Chapter 57: Gathering, Preserving, and Authenticating Evidence
Duty to Gather Evidence
Although a few cases hint at a possible duty to gather evidence in limited situations,[1] the general rule is there is no such duty.[2]
Duty to Preserve Evidence
Officers must preserve either of the following:
"Significant" evidence: Evidence must be preserved when (1) it could be expected to play a significant role in the defense, (2) its exculpatory value was apparent before destruction, and (3) the defendant could not obtain comparable evidence by other reasonably available means.[3]
"Potentially useful" evidence: Failure to preserve evidence that is only potentially useful violates due process only if officers acted in “bad faith,” akin to gross negligence.[4] There is no duty to save everything that might conceivably matter in a case.[5]
Bad faith: Destruction/loss done with an improper motive, e.g., calculated to keep it from the defense, can establish a violation.[6]
Compare: Standard destruction procedure: Routine or policy-based destruction tends to negate bad faith.[7]
Consequences of breach
Federal rules apply: Under Prop 8, California applies the federal standard. The older People v. Hitch rule (duty to preserve any potentially helpful evidence) no longer controls. Under Trombetta, the duty applies only when exculpatory value was apparent before destruction.[8]
Possible sanctions: Remedies can include dismissal or an instruction allowing jurors to infer the destroyed evidence would have favored the defense.[9]
Authenticating Evidence
Physical evidence must be shown to be what the proponent claims. If not, it may be excluded as irrelevant or given little weight. Three common methods:
Unique or distinctive itemsIf the item is unique/distinctive and stable, a witness’s in-court identification can suffice (e.g., a victim identifying her clothing).[10]
Chain of custodyFor fungible or easily altered items (e.g., narcotics), identify each custodian from seizure to courtroom to establish a reasonable assurance of unchanged condition.[11]
Video recordingsAdequate if there’s no reason to believe the recording differs from what actually happened.[12]
Google Earth imagesNot hearsay, but must be authenticated—either by a knowledgeable Google Earth programmer or frequent, relying user, or via judicial notice of the program’s reliability.[13]
Notes
[1] CAL: In re Michael L. (1985)
39 C3 81, 86; P v. Hogan (1982) 31 C3 815, 851.
[2] CAL: P v. Hogan (1982) 31 C3
815, 851 ["The police cannot be expected to "gather up everything
which might eventually prove useful to the defense."];
P v. Kelly (1984} 158 CA3 1085, 1101-1102 ["The police have
no obligation to collect evidence for the defense; their duty is
to preserve existing material evidence on the issue of the
accused's guilt or innocence."]; P v. Callen (1987)
194 CA3 558, 561 ["The law does not impose upon law enforcement
agencies the requirement that they take the initiative, or even
any affirmative action, in procuring evidence deemed necessary to
the defense of an accused."]; P v. Harris (1985) 165
CA3 324, 329 ["To date there is no authority for the proposition
that sanctions should be imposed for a failure to
gather evidence as opposed to a failure to preserve
evidence."]; P v. Wimberly (1992) 5 CA4 773, 791;
P v. Perez (1979) 24 C3 133, 145; P v.
McNeill (1980) 112 CA3 330, 338.
[3] QUOTES FROM:
California v. Trombetta (1984) 467 US 479, 488-89.
USSC: Illinois v. Fisher (2004) 540 US
544, 549 [evidence was "potentially useful," not "materially
exculpatory"]. CAL: P v. Fultz (2021) 69 CA5 395,
423 ["Under Trombetta, law enforcement agencies must preserve evidence only if the
evidence possesses exculpatory value that was apparent before it
was destroyed and if the evidence is of a type not obtainable by
other reasonably available means."];P v. Flores (2020) 9 C5
371, 394 ["Law enforcement agents have a constitutional duty to
preserve evidence, but that duty is limited to evidence that might
be expected to play a significant role in the suspect's
defense."]; City of Los Angeles v. Superior Court (2002) 29
C4 1, 8; P v. Alvarez (2014) 229 CA4 761, 772; P v.
