Lost evidence

Evidence can get lost or destroyed before trial and thus is unavailable to the defense. It depends on what that evidence is and what remedy there is for the loss. A primary question is what is the importance of the lost evidence for the defense, does it mean the accused can’t get a fair trial, and so what remedy must the judge apply? It also makes a difference when the evidence was lost or destroyed and who lost or destroyed the evidence.

The issue is very important because by the time an accused gets the opportunity to do anything about it, much time has passed. Investigations take months before anyone in the defense counsel team knows that and more months before the issue can be presented to a judge. This is why at Cave & Freeburg we have started sending evidence preservation requests as soon as we get the case.

The Court of Appeals for the Armed Forces has issued significant cases on this issue which should be a starting point for a military defense counsel in evaluating the meaning and consequences of lost or destroyed evidence: Simmermacher and Stellato.

1. Evaluating the lost evidence:

• The judge must assess whether the lost evidence is of “such central importance to an issue that is essential to a fair trial.” This means analyzing if the evidence would have significantly impacted the accused’s ability to defend themselves.
• If the evidence is deemed crucial, the judge further considers if there is “no adequate substitute” for it. This involves examining whether other available evidence or testimony can sufficiently address the issue the lost evidence would have covered.

2. Potential remedies:

• If both criteria are met (essential evidence with no substitute), the judge has several options:
  • Grant a continuance: This allows time to search for or attempt to reconstruct the lost evidence.
  • Other relief: This could include excluding other evidence the prosecution relies on to compensate for the lost evidence, depending on the specific circumstances.
  • Abate the proceedings: This is the most severe remedy, essentially dismissing the case, if the lost evidence is so critical that a fair trial is impossible without it.

3. Government’s responsibility:

• While the government has a duty to preserve evidence relevant to potential criminal proceedings, it isn’t responsible for ensuring its availability after the authorized destruction date if no timely request for access or retention is made.  See above about preservation requests. This has come up in drug cases where the evidence is a urinalsis test and the samples have been destroyed so not available for retesting at the request of the defense.

4. Caveats and complexities:

• The Simmermacher decision emphasizes that these guidelines are not absolute rules but rather depend on the specific facts and circumstances of each case.
• The court also acknowledged that the outcome in Simmermacher might differ in future cases, particularly when:
  • Loss or destruction is intentional or malicious.
  • The lost evidence is unique and irreplaceable.
  • The government’s actions in handling the evidence raise concerns about fairness or due process.
• The Stellato decision shows a different perspective. In that case the prosecutors interviewed a witness and was shown evidence that might exonerate the accused. Rather than take that evidence, the prosecutor let the witness keep it. Later, the prosecutor allowed the witness to cherry pick and send some evidence to him. Through aggressive discovery the military defense counsel got a piece of evidence from a law enforcement officer. When that was tested for DNA–voila, it was exculpatory. Thus, the obligation of the prosecutor to preserve that evidence was clear and prosecutors were sent a message to be ultra careful about getting, keeping, and producing evidence that favors an accused.

Remember, this is a simplified overview of a complex legal concept. Consulting the qualified legal professionals at Cave & Freeburg, military defense counsel, for specific guidance on your situation is always recommended. You can find us at www.court-martial.com.