Investigation, Bad Faith & Due Process

Illinois v. Fisher, 540 U.S. 544, 549, at 549 n. * (2004)(Stevens, J., concurring):

* Youngblood's focus on the subjective motivation of the police represents a break with our usual understanding that the presence or absence of constitutional error in suppression of evidence cases depends on the character of the evidence, not the character of the person who withholds it. United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Since Youngblood was decided, a number of state courts have held as a matter of state constitutional law that the loss or destruction of evidence critical to the defense does violate due process, even in the absence of bad faith. As the Connecticut Supreme Court has explained, "[f]airness dictates that when a person's liberty is at stake, the sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant received due process of law." State v. Morales, 232 Conn. 707, 723, 657 A.2d 585, 593 (1995). See also State v. Ferguson, 2 S.W.3d 912, 916-917 (Tenn. 1999); State v. Osakalumi, 194 W. Va. 758, 765-767, 461 S.E.2d 504, 511-512 (1995); State v. Delisle, 162 Vt. 293, 309, 648 A.2d 632, 642 (1994); Ex parte Gingo, 605 So.2d 1237, 1241 (Ala. 1992); Commonwealth v. Henderson, 411 Mass. 309, 310-311, 582 N.E.2d 496, 497 (1991); State v. Matafeo, 71 Haw. 183, 186-187, 787 P.2d 671, 673 (1990); Hammond v. State, 569 A.2d 81, 87 (Del. 1989); Thorne v. Department of Public Safety, 774 P.2d 1326, 1330, n. 9 (Alaska 1989).