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State v. Robinson9/19/2005
demand that the State preserve potentially exculpatory evidence on behalf of defendants." Id. at 481, 104 S.Ct. at 2530. In Trombetta, the defendants were charged with driving while intoxicated. Id. at 482, 104 S.Ct. at 2530. They later moved to suppress intoxilyzer test results because the arresting officers failed to preserve their breath samples. Id. The Court concluded that the breath-analysis test results were admissible, noting that "California law enforcement officers do not ordinarily preserve breath samples." Id. at 482-83, 104 S.Ct. at 2530-31. The Court stated that although "criminal prosecutions must comport with prevailing notions of fundamental fairness[,]" the officers "did not destroy [the defendants'] breath samples in a calculated effort to circumvent . . . disclosure requirements." Id. at 485, 488, 104 S.Ct. at 2532, 2533. Instead, the officers acted ``in good faith and in accord with their normal practice.'" Id. at 488, 104 S.Ct. at 2533. The Trombetta Court also noted that the constitutional duty to preserve evidence must be limited to evidence whose "exculpatory value was apparent before the evidence was destroyed." The Court required that evidence also be unique, meaning that "the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489, 104 S.Ct. at 2534.
In State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), the Tennessee Supreme Court considered a similar issue. In Ferguson, the police stopped a vehicle driven by Ferguson, observed appearances of intoxication, administered two field sobriety tests, suspected him of driving while under the influence, arrested him, and transported him to the police station. Id. at 914-15. There, Ferguson attempted further field sobriety tests, which were videotaped. Id. at 915. The officers subjected Ferguson to no objective testing, such as a breath test. Subsequently, the videotape of Ferguson's in-station field sobriety tests was inadvertently erased when it was "taped over." Id. at 914.
Our supreme court determined that the ultimate question to be resolved when addressing due process concerns involving the state's loss or destruction of evidence is " hether a trial, conducted without the destroyed evidence, would be fundamentally fair[.]" Id. at 914 (footnote omitted). To make that determination, a lack of official bad faith is not determinative, and a reviewing court should employ a balancing test; it should determine:
(1) whether the state had a duty to preserve the evidence, and if so,
(2) whether the state should suffer adverse consequences by considering:
(a) the degree of negligence involved;
(b) the "significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available"; and
(c) the "sufficiency of the other evidence used at trial to support the conviction."
See id. at 917.
The Ferguson court held that, although the police apparently had no duty originally to videotape the field sobriety tests performed at the station, once the tape had been made, the police had a duty to preserve it because "the videotape may have shed light on [Ferguson's] appearance and condition on the morning in question." Id. at 918. Based upon that legal conclusion and the general similarity of Ferguson to the present case, we conclude that, in the present case, the police had a duty to preserve the videotape, even though they had no duty to make the tape in the first place.
That said, we reject the claim that the loss or destruction of the videotape should result in a dismissal of the charges or any other sancti
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