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Evidence Preservation Does it Pre-date the Indictment

February 13, 2008

Assume the following. Your client has been charged with Vehicular Manslaughter. The crime allegedly occurs in September, but is not indicted until December. In November, a county sheriff reconstructionist views the victim's 1999 GM passenger vehicle. He takes no measurements of the damage nor does he photograph it for evidentiary purposes. Nonetheless, he tests the electrical system and does hot shock analysis on the headlamps and turn indicators to attempt to determine whether they were in use at the time of the accident. Two weeks prior to indictment, the vehicle was destroyed. You do not become aware of the destruction until you demand an inspection pursuant to the request of your accident reconstructionist. What if any rights will your client have?

Before examining the legal issues created by the destruction of the vehicle, let's examine just what has been lost as a result of the destruction.

At the outset, one must know a little about accident reconstruction. Determination of the point of impact requires one to visualize what occurs at the fateful moment that two motor vehicles collide.

Assume that two vehicles strike each other head on. At the height of the accident sequence, the two vehicles will actually penetrate each other to a certain degree. This will cause the two vehicles to expand or swell to a certain extent and thereafter contract as a result of the resiliency of the materials involved. The point where this maximum penetration occurs is commonly referred to as the point of impact, although it really is not. Maximum penetration occurs milliseconds after the initial impact. If, and only if, the vehicles are proceeding directly at one another, will the point of maximum penetration approximate the point of impact. If, however, the impact occurs tangentially, there is considerable room for error.

The point of maximum penetration is that essential moment in time that the unified object is most dense. This will generally mean that if one is perceptive, he or she can locate a gouge, rut or deep scrape in the pavement which was created at the point of maximum penetration. This is what the "two week reconstructionist" can do. This point will be documented in terms of its distances from fixed landmarks. This same individual can also measure and document skidmarks leading from the point of impact to the eventual resting place of the vehicles.

The accident reconstructionist will then locate the wrecks and measure the damage to each. Consulting tabular materials relating to vehicular damage or utilizing a computer program such as Crush 3, he or she will attempt to determine the speeds of the vehicles immediately prior to the accident. Thereafter, by applying the speed to the point of impact, one may derive an approximation of how the accident came to be.

Most important, all General Motors passenger vehicles manufactured after 1994 contain a Sensory Data Module or SDM. The SDM is a computer which is linked electronically to the vehicle's airbag sensors. When the sensor detects abrupt vehicle deceleration, the SDM wakes up and begins to record data to a EPROM or erasable programmable memory chip. Initial versions of the module record the time between SDM initiation and airbag detonation, the maximum delta V (the change in velocity), the delta V in a frontal collision, the time between the moment the vehicles impacted and the moment of maximum delta V. Additionally, in 1999, the SDM was beefed up to include the ability to record vehicle speed, engine speed, brake switch and percent of the throttle status. Even if the vehicle pre-dates 1999 by as much as one year, these features may nonetheless be included by virtue of the fact that GM has a reputation for quietly introducing electronic enhancements prior to the announced.

Returning to our example in which the vehicle is crushed pre-indictment, the defense will be severely limited in the means through which it can reconstruct the accident, particularly pre-accident speeds. In the absence of the vehicle, all that will be left in terms of reconstruction is interpretation of roadway data such as skid marks, yaw marks and the location of the pavement gouge.

While the pavement gouge is generally an accurate indication of the point of impact, contrary to popular belief tire markings are not. If one were to lock the wheels of a moving vehicle on a smooth, straight surface such as an asphalt racetrack and continue in that mode until the vehicle comes to rest, one would be able to somewhat reliably determine the speed of the vehicle. Nevertheless, in an accident that seldom occurs. If the vehicle slows without initially locking the brakes, this will downward skew the estimate of velocity. Further, anti-lock braking systems are designed to prevent skidding. They will further decrease the reliability of estimates of speed based upon skid marks. Change in pavement surfaces may be fatal to the subject of accident reconstruction. While a change is not fatal, it is necessary to use different coefficients to account for the change.

Now, just how does this factor into destruction of a vehicle? Simply put, the nature and extent of the amount a vehicle is crushed can have a major impact upon the accuracy of accident reconstruction. Using databases compiled by the National Traffic Safety Administration, the Department of Transportation and others, a competent reconstructionist can accurately establish the vectors involved in a collision as well as accurately estimate speed.[i] When a vehicle has been destroyed, this method of analysis becomes unavailable. Further, if the data has not been retrieved from the SDM prior to destruction, this essential element is missing from the all-telling equation.

