Evidence, Missing or Destroyed (Ferguson Issues)
Except as indicated, all indented material is copied directly from the court’s opinion.
Decisions of the Tennessee Supreme Court
State v. Rimmer, 623 S.W.3d 235, 256 (Tenn. 2021).
To review a trial court’s decision regarding the fundamental fairness of a trial conducted despite missing or destroyed evidence, we apply a de novo standard. State v. Merriman, 410 S.W.3d 779, 791 (Tenn. 2013). If we conclude the trial would be fundamentally unfair without the missing or destroyed evidence, then we review the remedy imposed by the trial court for an abuse of discretion. Id. at 791–92.
Decisions of the Tennessee Court of Criminal Appeals
State v. McDaniel, No. E2021-00565-CCA-R3-CD, p. 35 (Tenn. Ct. Crim. App. Nov. 30, 2022).
A trial court’s application of the Ferguson factors involves a constitutional issue, and our supreme court has concluded that the proper standard of review on appeal concerning the fundamental fairness of a trial is de novo. Merriman, 410 S.W.3d at 791.
State v. Crass, No. M2021-00528-CCA-R3-CD, p. 9 (Tenn. Ct. Crim. App. Nov. 22, 2022).
A trial court’s decision concerning the fundamental fairness of a trial conducted without missing evidence presents a constitutional issue that is reviewed de novo. State v. Merriman, 410 S.W.3d 779, 790 (Tenn. 2013). If following a de novo review, an appellate court concludes that “the trial would be fundamentally unfair in the absence of the lost evidence,” the appellate court “will apply an abuse of discretion standard to review the appropriateness of the remedy imposed by the trial court.” Id. at 792. “The decision whether to dismiss an indictment lies within the discretion of the trial court.” State v. Harris, 33 S.W.3d 767, 769 (Tenn. 2000) (citing State v. Benn, 713 S.W.2d 308, 311 (Tenn. 1986)). Consequently, “[a]ppellate courts ‘may not interfere with a ruling made within the discretionary powers of the trial court absent clear abuse.’” Id. at 769-70 (quoting State v. Street, 768 S.W.2d 703, 709 (Tenn. Crim. App. 1988)).
State v. Thomas, No. W2021-00534-CCA-R3-CD, p. 23 (Tenn. Ct. Crim. App. Oct. 4, 2022).
This court reviews the trial court’s decision regarding the fundamental fairness of a trial conducted without the missing evidence de novo. Merriman, 410 S.W.3d at 791. The trial court’s findings of fact are conclusive on appeal unless the evidence preponderates against them. See id. (citations omitted). This court reviews the trial court’s remedy for a Ferguson violation under the abuse of discretion standard. Id.
State of Tennessee v. Morton, No. E2019-01755-CCA-R3-CD, p. 40 (Tenn. Ct. Crim. App. June 27, 2022).
In Ferguson, our supreme court addressed “the factors [that] should guide the determination of the consequences that flow from the State’s loss or destruction of evidence which the accused contends would be exculpatory.” Ferguson, 2 S.W.3d at 914. The court explained that a reviewing court must first determine whether the State had a duty to preserve the lost or destroyed evidence. Id. at 917. “For this duty to arise, the [evidence] must be expected to play a significant role in [the Appellant’s] defense.” State v. Merriman, 410 S.W.3d 779, 792 (Tenn. 2013). “Specifically, [the evidence] must have potential exculpatory value and be of such a nature that [the Appellant] would be unable to obtain comparable evidence by other reasonably available means.” Id. “If the proof demonstrates the existence of a duty to preserve and further shows that the State has failed in that duty, the analysis moves to a consideration of several factors which should guide the decision regarding the consequences of the breach.” Ferguson, 2 S.W.3d at 917. The factors include:
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.
