Old blood, bad blood, and Youngblood: due process, lost evidence, and the limits of bad faith.

• Author: Bay, Norman C.

TABLE OF CONTENTS INTRODUCTION I. A DISCUSSION OF ARIZONA V. YOUNGBLOOD A. Background B. The Supreme Court's Decision C. Youngblood's Significance 1. Competing Visions of Due Process 2. Youngblood's Vitality D. A Postscript: The Rest of the Story II. A CRITICAL RE-EXAMINATION OF YOUNGBLOOD A. New Science B. Legislative Reform C. State Judicial Disapproval D. Doctrinal Incoherence 1. The Meaning of Bad Faith 2. Missing Evidence Instruction 3. A More Onerous Test 4. An Unclear Remedy III. IN DEFENSE OF YOUNGBLOOD IV. RESOLUTION: APPLICATION OF THE CASEY FACTORS A. Factual Change B. Legal Change C. Unworkability D. Detrimental Reliance E. Court's Legitimacy CONCLUSION INTRODUCTION

One of the most remarkable cases in the annals of constitutional criminal procedure is Arizona v. Youngblood. (1) Absent a showing of bad faith, the Due Process Clause is not violated when the police lose or destroy potentially exculpatory physical evidence. (2) Youngblood is a seminal case on the law of lost evidence and has critical implications in cases involving unexamined DNA samples. The loss of such evidence, even though it may preclude a claim of actual innocence, cannot result in a due process violation unless the accused shows that the police acted in bad faith. This is so despite the fact that forensic DNA typing has exonerated more than 200 individuals, all of whom had been convicted of serious crimes (including sexual assault and homicide), and some of whom had been sentenced to death. (3)

Youngblood has long been controversial. (4) Now, two decades after it was decided, it must be critically re-examined. Ironically, the rule of law established by the case was founded upon the conviction of an innocent man. (5) Youngblood was convicted of abducting and sexually assaulting a child in 1985. Fifteen years later, in 2000, he was exonerated through DNA testing that was unavailable at the time of his trial. (6) Biological material that could not be tested effectively under the relatively primitive forensic science of the 1980s nevertheless held the promise of future exculpation. Moreover, the DNA evidence that exonerated Youngblood led to the 2002 conviction of the actual perpetrator, an individual with two prior convictions for child sex abuse. (7)

Youngblood can be examined through several different prisms. Certainly, it can be viewed as part of a broader, historical shift from the Warren Court's interpretation of criminal procedure to that of the Rehnquist Court. (8) Alternatively, to the extent one accepts the notion that criminal procedure has two normative models--due process and crime control--Youngblood can be regarded as furthering the purposes of crime control. (9) Youngblood can also be seen as having been influenced by contemporaneous developments in other areas of the law, including limits on the Fourth Amendment's exclusionary rule (10) and the reach of the Due Process Clause in constitutional tort claims. (11)

This Article, however, examines Youngblood's conception of procedural due process. Youngblood represents the triumph of one vision of due process over another in criminal cases involving the constitutional right of access to evidence. (12) Prior to Youngblood, the Supreme Court had taken into account two different, sometimes conflicting interests served by due process: adjudicative fairness to the accused and an instrumental emphasis on deterring official misconduct. (13) Adjudicative fairness focuses on the individual and the individual's liberty interest; this vision of due process manifests itself in an examination of the materiality of evidence or prejudice to the accused. The instrumental vision of due process is more limited in its approach; the focus is on the state, not the individual. Due process imposes a restraint on the state, the point of which is to punish the state for official misconduct or bad faith. In emphasizing instrumentalism to the exclusion of adjudicative fairness, Youngblood broke with precedent and adopted an unduly narrow view of due process.

In critiquing that narrow view of due process, this Article studies the twenty years of legal and factual developments that have occurred since Youngblood was decided. The very facts of Youngblood reveal the flaws inherent in its conception of due process by illustrating how a faulty doctrine can lead to conviction of the innocent. Four powerful currents have eroded Youngblood's bad faith standard: scientific advances, legislative reform, state judicial disapproval, and doctrinal incoherence.

When Youngblood was charged in 1983, forensic DNA typing did not exist. This science was in its infancy when the Supreme Court decided the case in 1988. (14) Since that time, courts have routinely accepted DNA evidence, and DNA testing has become more sensitive, sophisticated, cheaper, and quicker.