Timing is key here. If the vehicle is destroyed post-indictment, in most cases, the defendant will have no one to blame but himself if he did not forward a timely demand to inspect the vehicle. However, in the event that the vehicle is destroyed pre-indictment, the defendant may be entitled to the imposition of sanctions.

The [COMMENT1] origin of the People's duty to preserve commences with Brady v Maryland,[COMMENT2] 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194 (1963). There the Court wrote:

[T]he suppression by the prosecution of evidence favorable to any accused upon request violated due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.

id. at p. 86.


Subsequently, in United States v Agurs, 427 US 97, 106, 49 L Ed 2d 342, 96 S Ct 2392 (1976) the court added that where there is a pretrial request either for evidence that is material or if a substantial basis for claiming materiality exists, "it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge." In the same opinion, the court indicated that the definition of materiality is evidence that might affect the outcome of the trial.

Brady, a murder case, concerned existing evidence - a statement of Brady's accomplice, Boblit, admitting he, rather than Brady, strangled the decedent.

In United States v Bryant, 142 App DC 132, 439 F2d 642 (1971), on remand (DC Dist Col) 331 F Supp 927, affd 145 App DC 259, 448 F2d 1182, the court attempted to reconcile the two situations and found that such a duty existed. Implicit in his analysis was that under Brady the government must at least make "earnest efforts" to preserve evidence it has gathered (Bryant, supra, 439 F2d at 651).

Bryant concerned a defense demand for disclosure of a tape recording made by government agents of motel room conversations between the defendants and an undercover agent allegedly concerning a sale of narcotics. The prosecution claimed it lost the tape. Although neither the court nor the defense counsel knew whether or not the tape contained exculpatory evidence, it was clear the missing tape was "absolutely crucial to the question of defendant's guilt or innocence." Accordingly the court decided that:

[T]he duty of disclosure attaches in some form once the government has first gathered and taken possession of evidence. Otherwise, disclosure might be avoided by destroying vital evidence before prosecution begins or before defendants hear of its existence. Hence, we hold that before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation. Only if the evidence is carefully preserved during the early stages of investigation will disclosure be possible later.

id. at 651 (emphasis supplied).


In Bryant, the court imposed upon the government the burden of demonstrating that earnest efforts, in the form of regular procedures, had been made to preserve such evidence, holding the government accountable for its loss unless it could show that it has "promulgated, enforced, and attempted in good faith to follow rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation (id. at 652). In a footnote, the court added that:

Although there is an exception for good faith loss of evidence, there is no exception for good faith administrative decision that certain evidence is not discoverable and thus need not be preserved . . . Hence, in framing their rules for evidence preservation, investigative agencies must define discoverable evidence very broadly, including any evidence that "might" be favorable to the accused.

id. at 652, footnote 21.


Judge Wright articulated a policy to encourage fundamental fairness as the rationale behind Bryant:

Were Brady and its progeny applicable only when the exact content of non‑disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by the suppression of evidence by means of destruction rather than mere failure to reveal. The purpose of the duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence; rather, it is also to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance of investigative resources, will be exclusively in the hands of the government.

id. at 648.


In People v Kelly, 62 NY2d 516, 478 NYS2d 834, certain items of evidence consisting of cash were subsequently lost. The defense moved to dismiss, and the motion was granted. On appeal, the Court of Appeals reversed and sent the matter back to the trial court for a determination of the appropriate sanction. Key to the matter at bar are comments made by the Chief Judge relative to the obligation to preserve:

A necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made (United States v Bryant, 439 F2d 642; People v Saddy, 84 AD2d 175). Any other rule would facilitate evasion of the disclosure requirements (United States v Bryant, 439 F2d 642, 651, supra). Accordingly, where discoverable evidence gathered by the prosecution or its agent is lost, the People have a heavy burden of establishing that diligent, good‑faith efforts were made to prevent the loss (id.; see, also, United States v Augenblick, 393 US 348, 355‑356). Otherwise, sanctions will be imposed.

id. at 520.


