Habeas – Duty to Preserve Apparent Exculpatory Evidence
Pretrial destruction of car driven by McCarthy didn’t violate State’s duty to preserve exculpatory evidence, the court rejecting McCarthy’s argument that the destruction unconstitutionally impaired his affirmative defense of brake failure (against charge of causing great bodily harm by operating vehicle while under the influence, § 940.25(1)(am)). The car didn’t possess “apparently” exculpatory evidence, given what was known about the details of the offense (“it seems unlikely (i.e., not apparent) that he would continue his flight while knowing that his brakes were faulty”). Nor can he show that the State destroyed the car in bad faith.
The details are highly case-specific and won’t be recited here. Of perhaps greater interest is the court’s formulation of the duty to preserve exculpatory evidence under California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988), which diverges from Wisconsin’s formulation:
Our interpretation of Trombetta and Youngblood differs from that of Wisconsin courts. According to Wisconsin courts, these cases stand for the proposition that a defendant’s due process rights are violated if the police (1) failed to preserve “apparently” exculpatory evidence, leaving the defendant with no ability to obtain comparable evidence by any other reasonable means (with this portion of rule deriving from Trombetta); or (2) failed to preserve “potentially” exculpatory evidence in bad faith (with this portion of the rule deriving from Youngblood). See, e.g., State v. Greenwold, 525 N.W.2d 294, 296-98 (Wis . Ct. App. 1994). However, according to our precedent, Trombetta and Youngblood do not create two separate rules, with the former governing “apparently” exculpatory evidence and the latter governing “potentially” exculpatory evidence. We instead read both cases to stand for the same proposition: the destruction of potentially exculpatory evidence violates the defendant’s right to due process if (1) the State acted in bad faith; (2) the exculpatory value of the evidence was apparent before it was destroyed; and (3) the evidence was of such a nature that the petitioner was unable to obtain comparable evidence by other reasonably available means.3 See, e.g., Henry v. Page, 223 F.3d 447, 481 (7th Cir. 2000) (explaining that Youngblood used the word “potentially” to illustrate that the defendant failed the second prong—which requires the evidence’s exculpatory value to be apparent—of Trombetta’s test).