Due Process and Unavailable Evidence

• Author: by Captain Alan D. Chute
• Pages: 03

I. INTRODUCTION

In our System of criminal justice, we expect the adversarial process to produce a fair result in a contested criminal trial. The government and the accused have their respective advocates who zealously represent their positions within the bounds of the law, presenting the strenghs of their own positions and exposing the weaknesses of their opponents. The government, beginning with a police investigation and culminating with a court presentation, seeks out, preserves, and places before the fact finder the relevant and admissible evidence it believes will convict the accused. Although the defense LS not obli-gated to present anything to the court, counsel in contested cases should attempt to discover exculpatory evidence that they can present an behalf of their clients. It is possible, however, far the government ta hinder the defense counsel's efforts, elther intentionally or unintentionally, by failing to disclose exculpatory evidence. Further, it is possible for the government to lose OT to destroy evidence, either deliberately or inadvertently, that the defense is or later becomes aware of and believes to be exculpatory. Naturally, the defense will complain when it learns of these developments, but sometimes the courts will provide no remedy.

In the landmark ease of Brady o. Maryland,' the United States Supreme Court held the prosecution responsible for failing to disclose evidence favorable to the accused; and in later eases the Court refined its analysis by extending protection to the accused in some cireumstances and restricting protection in others The Supreme Court did not address the issue of loss or destruction of evidence, however, until

*Csptam, Judge Advocate Generah Corps Presently ssslgned as Senm Defense Counsel, Id Infantry D m s m Formerly asmgned as tnsl c~unsel, defeme e~nnsel, elaimi oEcer. and administrative law attorney, Fo~t k w w Washmgton, 1983.1986.se~edasaSignalCarpsoEc~rfram

1977-1S79.B.S.,~'nitedStatesMdit~Academy.

1977: J D , University of Mmnemota Law School, 1982 Author of Clianl Peou'y Pm-licnl EvppPelionsfoiD~f~"~~

Counsel. The Army Lawyer. March 1986, sf 62.Accompliea Tesfimony nnd Cmdtbility 'Toouehing and Pmsecutarlal Abuse ofdgrernents lo Tea-1 6

Truthfully, 66 Minn L Rev 1169 (19811 Member of the bars af the Stale ai Mmnesata. the United Stater Court of Mllrfary Appeals. and the Umted States Army Covrt of Military Renew This vticle IS baed upon a them svbmltted ID pama1 PBDsfaCfim ai the requirements of the 36th Jvdge Advocate Officer Graduate Course

'373 US 83 (1963)*Id sf 87'See infra notes 22-37 and eccompan)mg text

MILIWRY LAW REVIEW [Tal. 118

1984, when it decided the case of California c Trornbetto In that case, the Court held that the government does not violate the ac-cused's due process rights under the Constitution by losmg or de. stroying exculpatory evidence unless 11 the exculpatory d u e of the evidence was apparent to the government before It rendered the e w denee unavailable, and 21 there is no comparable evidence available to the accused ' Under these circumstances. the prosecution may proceed and the accused may be convicted, even though the defense 18

deprived of evidence that could potentially exonerate the accused

In 1986, the Court of Military Appeals incorporated the Trornbetto ruling into standards of military due prace~s,~but the court went beyond Trornbetta by placing the burden on the accused to shou that the missing evidence fits within the Trombetta standard' In doing so. the Court of Military Appeals did not seem to give full consideration to military rules that provide more discovery and disclosure to the accused than the minimum constitutional requirements that apply to the Supreme Court's review of civilian prosecutions This shortcoming may have occurred, in part. because the tnals in the cam that the Court of Military Appeals reviewed took place pnor to the effective date of the new Manual for Courts-M?artial,6 which departs from the pnor edition by specifically addressing the issue of unavail. able evidence.@ The court's position may also have been influenced by reviewing a case where there was no prejudice to the accused because the trial judge had already granted an appropriate remedy,I0 and by revieaing another case that generated little sympathy for the accused " After the court gained momentum with the issue. it sum-manly affirmed two urinalysis eases where the government destroyed the accused's urine samples, and the court merely cited Trombetta inIts summary dispositions

