A finding of bad faith is not required for a remedial jury instruction when the government’s negligent destruction of evidence significantly prejudices a defendant, the Ninth Circuit ruled earlier this month in its panel decision in United States v. Sivilla, No. 11-50484 (9th Cir. May 7, 2013) (Noonan, J.). However, bad faith—or a showing that the exculpatory nature of spoliated evidence was apparent to the government—remains necessary for complete dismissal under Arizona v. Youngblood, 488 U.S. 51 (1988).

In June 2010, Victor Hugo Sivilla loaned his Jeep to his sister’s boyfriend for several hours. Two days later, Sivilla was arrested after U.S. border agents found $160,000 worth of cocaine and heroin in his vehicle’s engine manifold. After photographing the Jeep’s engine compartment, the case agent turned the vehicle over to the Department of Homeland Security (DHS) forfeiture section.

After the arrest, Sivilla’s attorney sent a letter to the government requesting that it preserve the evidence in the Jeep, and the district court issued two orders specifically naming the Jeep as subject to a preservation hold. Although the government represented it would preserve the evidence, the case agent merely emailed the DHS forfeiture section, requesting that it not destroy any evidence until the case concluded. The Jeep was auctioned and stripped for parts two months later.

When Sivilla learned the Jeep evidence had been destroyed, he moved to dismiss the indictment, or in the alternative, for a remedial jury instruction “that defense counsel had no opportunity to inspect the vehicle because the government failed to preserve the vehicle in violation of a court order.” The district court denied the motion because there was no evidence of bad faith by the government. At trial, defense counsel argued to the jury that Sivilla was a “blind mule” unaware the drugs were in the Jeep, and that he had lent his Jeep to the boyfriend days before the crossing. However, he was unable to present expert evidence about how long the drugs had been in the Jeep or whether they could have been stashed there without his knowledge because the Jeep had been stripped before the expert could access it. Sivilla was convicted on all counts and sentenced to 120 months in prison.

On appeal, the Ninth Circuit reviewed, first, whether government failure to preserve potentially exculpatory evidence violated the defendant’s due process rights and warranted an outright dismissal. For the government’s conduct to constitute a constitutional violation under Arizona v. Youngblood, the Court held, a criminal defendant must show (1) “that the government acted in bad faith, the presence or absence of which ‘turns on the government’s knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed,’” and (2) that the nature of the evidence is such “that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Notably, in Youngblood, the Supreme Court found no due process violation after government agents negligently destroyed DNA evidence; sixteen years after his conviction, more sophisticated analysis testing exonerated the defendant imprisoned for child molestation, sexual assault, and kidnapping.) Relying upon the border agent’s testimony that he did not see “significant evidentiary value in keeping the [Jeep] . . . itself,” the court found no bad faith, and therefore no due process violation.

As for the district court’s refusal to grant a remedial jury instruction, however, the Ninth Circuit held that “[b]ad faith is the wrong legal standard for a remedial jury instruction.” Since “[the court’s principal concern is to provide the accused an opportunity to produce and examine all relevant evidence, to insure a fair trial,” “[c]ourts must balance the quality of the Government’s conduct against the degree of prejudice to the accused, where the government bears the burden of justifying its conduct and the accused of demonstrating prejudice.” The panel found that the government was negligent because “[t]he prosecutor promised to protect the evidence but failed to take any affirmative action to that end,” and that the prejudice to the defendant was significant since Sivilla was left without any means to present his only defense. (The only other evidence available was “grainy and indecipherable photographs” upon which no expert could rely). Finding that the prejudice to Sivilla outweighed the prosecutor’s negligence, the panel held that Sivilla was entitled to a remedial jury instruction and remanded the case for a new trial.

Applying the Bad Faith Standard to Electronic Evidence

Like the Ninth Circuit, other courts have sought to soften the blow of Youngblood’s due process standard by requiring remedial jury instructions in certain circumstances. In U.S. v. Suarez, 2010 WL 4226524, the District Court of New Jersey considered whether due process required suppression of investigation-related text messages after the FBI failed to preserve other investigation-related text messages between the agents and a cooperating witness. The district court ruled that the government had failed to preserve “relevant data in the midst of an ongoing investigation specifically aimed at prosecution, and thus where litigation was reasonably anticipated.” But, finding no evidence that the government acted in “bad faith or that the text messages clearly contained exculpatory material,” the court declined to suppress the messages entirely.

Instead, the court granted the defendant’s request for an adverse jury instruction. In so doing, the court looked to civil spoliation standards and held that the adverse-inference instruction was appropriate because the evidence was within the government’s control when it was deleted from the devices and not preserved on the server; its suppression was relevant to the defense theory and therefore prejudiced the defendant; and it was reasonably foreseeable that, in the context of the investigation, the text messages would later have been discoverable.

Are Defendants Getting a Fair Trial, or “Merely a ‘Good Faith’ Try at a Fair Trial”?

Although adverse jury instructions may alleviate some of the harsh consequences of negligent destruction of evidence, the question remains whether a showing of bad faith is the appropriate Constitutional benchmark of due process—particularly when the government’s “good faith” conduct is unreasonable and denies a criminal defendant the opportunity to present a full defense. As Justice Blackmun (unsuccessfully) concluded in Youngblood, “[t]he Constitution requires that criminal defendants be provided with a fair trial, not merely a ‘good faith’ try at a fair trial.” 488 U.S. at 61 (Blackmun, J., dissenting). A more appropriate due process measure may be the objective balancing tests applied by Sivilla and Suarez when considering adverse-inference instructions—which weighed the fault of the government, the prejudice to the defendant, and the reasonable foreseeability that the evidence in question would become discoverable.

This is particularly true of electronic evidence, which the government is increasingly using to both investigate and prosecute its cases. A bad faith standard relying on “apparent” exculpatory value may be inappropriate in the context of ESI, the value of which may be hidden in metadata, in the unoccupied space of a hard drive, or in the sheer volume of data collected. Moreover, the current bad faith standard is simply inequitable. Unlike prosecutors, criminal defendants, especially in the white-collar context, face far-reaching consequences when they fail to preserve ESI, even before criminal charges have been filed against them. A white-collar defendant’s ability to justify its ESI preservation efforts (or lack thereof) may impact prosecutorial charging decisions, plea negotiations, and Sentencing Guideline calculations, and a defendant’s spoliation of evidence may result in a consciousness-of-guilt jury instruction and even criminal obstruction of justice charges. It is only fair that the government face similarly stringent consequences (including suppression or dismissal) for a failure to take reasonable measures to ensure that ESI is not avoidably corrupted, deleted, lost, encrypted, manipulated, or overwritten; reasonableness, moreover, requires that prosecutors and agents understand the technology they are using. A rebalancing of the equities seems like a small price, particularly when an individual’s liberty is at stake.