Hines (1997) 15 C4 997, 1042 ["Here, the videotape's erased
portion pertaining to the arguments among the searching police
officers did not possess an exculpatory value that was apparent
before the evidence was destroyed."]; P v.
Catlin (2001) 26 C4 81, 159 ["We do not believe that this
evidence had any significant exculpatory value that would have
been evident before the evidence was lost or destroyed."].
[4] USSC:
Arizona v. Youngblood (1988) 488 US 51, 58 ["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"]; Illinois
v. Fisher (2004) 540 US 544, 549 [evidence was
"potentially useful," not "materially exculpatory"]. CAL: P v. Alvarez (2014) 229 CA4 761, 773 ["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."];
City of Los Angeles v. Superior Court (2002) 29 C4 1, 8 ["a
different standard applies when the prosecution fails to retain
evidence that is potentially useful to the defense. In the latter
situation, there is no due process violation unless the accused
can show bad faith by the government"]; P v.
Schmeck (2005) 37 C4 240, 283-84 ["a constitutional
violation is not established unless the authorities acted in bad
faith in failing to preserve potentially useful evidence"];
P v. Catlin (2001) 26 C4 81, 160 [evidence had "no
significant exculpatory value"]; P v. Farnam (2002)
28 C4 107, 166 ["Here, the crux of his complaint is that the state
failed to properly preserve evidentiary material of which no more
can be said than that it could have been subjected to tests, the
results of which might have exonerated the defendant."].
BAD FAITH: P v. Alvarez (2014) 229 CA4 761, 777 [bad
faith established because officers failed to check surveillance
tape of crime scene even though they had been requested to do so
by a defendant and his attorney].
[5] QUOTE FROM:
Arizona v. Youngblood (1988) 488 US 51, 58. Also see
Killian v. US (1961) 368 US 231, 242 ["almost everything is
evidence of something, but that does not mean that nothing can
ever safely be destroyed"].
[6] USSC: California v.
Trombetta (1984) 467 US 479, 488-89; Illinois
v. Fisher (2004) 540 US 544, 548 ["police testing
indicated that the chemical makeup of the substance inculpated,
not exculpated, respondent"]; Illinois v.
Fisher (2004) 540 US 544, 549 [evidence was "potentially
useful," not "materially exculpatory"]; Arizona v.
Youngblood (1988) 488 US 51, 56, fn.; Killian
v. US (1961) 368 US 231, 242 ["almost everything is
evidence of something, but that does not mean that nothing can
ever safely be destroyed"]. CAL: P v. Flores (2020)
9 C5 371, 394 ["The assessment of bad faith must necessarily turn
on the police's knowledge of the exculpatory value of the evidence
at the time it was lost or destroyed."]; P v.
Schmeck (2005) 37 C4 240, 283-84 [no
Trombetta violation because the destroyed bloodstain
evidence was inculpatory, not exculpatory]; P v.
Catlin (2001) 26 C4 81, 160 [evidence had "no significant
exculpatory value"]; P v. Hines (1997) 15 C4 997,
1042; P v. Farnam (2002) 28 C4 107, 166.
COMPARE: P v. Alvarez (2014) 229 CA4 761, 777 [bad
faith established because officers failed to check surveillance
tape of crime scene even though they had been requested to do so
by a defendant and his attorney];
US v. Zaragoza-Moreira (9C 2015) 780 F3 971, 980-81 [bad
faith because AUSA failed to retain a highly relevant videotape
although retention had been requested by defendant's attorney].
NOTE: Pursuant to Proposition 8, courts will apply federal
rules in determining whether evidence may be suppressed on grounds
of failure to preserve. This means California courts no longer
follow the rule of P v. Hitch (1974) 12 C3 641, 649
that a duty to preserve evidence applies to all evidence that
could have benefited the suspect. Instead, as noted, under the
federal Trombetta rule, the duty to preserve applies only
when the evidence possessed an exculpatory value that was apparent
before it was destroyed. NOTE: A possible sanction
is a jury instruction that the jurors may infer that the evidence
which was destroyed would have been favorable to the defendant.
