Jury Instructions – Missing Evidence

Unless otherwise indicated, all indented material is copied directly from the court’s opinion.

Decisions of the Tennessee Supreme Court

Decisions of the Tennessee Court of Criminal Appeals

Editor’s Note:  for more on this issue click here.

State of Tennessee v. King, No. W2020-01628-CCA-R3-CD (Tenn. Ct. Cr. App. Feb. 8, 2022).

This court reviews the trial court’s decision regarding the fundamental fairness of a trial conducted without the missing evidence de novo. State v. Merriman, 410 S.W.3d 779, 791 (Tenn. 2013). The trial court’s findings of fact are conclusive on appeal unless the evidence preponderates against them. See id. This court reviews the trial court’s remedy under the abuse of discretion standard. Id.

In State v. Ferguson, the Tennessee Supreme Court held that “the loss or destruction of potentially exculpatory evidence may violate a defendant’s right to a fair trial.” State v. Merriman, 410 S.W.3d at 784 (Tenn. 2013) (citing State v. Ferguson, 2 S.W.3d 912, 915-16 (Tenn. 1999)). Upon determining that the due process clause under the Tennessee Constitution was broader than the due process clause under the United States Constitution, the Tennessee Supreme Court rejected the “bad faith” analysis adopted by the United States Supreme Court which provided that “‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’” Id. at 784-85 (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). Rather, the court in Ferguson adopted a balancing approach requiring the trial court to determine “‘[w]hether a trial, conducted without the [lost or] destroyed evidence, would be fundamentally fair.’” Id. at 785 (quoting Ferguson, 2 S.W.3d at 914).

When a Ferguson claim is raised, a trial court must first determine “whether the State had a duty to preserve the evidence.” Id. “[T]he State’s duty to preserve evidence is limited to constitutionally material evidence described as ‘evidence that might be expected to play a significant role in the suspect’s defense.’” Id. (quoting Ferguson, 2 S.W.3d at 917). To meet the constitutionally material evidence standard, “the evidence must potentially possess exculpatory value and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id.

If the proof establishes that the State had a duty to preserve the evidence and that the State failed in its duty, the court must conduct a balancing analysis, considering the following factors:

        1. The degree of negligence involved;
        2. The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available; and
        3. The sufficiency of the other evidence used at trial to support the conviction.

Ferguson, 2 S.W.3d at 917 (footnote omitted). The trial court must balance these factors to determine whether a trial would be fundamentally fair absent the missing evidence. Merriman, 410 S.W.3d at 785. If the trial court determines that a trial would be fundamentally unfair without the missing evidence, “the trial court may then impose an appropriate remedy to protect the defendant’s right to a fair trial, including, but not limited to, dismissing the charges or providing a jury instruction.” Id. at 786.


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