Eighth Circuit Reserves on Question Whether Spoliation Sanctions Are Ever Appropriate in a Criminal Case

United States v. Davis, 2012 U.S. App. LEXIS 17735 (8th Cir. Aug. 22, 2012):

Davis contends the district court's refusal to give a spoliation instruction based upon the DEA's destruction of the videotape violated his constitutional due process rights. Davis's arguments on this point are admittedly reiterative of his suppression arguments because, in Davis's view, "the same due process concerns that inform the suppression analysis underpin the [district court's] refusal to instruct the jury on spoliation." Davis's failure to show the videotape was exculpatory or that the DEA destroyed the videotape in bad faith is again fatal to his due process claim.

As Davis acknowledges, we have never "applied the law of spoliation in a criminal case." See United States v. Miell, 661 F.3d 995, 1000 n.5 (8th Cir. 2011) (reserving the issue). Even if we assume the spoliation doctrine applies in this context, "[s]evere spoliation sanctions, such as an adverse inference instruction, are only appropriate upon a showing of bad faith." Stepnes v. Ritschel, 663 F.3d 952, 965 (8th Cir. 2011); accord United States v. Lanzon, 639 F.3d 1293, 1302-03 (11th Cir. 2011) (assuming the spoliation doctrine applied in a criminal case and concluding the trial court did not abuse its discretion in denying a proposed jury instruction because the defendant failed to show bad faith or prejudice).

To warrant such an instruction, a defendant generally must establish record evidence supporting "an inference that the police acted improperly by destroying any evidence." United States v. Larsen, 427 F.3d 1091, 1095 (8th Cir. 2005). This Davis fails to do. Davis's attempt to fashion bad faith out of the government's purported "conflicting and inadequate explanations of why the destruction took place" again falls short.

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