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The State’s Good Faith Obligation To Preserve Evidence In Its Control During A Criminal Prosecution Is Not Offset When Evidence Is Destroyed “Without Bad Faith”

June 16, 2020

STELIOS STOUPAKIS reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division, which reversed a Defendant’s conviction because the trial court did not consider the prejudice to the Defendant caused by the destruction of evidence by the arresting police department.

The Appellate Division reasserted the fundamental principle that when evidence has been destroyed, the Court must determine whether the Defendant was prejudiced by the destruction of the evidence.  If so, such prejudice outweighs the argument that the evidence had been destroyed “without bad faith.”

Here the Defendant’s wife telephonically obtained a Temporary Restraining Order (“TRO”) pursuant to the Prevention of Domestic Violence Act (“PDVA”), based on an alleged incident that occurred in the home.  As required by statute, the alleged victim’s telephonic testimony for the TRO was recorded.  Defense counsel requested the electronically-recorded testimony or the judge’s longhand notes (also required by statute).  However, consistent with its record retention policy, the recording was destroyed by the police department, and the judge who heard the application for the TRO did not take any longhand notes.  The Defendant moved to suppress the evidence obtained from the search, arguing that the search warrant could not be valid without the availability of the phone recording.  The motion judge denied the application, and the Defendant pled guilty to a second-degree weapons charge reserving his right to appeal. 

The Defendant appealed his conviction to the Appellate Division, arguing that he was entitled to reversal of his conviction because the warrant was invalid, the search was warrantless and suppression of the evidence should have been granted.  The Appellate Division agreed with the Defendant’s arguments and reversed judgment and vacated the conviction.  The Appellate decision recognizes that although the matter began as a domestic violence case, the State’s obligation arose to preserve evidence once criminal charges were filed against the Defendant.  The Appellate Division further noted that “the procedural requirements for a telephonic search warrant are fundamental to the substantive validity of the warrant.”  The Appellate Division acknowledged that the trial court did not find any bad faith on the State’s part with respect to the destruction of the recording which supported the search warrant.  However, the Appellate Division asserted that the trial judge did not factor in the State’s obligation to preserve evidence in cases that it prosecutes criminally, nor did the trial judge consider the prejudicial effect caused to the Defendant by the destroyed evidence.   

Please contact Stelios Stoupakis if you have any questions or need assistance in connection with this subject.