'467 U S 479 119841Ild at 489BCmfed Stafea, Kern, 22 11 J 49 57 ,C M A 1986,..See id sf 51-52&The new Manual for Courts-hlamial became effectire 'on Augyt 1. 1984. with reaped to all court-martla1 processes taken on and after thsr date Exec Order So 12473 49 Fed Reg 17162 '1964) as amended b, Exec Order Bo 12454, 49 Fed Reg28826 119848. repmird 2" Manual for Courts-Martmailer MCM 19841 The trial in Kern occurred m Ap22 M J at 50 In United Stares Y Carries 22 M J 268of Mllnan Appeals opinion that crted Tiombdlo. the

e< the Manual contained no similar pmvmon

YCM 1984, Rule for Courts-Mamai 70310121 [hereinafter R C >I I The prior @e infm notes 108-09 and accompanying textee tnfia nates 120-21 and ~ccompanging text-nited Statel, Frair 22 M J 355 rC >I A 19551 lsvmmary dirposifmnl United Sfate. 3 Krueger, 22 hl J 210 rC M A 19868 #bummar) disposition'

19871 DUE PROCESS

In the future, when military courts consider cases where the gov-ernment has last or destroyed evidence, they should conclude that the Trambetta rationale should not be applied to all such eases in the military justice system. This article begins by examining the minimum constitutional standards that apply to disclosures of and destruction of evidence. The Supreme Court periodically modifies these standards, and several issues remain uncertain aRer Trornbetta. Next, the article reviews the special standards that apply to the military justice system, standards of military due process that rise above the constitutional minimums. After identifying these standards, and proposing how courts should apply them in cases where evidence is un-available. the article examines the numerou~ remedies available for military courts to safeguard the accused's rights if the courts find that the government has violated standards of military due process. By applying the proper d e s and selecting the appropriate remedies in casea where the government has last or destroyed exculpatory evidence, the military justice system can provide a fair tnal for the accused.

11. CONSTITUTIONAL MINIMUMS A. DISCOVERY OF EXCULPATORY EVIDENCE

1. Constitutmnnl Right to Dtseouery.

In a series afcases, the Supreme Court has established "what might loosely be called the area of constitutionally guaranteed acce8s to ev~denee"'~for criminal defendants. Although some of these rules are now contained in mles of criminal procedure" and ethics codes,ls the development of the constitutional rule8 and the definition of terms are part of an ongoing process. The minimum standards far access to evidence are based on the due process clause of the United States which requires criminal trials to "comport with prevailing notions of fundamental fairness,"" and which requires "that enmmal defendants be afloorded a meaningful opportunity to present a complete defense."'8 Without access to the evidence, it is difficult

"Umted Sfsfed v Vslenzuela-Bernal. 458 US 858, 857 (19821

"See, 08, R C M SOlral(61'bSre, '8, I Standards ai Criminal Justice, The Prosecution Function. Standard ':US Const amend Vlaid Mhtary sacussd also euoy a etsfutnry right to diaeovery ai euldence and wltnesee~ See Uniform Code of Military Justice. art 46, 10 US C 5 846 (19821: rnfm

3-3 11 11980). Model Code of Rofessianal Reaponaibility DR 7-1031B) ,19801

California v Trambelta. 467 U S. 479. 485 11984)

text accampanylng notes 168-200

to imagine how defense counsel could adequately prepare for trial: and without access to exculpatory evidence, counsel's opportunity to present a complete defense is foreclosed.

In Brad? v. Maryland,le the Supreme Court announced a basic constitutional principle for required disclosures to defendants. Bred? was a murder case where the prosecution did not disclose an ae-complice'a statement that the accomplice was the person who actually did the killing, even though the defense had requested such a statement. On appeal, the defendant claimed that, since the accomplice's statement would have been relevant to the issue of an appropriate sentence, the prosecution should have disclosed the statement. The Supreme Court concluded that "the suppression by the praaeeution of evidence favorable to the accused upon request violates due process where the evidence IS material either to guilt or to pumshment, LT-respective of the good faith or bad faith of the The Court sent the ease back to the state courts for a new sentencing proceeding

In L'ntted States u A g ~ r s , ~ ~

the Supreme Court reviewed a case where the prosecution suppressed exculpatory evidence that the trial defense counsel did not specifically request The defendant had been convicted of homicide, and had defended on a theory Of self-defense After trial, the defense alleged that the prosecution was aware of and failed to disclose the victim's criminal record of pleas of guilty to charges of assault and carrying deadly weapons. In allowing the con.victim to stand, the Supreme Court stated that the government does not commit constitutional error in cases where the defense makes only a general request for exculpatory evidence or makea no request at all unless "the omitted evidence creates a reasonable doubt that did not otherwise exist.''z3

2 The Matertolrty Standard.

The outcome of suppress,on-af-evidence cases, and also the outcome of destruction-of.ev,dence cases, often turns on whether the evidence in question is "material" to guilt or to punishment. Cases reviewing the...