488 U.S. 51 (1988)
On October 29, 1983, David L., a 10-year-old boy, attended a church service with his mother in Tucson, Arizona.1 After he left the service at about 9:30 p.m., the boy went to a carnival behind the church, where he was abducted by a middle-aged man of medium height and weight.2
The assailant drove the boy to a secluded area near a ravine and molested him.3 He then took the boy to an unidentified, sparsely furnished house where he sodomized the boy four times.4 Afterwards, the assailant tied the boy up while he went outside to start his car.5 Once the assailant started the car, albeit with some difficulty, he returned to the house and again sodomized the boy.6 The assailant then sent the boy to the bathroom to wash up before he returned him to the carnival.7 The entire ordeal lasted about 1½ hours.8
After the boy made his way home, his mother took him to Kino Hospital.9 At the hospital, a physician treated the boy for rectal injuries.10 The physician also used a sexual assault kit to collect evidence of the attack.11 Here, the physician used the swab to collect samples from the boy’s rectum and mouth.12 He then made a microscopic slide of the samples.13 The doctor also obtained samples of the boy’s saliva, blood, and hair.14 At the hospital, the police also collected the boy’s underwear and T-shirt.15 This clothing was not refrigerated or frozen.16 The police placed the kit in a secure refrigerator at the police station.17
Nine days after the attack, on November 7, 1983, the police asked the boy to pick out his assailant from a photographic lineup.18 The boy identified respondent as the assailant.19 Respondent was not located by the police until four weeks later; he was arrested on December 9, 1983.20 On November 8, 1983, Edward Heller, a police criminologist, examined the sexual assault kit.21 He testified that he followed standard department procedure, which was to examine the slides and determine whether sexual contact had occurred.22 After he determined that such contact had occurred, the criminologist did not perform any other tests, although he placed the assault kit back in the refrigerator.23
In January 1985, the police criminologist examined the boy’s clothing for the first time.24 He found one semen stain on the boy’s underwear and another on the rear of his T-shirt.25 The criminologist tried to obtain blood group substances from both stains using the ABO technique, but was unsuccessful.26 He also performed a P-30 protein molecule test on the stains, which indicated that only a small quantity of semen was present on the clothing; it was inconclusive as to the assailant’s identity.27 Respondent’s principal defense at trial was that the boy had erred in identifying him as the perpetrator of the crime.28 In this connection, both a criminologist for the State and an expert witness for respondent testified as to what might have been shown by tests performed on the samples shortly after they were gathered, or by later tests performed on the samples from the boy’s clothing had the clothing been properly refrigerated.29 The jury found respondent guilty as charged, but the Arizona Court of Appeals reversed the judgment of conviction.30 The Supreme Court of Arizona denied the State’s petition for review.31 The United States Supreme Court granted certiorari to consider the due process issue.32
Whether the Due Process Clause of the Fourteenth Amendment requires the State to preserve evidentiary material that might be useful to a criminal defendant?33
The Due Process Clause requires disclosure of material exculpatory evidence under Brady v. Maryland irrespective of good or bad faith.34 For failure to preserve potentially useful evidence 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, the defendant must show bad faith on the part of the police.35
No. The police collected the rectal swab and clothing on the night of the crime, but respondent was not taken into custody until six weeks later.36 The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent.37 None of this information was concealed from respondent at trial, and the evidence was made available to respondent’s expert who declined to perform any tests on the samples.38 The Arizona Court of Appeals noted in its opinion, and the Court agreed, that there was no suggestion of bad faith on the part of the police.39
The Due Process Clause does not impose an absolute duty to preserve all potentially useful evidence absent bad faith.
The Due Process Clause does not impose an absolute duty to preserve all potentially useful evidence absent bad faith, so the failure here did not constitute a denial of due process.40
Related opinions on this issue
Justice Stevens concurred in the judgment based on three factors of critical importance.41 First, at the time the police failed to refrigerate the victim’s clothing, and thus negligently lost potentially valuable evidence, they had at least as great an interest in preserving the evidence as did the person later accused of the crime.42 Second, although it is not possible to know whether the lost evidence would have revealed any relevant information, it is unlikely that the defendant was prejudiced by the State’s omission.43 In examining witnesses and in her summation, defense counsel impressed upon the jury the fact that the State failed to preserve the evidence.44 The State could have conducted tests that might well have exonerated the defendant.45 More significantly, the trial judge instructed the jury that if it found the State had allowed evidence to be destroyed or lost, it could infer that the true fact is against the State’s interest.46
Third, the fact that no juror chose to draw the permissive inference that proper preservation of the evidence would have demonstrated that the defendant was not the assailant suggests that the lost evidence was immaterial.47 Stevens did not join the Court’s opinion because it announces a proposition of law that is much broader than necessary to decide this case.48 It states 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.49 In his opinion there may well be cases in which the defendant is unable to prove that the State acted in bad faith.50 In such cases the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.51 This, however, is not such a case.52
Whether bad faith on the part of the police is required before the failure to preserve potentially useful evidence constitutes a denial of due process?53
Yes, 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.54
Yes. In this case, the police collected the rectal swab and clothing on the night of the crime; respondent was not taken into custody until six weeks later.55 The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence was made available to respondent’s expert who declined to perform any tests on the samples.
The Arizona Court of Appeals noted in its opinion, and the Court agreed, that there was no suggestion of bad faith on the part of the police. Requiring a defendant to show bad faith on the part of the police limits the extent of the police’s obligation to preserve evidence to reasonable bounds.56 It also confines the obligation to that class of cases where the interests of justice most clearly require it.57
Bad faith on the part of the police is required before the failure to preserve potentially useful evidence constitutes a denial of due process, and since none was shown here there was no constitutional violation.58
Related opinions on this issue
Justice Blackmun dissented, arguing that the Constitution requires that criminal defendants be provided with a fair trial, not merely a good faith try at a fair trial.59 Respondent here, by what may have been nothing more than police ineptitude, was denied the opportunity to present a full defense.60 In his view, the majority misreads the import of its prior cases and unduly restricts the protections of the Due Process Clause.61
Blackmun contended that Brady and Agurs establish that a prosecutor’s bad faith in interfering with a defendant’s access to material evidence is not an essential part of a due process violation.62 Nor did Trombetta create such a requirement.63 The proper standard must focus on the materiality of the evidence.64 That standard must reflect our overriding concern with the justice of the finding of guilt rather than the character of the prosecutor.65
He proposed that where no comparable evidence is likely to be available to the defendant, police must preserve physical evidence of a type that they reasonably should know has the potential, if tested, to reveal immutable characteristics of the criminal, and hence to exculpate a defendant charged with the crime.66 Applying this standard to the facts of this case, Blackmun concluded that the Arizona Court of Appeals was correct in overturning respondent’s conviction.67 The clothing worn by the victim contained samples of his assailant’s semen.68 The appeals court found that these samples would probably be larger, less contaminated, and more likely to yield conclusive test results than would the samples collected by use of the assault kit.69