In Massachusetts, prosecutors have a duty to preserve exculpatory evidence. According to the Appeals Court,
It has been held that the Commonwealth has the duty not to destroy exculpatory evidence; rather, it must preserve such evidence for the defendant to inspect, examine, or perform tests on, if he so chooses.
Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 19 (1992).
But what happens if the prosecutor neglects this duty and loses evidence that’s favorable to your case?
First, the burden is on you to show a “reasonable possibility” that the missing evidence is in fact exculpatory. As stated by the Supreme Judicial Court,
A defendant seeking relief from the loss, destruction, or mishandling of potentially exculpatory evidence has the initial burden to establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the evidence would have produced evidence favorable to his cause. That is, the defendant must establish a reasonable possibility that the lost or destroyed evidence was in fact exculpatory. (Citations and quotations omitted.)
Commonwealth v. Clemente, 452 Mass. 295, 309 (2008)
If you meet this initial burden, the court must, before taking action, consider the following factors:
- The prosecution’s culpability,
- The evidence’s materiality, and
- The potential prejudice done to your case.
The trial judge has significant discretion in resolving the issue of missing exculpatory evidence. He may impose sanctions on the prosecutor or even dismiss the case entirely.
In most cases, however, the judge will simply provide an instruction to the jurors, if the case goes to trial, informing them (1) that evidence has been lost and (2) that they may presume the missing evidence was favorable for the defendant.
A copy of the standard jury instruction is attached below.
Law Office of Justin R. McCarthy 