State v. Engesser4/23/2003
troyed was unfavorable to the party responsible for its destruction.*fn8 Id.; 22A CJS Criminal Law § 596 at 377 (1961). See United States v. Remington, 191 F2d 246, 251 (2dCir 1951) (suppression of evidence). Spoliation is more than simply the loss of evidence. Our prior cases have never analyzed when precisely an instruction on spoliation is warranted. In State v. Kietzke, the Court simply recited the rule and found no prejudice in the trial court's refusal to give the instruction. 85 SD 502, 515, 186 NW2d 551, 558 (1971). However, it is vital to understand that an adverse inference drawn from the destruction of evidence is predicated only on bad conduct. United States v. Wise, 221 F3d 140, 156 (5thCir 2000), cert. denied, 532 US 959, 121 SCt 1488, 149 LEd2d 375 (2001). The defendant's argument seems to presuppose that any evidence destroyed at the hands of the police, whether by mistake, inadvertence, oversight, misjudgment, negligence, or ignorance, warrants an adverse inference instruction. That is incorrect. A proper application of the rule requires a showing of an intentional act of destruction. Only intentional destruction will sustain the rule's rationale that the destruction amounts to an admission by conduct of the weakness of one's case. McCormick at 660-61; 31A CJS Evidence § 293 at 750-51 (1964).*fn9
[ .] A substantial number of courts have held that a spoliation instruction is not appropriate when the destruction is not intentional. See, e.g., Randolph v. State, 36 P3d 424 (Nev 2001); Jackson v. State, 791 So2d 830 (Miss 2001); Patterson v. State, 356 Md. 677, 741 A2d 1119 (1999); State v. Vanover, 721 A2d 430 (RI 1998); State v. Steffes, 500 NW2d 608 (ND 1993); People v. Cooper, 53 Cal3d 771, 809 P2d 865, 281 CalRptr 90 (1991) (in banc); State v. Langlet, 283 NW2d 330 (Iowa 1979); Torres v. State, 962 P2d 3 (OklaCrimApp 1998). The same rule applies in criminal and civil cases. See, e.g., Spesco v. General Elec. Co., 719 F2d 233 (7thCir 1983). But see, e.g., State v. Fulminante, 193 Ariz 485, 975 P2d 75 (1999); Lolly v. State, 611 A2d 956 (Del 1992). It is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator. Such a presumption or inference arises, however, only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.
Jackson, 791 So2d at 838 (quoting Tolbert v. State, 511 So2d 1368 (Miss 1987)) (emphasis in original). A few courts hold the view that spoliation of evidence need not be intentional to warrant sanctions. See, e.g., Wajda v. Kingsbury, 652 NW2d 856 (MinnCtApp 2002).
[ .] As the Nebraska Supreme Court recognized, even when it is not proper for the trial court to give an adverse inference instruction, a defendant can still, when relevant evidence was destroyed or not presented, use the absence of that evidence in argument against the prosecution. State v. Davlin, 639 NW2d 631, 648 (Neb 2002). In this case, Engesser had the opportunity to use the failure to preserve any blood spatter evidence in argument to the jury and as a basis for cross-examining the State's witnesses. As the Davlin Court explained, [m]any inferences may be drawn from a missing piece of evidence; however, emphasis on one possible inference, communicated to the jury as part of the court's binding jury instructions, creates the danger that the jury may give that inference undue weight. At the very least, a trial judge's jury instruction may have the effect of overemphasizing just one of the m
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