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State v. Ward2/9/2001
e process rights. But in Ward's case, a police officer affirmatively told him that there was no time limit - no need to act promptly. Having made this representation, the state was obliged to honor it. That is, the state was obliged to make an effort to ensure that Ward's blood sample was preserved as promised.
B. What is the appropriate remedy?
When the state destroys or loses evidence in its possession, the trial court is not automatically required to impose sanctions. Rather, the court must "carefully examine the circumstances surrounding the state's violation of its duty of preservation." Specifically, the court must consider the degree of culpability on the part of the state, the importance of the lost evidence, the prejudice suffered by the defendant, and the evidence of guilt adduced at the hearing or trial. In Thorne, the supreme court considered these factors and determined that the appropriate sanction for the state's premature destruction of the videotape of the defendant's field sobriety tests was to remand with directions to the hearing officer to presume that the videotape would have been favorable to the defendant.
It is well-established that when evidence is destroyed in bad faith or in "a deliberate attempt to avoid production, sanctions will normally follow." But when evidence is "lost or destroyed in good faith, the imposition of the sanctions will depend upon the degree to which the defendant has been prejudiced." As the supreme court noted in Putnam:
In cases where the defendant cannot reasonably be said to have been prejudiced by the state's good faith failure to preserve the evidence, sanctions will generally not be appropriate. Where, however, the defendant has suffered prejudice, sanctions will generally be warranted. Just what sanction is appropriate in a given case is best left to the sound discretion of the trial court.
In Ward's case, there is no evidence that the state intentionally destroyed Ward's blood sample. At most, the evidence suggests that the state was negligent in not telling Ward that there was a need to act promptly to preserve and test the sample. Thus, the sanction to be imposed in Ward's case, if any, will depend in large part on the degree of prejudice suffered by Ward.
It further appears that, if a sanction is to be imposed, Thorne establishes the presumption that the appropriate sanction is a jury instruction modeled after the relief granted in Thorne - an instruction telling the jury to assume that the missing evidence would have been favorable to Ward.
We therefore VACATE Judge Motyka's decision and REMAND this case to the district court for reconsideration of its decision in light of this opinion.
We do not retain jurisdiction of this case.
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