In People v Martinez, 71 NY2d 937, 528 NYS2d 813, the Court of Appeals again dealt with the pre-indictment destruction of evidence, this time in the context of a Rosario violation. Here, the court was again explicit as to the pre-indictment obligations of the People:

Just as the People have a duty to produce Rosario material they also have a correlative "obligation to preserve evidence until a request for disclosure is made" (People v Kelly, 62 NY2d 516, 520; see also, United States v Bryant, 439 F2d 642; People v Saddy, 84 AD2d 175). Thus, it is no answer to a demand to produce that the material has been lost or destroyed. If the People fail to exercise care to preserve it and defendant is prejudiced by their mistake, the court must impose an appropriate sanction. The determination of what is appropriate is committed to the trial court's sound discretion, and while the degree of prosecutorial fault may be considered, the court's attention should focus primarily on the overriding need to eliminate prejudice to the defendant.

(People v Kelly, supra, at 520‑52l).


Perhaps the strongest judicial pronouncement concerning the obligation of the People to preserve pre-indictment evidence which would otherwise be discoverable comes from People v Saddy, 84 AD2d 175, 445 NYS2d 601 (2nd Dept, 1981). In discussing the loss of tape recordings, the court observed:

Under Brady v Maryland the prosecution is required to disclose, in advance of trial, evidence which is favorable to the accused. In order to safeguard the defendant's rights under Brady, the prosecution, as well as law enforcement officials, are under a duty to diligently preserve all materials which may be subject to disclosure (United States v Bryant, 439 F2d 642). It is not for the prosecution, or the police, to select which materials should be preserved, and which should be destroyed. Were law enforcement officials empowered to pick and choose the materials deemed worthy of preservation, then the due process rights guaranteed by Brady would be shallow indeed; Brady could be circumvented by merely destroying evidence unfavorable to the prosecution before it is demanded by the defendant (see United States v Bryant, supra, p 648).

id. at 940.


In People v Marr, 177 AD2d 964, 577 NYS2d 1008 (4th Dept, 1991), the police accidentally destroyed a video tape of the defendant after his arrest for Driving While Intoxicated. The videotape showed the defendant during the course of his unsuccessful attempts to perform the test. The trial court refused to dismiss the indictment, but instead, as a sanction refused to permit the People to offer any evidence of the fact that the defendant refused to submit to the test. On appeal he claimed that the charges should have been dismissed. Holding that imposition of the sanction was proper the Fourth Department observed:

[I]n our view, the court did not abuse its discretion in precluding the prosecution from introducing evidence at trial of defendant's alleged refusal to submit to the breathalyzer test as its sole sanction for the prosecution's failure to preserve the videotape.

id. at p. 964.


While Appellate Courts continuously refuse to impose the extreme sanction of dismissal, the case law is replete with the imposition of sanctions of one sort or another.

Crucial to the argument of an allegedly aggrieved defendant is the fact that destruction prior to indictment robs the defendant of any right to statutory discovery (CPL 240.20; People v Perrotti, 157 Misc 2d 927; People v Ramirez, 129 Misc 2d 112; People v Arturo, 122 Misc 2d 1058). Does this mean that the defendant may turn to an ex parte judge and attempt to secure an Order permitting discovery or at least preventing destruction of the vehicle? Probably not. In People . Hale, 167 Misc2d 872, 638 NYS2d 886 (Kings County Supreme Ct, 1996), the defendant, who had potential liability for a capital offense, sought an Order requiring the District Attorney's Office and all law enforcement agencies to preserve all evidence generated, made or collected during a pre-indictment investigation. The court refused to issue such an Order, finding that the defendant had no right to such relief. Nevertheless, that does not end the matter at bar. The rationale employed by the court was that the People and their agents were already under an affirmative duty pursuant to Brady, Giglio and Rosario.

Contrary to the defendant's suggestion, the denial of this motion does not relieve the People of their obligation to act in good faith to preserve exculpatory evidence; additionally, it does not leave the defendant without a remedy in the event that the People fail to fulfill their obligations. Should the District Attorney's Office fail to meet its obligations to preserve exculpatory evidence or Rosario material, the defendant may request and the court may impose any necessary sanctions. (See, e.g., People v Roe, 196 AD2d 899 [providing for adverse inference charge]; People v Johnson, 184 AD2d 782 [providing for preclusion of testimony].

id. at p. 876.


