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By Al Menaster (my dear and brilliant friend and colleague)
We’ve rarely had much success making Trombetta and Youngblood motions for police destruction of evidence. The rules are just too tough:
Thus, there is a distinction between Trombetta’s [467 U.S. 479] “exculpatory value that was apparent” criteria and the standard set forth in Youngblood [488 U.S. 51] for “potentially useful” evidence. If the higher standard of apparent exculpatory value is met, the motion is granted in the defendant’s favor. But if the best that can be said of the evidence is that it was “potentially useful,” the defendant must also establish bad faith on the part of the police or prosecution. (People v. Alvarez (2014) 229 Cal.App.4th 761, 773; citations omitted.)
As limited as the rules are governing when due process is violated for destruction of evidence, cases have said that there is no due process violation for the failure of the police to collect evidence in the first place. For example, “Generally, due process does not require the police to collect particular items of evidence.” (People v. Montes (2014) 58 Cal.4th 809, 837; citations omitted.) No California case said that failure to collect or gather evidence violated due process. Until now.
The new case is People v. Fultz (2021) 69 Cal.App.5th 395; C088566, issued September 27, 2021. The Court of Appeal says, “Combined with the prosecution’s previous act of bad faith, the government’s conduct of muting the audio to Philbrook’s and Devencenzi’s interviews rose to a due process violation. It is the level of bad faith that convinces us a violation occurred, i.e., this is a case the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” So the police conduct showed that the evidence “could” have exonerated the defendant, and that conduct establishes bad faith in “muting” the audio, an act that didn’t destroy evidence, but failed to collect it. The police officers knew that recording interviews of their snitches would provide a treasure trove for the defense, so they acted in bad faith by intentionally failing to record.
Our challenge is to take this pebble and make mountains out of it. The police failed to take the video surveillance? Interview witnesses? Look for witnesses? You’re only limited by your imagination. Identify what the police failed to do, and fit it into this case; they knew (or you get them to admit) that whatever they didn’t do could exonerate your client, so that conduct establishes bad faith and thus a violation of due process.