Id. (footnote omitted). If the court’s consideration of these factors reveals that a trial without the missing evidence would lack fundamental fairness, the court may consider several options such as dismissing the charges or providing an appropriate jury instruction. Id. We will review a trial court’s decision concerning the fundamental fairness of the trial under a de novo standard. Id. at 790. In the event we determine the trial would be fundamentally unfair in the absence of the lost evidence, we will review the remedy applied by the trial court under an abuse of discretion standard. Id. at 791-92.
State of Tennessee v. Crowson, No. M2021-00321-CCA-R3-CD, p. 9 (Tenn. Ct. Crim. App. May 27, 2022).
Therefore, “[i]f the proof demonstrates the existence of a duty to preserve [evidence that is now missing] and further shows that the State has failed in that duty, the analysis moves to a consideration of several factors which should guide the decision regarding the consequences of the breach.” Id. The applicable factors include: “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.” Id.
“If, after considering all the factors, the trial judge concludes that a trial without the missing evidence would not be fundamentally fair, then the trial court may dismiss the charges. Dismissal is, however, but one of the trial judge’s options.” Id. “[T]he standard of review of a trial court’s determination as to whether a defendant was deprived of a fundamentally fair trial is de novo with no presumption of correctness.” State v. Merriman, 410 S.W.3d 779, 797 (Tenn. 2013). “Deference should be given to the trial court’s findings of fact, however, unless the evidence preponderates otherwise.” Id. Thus, “[a] trial court’s determination of the appropriate remedy for the State’s failure to preserve the evidence is reviewed under an abuse of discretion standard.” Id.
State of Tennessee v. Tate, No. E2021-00217-CCA-R3-CD (Tenn. Ct. Crim. App. Feb. 28, 2022).
The Tennessee Supreme Court in State v. Ferguson 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 779, 784 (Tenn. 2013) (citing Ferguson, 2 S.W.3d at 915-16). The supreme court determined that the due process clause under the Tennessee Constitution was broader than the due process clause under the United States Constitution and 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 78485 (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 defendant raises a Ferguson claim, 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:
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- The degree of negligence involved;
- The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available; and
- The sufficiency of the other evidence used at trial to support the conviction.
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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.
This court reviews the trial court’s decision regarding the fundamental fairness of a trial conducted without the missing evidence de novo. Id. at 791. The trial court’s findings of fact are conclusive on appeal unless the evidence preponderates against them. See id. (citations omitted). This court reviews the trial court’s remedy for a Ferguson violation under the abuse of discretion standard. Id.
State v. Terry Craighead and Sinead St. Omer, No. M2017-01085-CCA-R3-CD, 2018 WL 5994974, at *8 (Tenn. Crim. App., at Nashville, Nov. 15, 2018).
State of Tennessee v. McDaniel, No. E2019-01862-CCA-R3-CD, p. 18-19 (Tenn. Ct. Crim. App. Feb. 24, 2022).
In Ferguson, our supreme court addressed the issue of when a defendant is entitled to relief in the event the State has lost or destroyed evidence that was alleged to have been e xculpatory. 2 S.W.3d at 915-18. The court explained that a reviewing court must first determine whether the State had a duty to preserve the lost or destroyed evidence. Id. at 917. Ordinarily, “the State has a duty to preserve all evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or other applicable law.” Id. However,
[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)).
If the proof demonstrates the existence of a duty to preserve the evidence and further shows that the State has failed in that duty, a court must proceed with a balancing analysis involving consideration of the following factors:
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- The degree of negligence involved;
- The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available; and
- The sufficiency of the other evidence used at trial to support the conviction.
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Id. (footnote omitted). If the court’s consideration of these factors reveals that a trial without the missing evidence would lack fundamental fairness, the court may consider several options such as dismissing the charges or providing an appropriate jury instruction. Id. This court reviews the trial court’s decision concerning the fundamental fairness of a trial conducted without the missing evidence under a de novo standard of review. State v. Merriman, 410 S.W.3d 779, 791 (Tenn. 2013). We review the appropriateness of the remedy provided by the trial court under an abuse of discretion. Id.