When erased electronic-based evidence is exculpatory and material, it’s loss is a due process violation.

A Due Process Violation Does Not Always Occur if a Police Department Loses a Cell Phone’s Contents that Relate to a Criminal Prosecution

Author: Caiti Derenze
Case Citation: United States of America v. Peterson, 2017 WL 5709567 (W.D. Mo. 2017)
Employee/Personnel/Employer Implicated: Personnel
eLesson Learned: A police department does not have to take every precaution to ensure that an electronic device and its data are maintained in a manner that protects and preserves evidence, unless that evidence is exculpatory and material.
Tweet This: An indictment against a defendant can be dismissed if lost electronic evidence was exculpatory and material.

A criminal defendant has a high standard to meet to prove that a police department’s loss of electronic evidence amounts to a due process violation. In Joplin, Missouri, a defendant was indicted for using a cellular telephone network to “knowingly persuade, induce, and entice” a fifteen-year-old girl to engage in sexual activity with him. Evidence against the defendant came from the minor’s cellphone, which was handed over to Joplin’s police department by the minor’s parent. The department preserved that evidence by creating a physical image of the phone, which was stored on the department’s network storage device. Before the department returned the phone to the minor’s parent, it wiped the phone’s contents in accordance with the department’s policy at that time.

A few months after the evidence was stored, the network storage device crashed accidentally. This crash caused the department to lose the image of the minor’s cell phone and images of other cell phones not involved in the case. Notably, the department had no back-up of the network storage device. The only data the department had after the crash was that which it hand-picked and printed out, including thumbnails of certain images and copies of the text messages between the minor and defendant.

The defendant claimed that the loss of the cell phone’s content amounted to a due process violation and therefore, the indictment against him should be dismissed. He argued that the department failed to take “every precaution to ensure that the Device and its data w[ere] acquired and maintained in a manner that protects and preserved the evidence …  constiut[ing] a violation of the Defendant’s right to due process.”

The court disagreed.  It explained that a court determines whether an indictment can be dismissed due to spoliation of the evidence through three separate tests. The first test is whether the lost evidence will “clearly exculpate the defendant” and if so whether the destruction of said evidence was done in bad faith. The court determined that the evidence contained on the cell phone did not have any exculpatory value, which meant the defendant failed to meet the first test.

The second test is whether the destroyed evidence would have only “potentially exculpate[d] the defendant” and if so, whether the evidence was destroyed in bad faith. Again, the court determined that the evidence was not exculpatory. As to the bad faith, it held that bad faith only occurs when a police department purposefully destroys evidence to deprive the defendant of it. Here, the crashing of the network storage device and the wiping of the cell phone before returning it to the minor’s parents were only considered negligent destruction of evidence and did not meet the bad faith standard.

Finally, the third test states, “if the government has destroyed evidence that has no exculpatory value whatsoever, there is no due process violation.” Since the court determined the lost evidence had no exculpatory value, there was no due process violation and the indictment against the defendant could not be dismissed.

Caiti Derenze graduated from the College of the Holy Cross located in Worcester, Massachusetts where she earned a B.A. in Political Science in 2013. Prior to attending Seton Hall University School of Law, Caiti taught 5th grade and Kindergarten as a Teach for America corps member in Miami, Florida. After graduating law school in May 2018, Caiti will serve as a clerk to a judge in the Appellate Division of New Jersey. 

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