The State has a duty to preserve evidence in its possession in a criminal case. When it fails to do so, consequences can range from simply a corrective jury instruction, to exclusion of some of the remaining evidence, or even dismissal of the criminal charges. In the recent case of State v. Merriman, M2011-01682-CCA-R3-CD (Tenn.Crim.App 2-17-2012), the Tennessee Court of Criminal Appeals upheld a trial court’s dismissal of a DUI case where the State lost the digital video recording of the pursuit and stop.

In considering a remedy for the State’s negligent loss or destruction of evidence, a trial court must consider 1) the degree of negligence involved; 2) the significance of the lost or destroyed material in light of the value of secondary or substitute evidence available; and 3) the sufficiency of the other remaining evidence. State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999).

In the Merriman case, the police simply lost the digital recording of the stop and pursuit, which led to the charges in question. The trial court found this significant enough to warrant dismissal of the charges against the Defendant. The State appealed the ruling. The State argued that the standard of appellate review on this issue should be de novo. The Defendant argued it should be reviewed under an abuse of discretion standard. The Court of Criminal Appeals concluded the abuse of discretion standard was the proper standard of review and, applying that standard, upheld the trial court ruling.

This case does not create a general rule that lost video must result in dismissal of DUI charges. That was the result in this case. But a trial court must consider the particular circumstances of any individual case under the Ferguson standard. If the trial court had applied the Ferguson criteria in this case and declined to dismiss the charges, that ruling also may have been upheld under a standard of review of abuse of discretion. The Merriman case allows trial courts wide discretion in handling issues of lost or destroyed evidence.

For advice concerning a particular set of facts where evidence in possession of the State may have been lost or destroyed, contact The Lanzon Firm.