Spoliation Charge Memo
Question Presented: What does it take to get a jury charge for spoliation when police destroy evidence?
Brief Answer: For a court to submit a spoliation instruction to the jury, the D has the burden of showing
that the State destroyed or lost the evidence in bad faith and that the evidence possessed exculpatory
value that was apparent before the evidence was destroyed.
Rule: Spoliation of evidence concerns the loss or destruction of evidence. When the spoliation concerns
potentially useful evidence, the defendant bears the burden of establishing that the State lost or
destroyed the evidence in bad faith. The duty to preserve evidence is limited to evidence that possesses
an exculpatory value that was apparent before the evidence was destroyed. Torres v. State, 371 S.W.3d
317, 319 (Tex.App.-Houston [1st Dist.] 2012, pet. ref’d). The “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.” California v.
Trombetta 467 U.S. 479, 489 (1984).
Case Law:
Ex parte Napper, 322 S.W.3d 202, 229 (Tex.Crim.App.2010) à Here, a spoliation charge was DENIED
because D could not prove that the Lab tech acted in bad faith by destroying DNA samples. The court
cited the Supreme Court’s holding in California v. Trombetta that “the presence or absence of bad faith
by the police for purposes of the Due Process clause must necessarily turn on the police’s knowledge of
the exculpatory value of the evidence at the time it was lost or destroyed.” In Trombetta, the Court
considered three reasons in rejecting D’s claim – 1) the authorities did not destroy the samples in a
calculated effort to circumvent the disclosure requirements established by Brady 2) the evidence did not
have exculpatory value that was apparent before it was destroyed 3) the evidence was not of such
nature that the D would have been unable to obtain comparable evidence by other reasonably available
means.
But see:
Willis v. State, WL 1957031 (Tex. R. App – Houston [14th Dist.] 2010) à (Prostitution Case). Appeal
concerns audio and video recordings of the incident at issue. The interaction between the officer and D
was undisputedly recorded by audio and video tape, but the PD was unable to locate the recordings &
the State did not produce them. Regarding the efforts to produce the recordings, the officer’s testified
that “they must be placed into evidence.” The recordings in question were never found in evidence
despite multiple attempts by the State to try and find them. On the day of trial, the Officer was
informed the recordings were lost in Hurricane Ike. The trial court did not submit the D’s drafted jury
instruction, but did submit the following:
“During the course of the trial, you have heard that certain evidence was lost or disposed of.
When evidence is lost or disposed of, we call it spoliation. Spoliation of evidence is the
unexplained destruction or loss of relevant evidence that gives rise to inference [sic] that the
thing which has been lost or disposed of would have been unfavorable to the position of the
party or agency responsible for the spoliation.
If you find that a person or agency acting on behalf of the State lost or disposed of the video or
audio recording, whether deliberately or negligently, you are permitted to infer that your
consideration of the evidence which was lost or disposed of would have been or [sic]
unfavorable to the State’s position in this case. You may consider whether the individual or
agency who lost or disposed of the evidence knew the evidence might be supporting [sic] of the
opposing party.”
Torres v. State, 371 S.W.3d 317, 319 (Tex.App.-Houston [1st Dist.] 2012, pet. ref’d).
