad faith, "failure to preserve potentially useful evidence does not constitute a denial of due process of law."

United States v. Agurs, 427 U.S. 97 (1976), rejected the notion that a "prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel." Id. at 111. However, Crim. P. 16 imposes discovery obligations on the prosecution that are above and beyond the constitutional obligation. Discovery issues are addressed in § 1.9.

§ 3.8.2—Loss of Breath or Blood Sample

C.R.S. § 42-4-1301(6)(c) provides: "The department of public health and environment may, by rule, determine that, because of the reliability of the results from certain devices, the collection or preservation of a delayed breath alcohol specimen is not required." In 2007, the Colorado Department of Health eliminated the requirement to preserve a sample from an evidential test of breath for alcohol. See 5 C.C.R. 1005-2, Part 4. Collection and preservation of a second blood sample is still required. See 5 C.C.R. 1005-2, Part 6 (effective Feb. 1, 2013). Generally speaking, in the absence of bad faith, the loss of a second sample of a defendant's breath or blood is not grounds for dismissal or other sanctions.

It is important at the outset to remember a couple of basic facts: a failure to preserve a second sample does not mean that the test of the first sample is inaccurate. See Havens v. Charnes, 738 P.2d 1202 (Colo. App. 1987) (failure to retain the integrity of the second sample does not affect the reliability of the first test conducted). Suppression of test results due to a failure to preserve a second sample cannot be premised solely on reliability. Secondly, the state generally has no duty to offer or collect any chemical test in a DUI prosecution. People v. Culp, 537 P.2d 746 (Colo. 1975) (despite the implied consent law, there is no due process duty to offer a chemical test to a defendant). Obviously, DUI prosecutions occurred for decades before such tests even existed. Generally, the state has no duty to collect inculpatory evidence. It is only once the state has collected evidence that any duty arises to preserve constitutionally material evidence.

California v. Trombetta, 467 U.S. 479 (1984), arose out of a drunk-driving prosecution in which the prosecution introduced breath test results, but had failed to preserve the breath samples used in the test. The U.S. Supreme Court held that there is no federal constitutional requirement that the prosecution preserve a sample of breath for re-testing by the defense. The Court noted that the officers were acting in good faith and in accord with their normal practice, that there was a slim chance that a saved sample would have produced exculpatory evidence, and that the defendant had alternative methods of showing the jury the unreliability of the state's breath test result.

The Colorado Supreme Court adopted the general analysis of Trombetta in People v. Greathouse, 742 P.2d 334 (Colo. 1987), a case involving the loss of blood samples in a murder prosecution. The court reached the same conclusion as to the preservation of a second sample of a defendant's blood in People v. Humes, 762 P.2d 665 (Colo. 1988). See also People v. Acosta, 860 P.2d 1376 (Colo. App. 1993). Humes ...