Assuming that the court found that a vehicle had been destroyed in derogation of the defendant's rights prior to discovery, what is the remedy? Case law, including Kelly, make it clear that the extreme sanction of dismissal is seldom, if ever, called for. Proper examination of this issue requires an examination of precisely how the defendant has been injured. First and foremost is an argument that the destruction of the vehicle has precluded the defendant from offering any crush estimation of speed. The prejudice resulting from such an event will vary depending upon the degree to which the state has evaluated the accident. If they have reliably measured pavement and scene markings, including the character of the pavement or other surface, the prejudice may not be as severe. Primarily the prejudice will arise from the fact that the angles of the vehicles at the moment of collision may no longer be determined. On the other hand, if the state has done a poor job of measuring and preserving the site investigation, it may well be argued that the destroyed vehicle may be the only means through which to determine or at least confirm the state's estimate of speed. It appears, therefore, that the fairest sanction that may be imposed is preclusion of all testimony regarding speed of the vehicle.

Recently, the Fourth Department dealt with this issue. In People v John, C AD2d C, 732 NYS2d 505, the defendant argued that the actions of the People in auctioning his vehicle off before he was indicted violated the duty to preserve. Although the factual allegations given in the memorandum opinion are sparse, it seems that identification of the driver prior to being stopped was an issue. The decision makes mention of the fact that the missing evidence was significant because the entire defense was that the windows of the vehicle were tinted to such a degree that the officers could not have seen who was driving. It also appears from the decision that there was no other way for defendant to prove the degree of tint.

Before proceeding to the holding, three salient features stand out in John. First, the vehicle belonged to the defendant making it discoverable as property obtained from the defendant (CPL 240.20[1][f]; see, People v Brown, 104 Misc2d 157, 162-163, 427 NYS2d 722). Secondly, it was in the possession of the People. Third, it was destroyed by the People who auctioned it off. Notwithstanding this procedural posture, the holding was comparatively broad. The Fourth Department commenced by recognizing that [a] necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made (People v Kelly, 62 NY2d 516, 520, 478 NYS2d 834, 467 NE2d 498), and thus "[t]he People have an affirmative obligation to preserve all discoverable evidence within their possession" (People v Hernandez, 285 AD2d 559, 727 NYS2d 899). Additionally, the court noted that there was a high degree of prosecutorial fault because the loss was intentional; the People auctioned off the vehicle before defendant was indicted, thereby precluding any discovery by defendant.

On the issue of the sanction to be imposed, the court observed that:

To determine the appropriate sanction, the trial court must consider a number of factors, including the significance of the missing evidence in the context of the available proof, and the degree of prosecutorial fault, particularly whether the loss was intentional or inadvertent (People v Pfahler, 179 AD2d 1062, 1063, 579 NYS2d 520; see, People v West, 203 AD2d 947, 948, 611 NYS2d 401, lv. denied 84 NY2d 834, 617 NYS2d 155, 641 NE2d 176; People v Okehoffurum, 201 AD2d 508, 509, 607 NYS2d 695, lv. denied 83 NY2d 913, 614 NYS2d 395, 637 NE2d 286, 83 NY2d 970, 616 NYS2d 23, 639 NE2d 763).


Recognizing that the vehicle was the only means through which the defendant could carry the day on the issue of the degree of tint, the court found the issue to be material.

Ultimately, however, the court found the error to be harmless:

Thus, the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the court's error in failing to impose sanctions such as a missing evidence charge (see, People v Crimmins, 36 NY2d 230, 242, 367 NYS2d 213, 326 NE2d 787).


Another interesting issue in John, is that it is one more in an ongoing series of decisions which recognize the somewhat loosened standards for Miranda. Again, the decision is not specific, but it does set forth the argument raised by the defendant that the Miranda warnings were not recited verbatim. It went on to hold that:

Contrary to defendant's contention, Miranda warnings need not be recited verbatim; all that is required is that the "warnings given reasonably apprise[ ] the defendant of his rights" (People v Parker, 258 AD2d 479, 479-480, 682 NYS2d 922, lv. denied 93 NY2d 877, 689 NYS2d 439, 711 NE2d 653; see, People v Snider, 258 AD2d 929, 930, 685 NYS2d 538, lv. denied 93 NY2d 979, 695 NYS2d 65, 716 NE2d 1110).


[i].An outstanding explanation of the history and development of the Crush databases as well as interpreting damaged data can be found in Tumbas and Smith, "Measurement Protocol for Quantifying Vehicle Damage From an Energy Basis Point of View," Paper 880072 presented at the International Congress & Exposition, Detroit, Michigan, February, 1988.

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