This advance in forensic science, in turn, has sparked legislative reform. In recognition of the power of DNA testing to exonerate the accused, forty-three states, the District of Columbia, and the federal government have passed innocence protection acts. (15) These laws vary widely in scope and coverage, but many require the preservation of DNA evidence. (16) Ten state supreme courts have also rejected the bad faith standard in interpreting due process as a matter of state constitutional law. (17) In all, a majority of states have either passed innocence protection acts requiring the preservation of DNA evidence or rejected Youngblood's bad faith standard as a matter of state constitutional law.

Incoherence characterizes post-Youngblood case law decided in state and lower federal courts. There are significant disparities in the ways in which courts have interpreted fundamental aspects of Youngblood, including the meaning of "bad faith," whether the lost evidence must be potentially exculpatory or possess apparent exculpatory value to establish a due process violation, and what remedy is available in the event of a violation. (18) Regardless of the approach used, the bad faith standard imposes an almost insurmountable burden upon the accused. Over the past two decades, only a handful of courts have found due process violations. (19)

Taken as a whole, those developments have so undermined Youngblood's rationale and legitimacy that it no longer merits stare decisis effect. In place of the bad faith standard, a better, more balanced approach would take into account the overriding concern of due process: adjudicative fairness. Thus, a court would assess both police culpability and the materiality of the lost evidence or prejudice suffered by the accused.

This Article proceeds in four parts. Part I provides an overview of Youngblood: the facts of the case, the deliberations and decision of the Supreme Court, a discussion of the case's significance, and a postscript on what happened to Youngblood after the decision. This part provides a conceptual framework for examining Supreme Court precedent involving the constitutional right of access to evidence. Youngblood reflects the tension between two competing visions of procedural due process, with one vision of due process prevailing to the exclusion of another. Part II critiques Youngblood. This part discusses developments in DNA testing since Youngblood was decided, decisions of state supreme courts that have rejected the bad faith standard as a matter of state constitutional law, the passage of innocence protection acts at the state and federal level, and the incoherence in the law that has resulted as courts have applied Youngblood. Part III considers arguments in favor of Youngblood. Part IV resolves the arguments for and against Youngblood by concluding that, on balance, it should be overturned. In some cases, even in the absence of bad faith by the police, the destruction of physical evidence ought to result in a due process violation.

1. A DISCUSSION OF ARIZONA V. YOUNGBLOOD

   In light of Youngblood's importance in this area of constitutional criminal procedure, it is worth taking the time to unpack the case. Part I.A outlines the facts of the case. Part I.B describes what happened at the Supreme Court, including the oral argument, the Court's post-argument conference, and the resulting majority opinion, separate concurrence, and dissent. Here, the papers of Justice Harry A. Blackmun at the Manuscript Division of the Library of Congress provide valuable insights into the views of the Justices. (20) Part I.C explores Youngblood's significance and conceptualizes the due process interests at issue in cases involving the constitutional right of access to evidence. Part I.D provides a postscript on what happened to Youngblood after the Supreme Court decided his case.

   1. Background

      On October 29, 1983, David L., a 10-year-old boy, attended church with his mother. (21) After leaving the church around 9:30 p.m., he went to a carnival behind the church. (22) There, he was abducted by a middle-aged black man of medium height and weight. (23) David, who was described as a "very observant youngster," later testified that his assailant was named "Damian" or "Carl" and had greasy grey hair, facial hair, no facial scars, and one unusual distinguishing characteristic--a right eye that was almost completely white. (24) The assailant wore brown leather or plastic loafers and drove a white, medium-sized, two-door sedan with a noisy muffler and an inoperable passenger door. (25) The car started with an ordinary ignition key, and country music played on the radio. (26) For the next hour-and-a-half, the assailant molested the child in a secluded area near a ravine and in an "unidentified, sparsely furnished house." (27) Eventually, the assailant returned the boy to the carnival and threatened to kill him if he told anyone. (28)

      David made his way home, and his mother brought him to a hospital. (29) A doctor treated the boy for rectal injuries and used a sexual assault kit to collect evidence of the attack. (30) Among...