Trombetta/Youngblood Limitations on Brady Violations

for Law Enforcement’s Spoilation of Exculpatory Evidence. 

      What happens when it is hard direct physical evidence that is potentially exculpatory to the defendant, and the government has destroyed that evidence, and when does it amount to a due process violation?   In a case directly relevant to DUI defense, California v. Trombetta (1984) 467 U.S. 479, the Court reviewed an issue of a defendant’s complaint that the breath machine used in testing him for BAC (the Omicron Intoxilyzer),  The police did not save his breath sample for later retesting by the defense, even though there was a device that could capture a breath sample for later testing (an “Intoximeter Field Crimper-Indium Tube Encapsulation Kit”—the only such device approved by the state’s Department of Health).  The Court found that the police officers were not acting in bad faith in failing to preserve the breath samples, holding that “Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, 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. Id at 488-489. 

      After Trombetta the Court dealt with a similar issue that went to the good or bad faith of the police. Arizona v. Youngblood (1988) 488 U.S. 51. In Youngblood a child was sexually assaulted and the police seized the victim’s clothing, but failed to refrigerate the clothes. This failure to refrigerate the clothing precluded a later attempt to test for bodily fluids. This testing could have confirmed the identity of the assailant. The Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 57. 

      As the result of Trombetta and Youngblood, in order for law enforcement’s destruction of exculpatory or potentially exculpatory evidence, it must also be material and possess an exculpatory nature before the destruction occurred, it must not be available through any other reasonable means, and the officers must have been acting in bad faith in destroying the evidence.  The lesson for DUI defense counsel is to request a separate and independent breathalyzer test early on and cite Trombetta. 

  State Court’s have applied Trombetta/Youngblood to DUI cases where the defendants has made a Brady violation on appeal. In the California c case People v. Superior Court (Maria)  (1992) 11 Cal.App.4th 134, the court found that the law enforcement officers did not act in bad faith because they offered the defendant a breath test or blood test and that they were merely negligent in failing to maintain an adequate supply of urine specimen bottles at the jail or to resort to alternative sources on the occasion in question. Id. at 141.   

      In North Dakota, the Supreme Court has held that failure to disclose certain requested breath records did not amount to a Brady violation as the defendant did not demonstrate that the evidence would have been favorable to him. City of Grand Forks (N.D. 2003) 658 N.W.2d 731, 734.  In Georgia, the court in Shoemake v. State (Ga. App. 2004) 266 Ga. App. 342, addressed the government’s destruction of a blood sample after keeping the sample for more than a year. The court found that the state’s practice of destroying blood samples was nothing more than a routine practice of purging samples and was not done in bad faith and not a violation of Youngblood. Id. at 343. 

      As mentioned infra, in California Proposition 115 had limited the defense to obtain discovery before the preliminary hearing, and the use of this hearing to obtain discovery. Less Reliable Preliminary Hearings and Plea Bargaining in Criminal Cases in California Discovery Before and After Proposition 115, supra, 48 Am. U. L. Rev. at 509-510.  Most jurisdictions also require a demand for discovery before a motion for sanctions may be made.

See Idaho: State v. Maynard (2004 Idaho) 139 Idaho 876, 881;  Montana, City of Missoula v. Lesko (2003) 73 P.3d 166, 167; Florida, State v. Eaton, 868 So.2d.650 (2004) (citing Livigni v. State, 725 So.2d 1150, 1151 (Florida 2d DCA 1998). Some states require the production of evidence by statute.³  

      The DUI defense practitioner should also look and listen to the prosecutor and let them say what their case is all about.  Discovery may not be pursued as aggressively if the DUI defense practitioner knows that the case will settle. If settling is not an issue, making a plethora of discovery motions may signal that you don’t have much of a defense.  It can also trigger reciprocal discovery requests in some states.⁴ If the prosecutor is new and on probation they also may be looking to settle cases to obtain convictions to establish a won-lost record amenable to their bosses at the District Attorney’s office, and may be more willing to settle..