P v. Zamora (1980) 28 C3 88; P v.
Martinez (1989) 207 CA3 1204, 1216. ALSO SEE: Scott v. Meese (1985) 174 CA3 249,
258 ["When substantial material evidence has been lost or
destroyed sanctions may be appropriate, but the imposition and
mode of sanctions depend upon the circumstances attending the loss
or destruction of evidence. Consequently, courts have a large
measure of discretion in determining the appropriate sanction that
should be imposed due to the loss or destruction of discoverable
records or evidence."].
[7] USSC: Illinois v.
Fisher (2004) 540 US 544, 548 ["it is undisputed that
police acted in good faith and in accord with their normal
practice"]; Arizona v. Youngblood (1988) 488 US 51, 58
[officers failed to refrigerate and test the clothing of a sexual
assault victim under circumstances showing, at worst, negligence
with "no suggestion of bad faith"]; Killian v.
US (1961) 368 US 231, 242;
California v. Trombetta (1984) 467 US 479 [officers
routinely destroyed breath samples taken from DUI suspects.
CAL: P v. Duff (2022) 58 C4 527, 549 ["If the
evidence's exculpatory value is apparent and no comparable
evidence is reasonably available, due process precludes the state
from destroying it. If, however, no more can be said of the
evidence than that it could have been subjected to tests, the
results of which might have exonerated the defendant, the
proscriptions of the federal Constitution are narrower; 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," citations omitted].
P v. Martinez (1989) 207 CA3 1204, 1218 [there was
no showing that police acted contrary to accepted procedures];
Scott v. Meese (1985) 174 CA3 249, 258 [a recording of a
DUI suspect's refusal to take a chemical test was accidentally
erased]; P v. Coles (2005) 134 CA4 1049, 1054;
P v. Garcia (1986) 183 CA3 335, 348-50;
P v. Angeles (1985) 172 CA3 1203, 1211-15;
P v. Savage (1982) 129 CA3 1; 81 Ops.Atty.Gen 397 (1998).
[8] CAL: P v. Johnson (1989) 47
C3 1194, 1233-34.
[9] CAL: P v. Alvarez (2014) 229
CA4 761, 778-79 [dismissal]; P v. Zamora (1980) 28
C3 88 [jury instruction]. ALSO SEE: Scott v.
Meese (1985) 174 CA3 249, 258 ["When substantial material
evidence has been lost or destroyed sanctions may be appropriate,
but the imposition and mode of sanctions depend upon the
circumstances attending the loss or destruction of evidence.
Consequently, courts have a large measure of discretion in
determining the appropriate sanction that should be imposed due to
the loss or destruction of discoverable records or evidence."].
[10] CAL: P v.
Lewis (1987) 191 CA3 1288, 1298. OTHER:
US v. Cardenas (10C 1989) 864 F2 1528, 1531;
US v. Clonts (10C 1992) 966 F2 1366, 1368.
[11] CAL: P v.
Catlin (2001) 26 C4 81, 134; P v.
Riser (1956) 47 C2 566, 580-81 ["The requirement of
reasonable certainty is not met when some vital link in the chain
of possession if not accounted for, because then it is as likely
as not that the evidence analyzed was not the evidence originally
received."]; P v. Diaz (1992) 3 C4 495, 559;
P v. Williams (1989) 48 C3 1112, 1134; P v.
Lucas (1995) 12 C4 415, 444; P v.
Lozano (1976) 57 CA3 490, 495; P v.
Lewis (1987) 191 CA3 1288, 1298; County of Sonoma
v. Grant W. (1986) 187 CA3 1439, 1448-50.
[12] USSC: Scott v.
Harris (2007) 550 US 372, 378.
[13] 9th CIR:
US v. Lizarraga-Tirado (9C 2015) 789 F3 1107, 1110.