State v. Rory David Revels, 2021AP1185-CR, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court held the police violated Revels’s due process rights by failing to preserve the footage from the squad car camera and body camera of the officer who stopped Revels. The court of appeals reverses, holding the circuit court’s conclusions aren’t supported by the record.
Under Youngblood v. Arizona, 488 U.S. 51 (1988), a defendant’s due process right to the preservation of evidence is violated if the police: 1) fail to preserve evidence that is apparently exculpatory; or 2) act in bad faith by failing to preserve evidence that is potentially exculpatory. 488 U.S. at 57-58. Failure to preserve evidence that is merely potentially exculpatory doesn’t violate due process unless the defendant shows bad faith on the part of the police, which requires proof that: 1) the police were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and 2) they acted with official animus or made a conscious effort to suppress exculpatory evidence. Youngblood, 488 U.S. at 58. Wisconsin adopted the Youngblood standard in State v. Greenwold, 181 Wis. 2d 881, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I), and State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II).
The Youngblood/Greenwold test has been widely and aptly criticized for erecting insurmountable hurdles for defendants, but the supreme court rejected challenges to it in State v. Luedkte, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592. So we’re stuck with it for now, and Revels’s claims founder on it. The court of appeals decision is long, with lengthy recitation testimony and the contents of police reports; we’ll give only the barest summary here. If you are litigating a similar issue, a thorough reading of the decision may help you fashion your arguments and make it clear what you’re up against.
Meyer, the officer who stopped Revels and came to suspect he was driving while intoxicated, turned the investigation over to the back-up officer, Smith. After arresting Revels, Smith permanently saved his body camera footage but mistakenly failed to save the footage of Meyer’s body and squad cameras. Revels filed a motion to dismiss based on the failure to preserve the evidence and the circuit court granted the motion. (¶¶3-12).
The circuit court found that Meyer’s squad cam footage was potentially exculpatory, but the court of appeals holds the record doesn’t support that conclusion because the circuit court itself said that it wasn’t clear what the video would have shown and therefore Revel’s hasn’t proven it’s potential exculpatory value. (¶¶19-26). As for Meyer’s body cam footage, the circuit court found that to be apparently exculpatory; but once again the circuit court’s own statements about the unknown content of the video show the record doesn’t support that conclusion. (¶¶42-51). Moreover, even if the record did support that conclusion, there was comparable evidence to make up for Meyer’s body cam—namely, Smith‘s body cam. Smith had contact with Revels shortly after Meyer did, and so his preserved body cam recording provides a video that was close in time to Meyer’s and provides basically the same evidence. (¶¶54-57, citing State v. Munford, 2010 WI App 168, 21, 330 Wis. 2d 575, 794 N.W.2d 264).
Finally, even if both the squad cam and body cam from Meyer were potentially exculpatory, Revels didn’t prove bad faith under the Youngblood/Greenwold standard. The circuit court found that both Meyer and Smith failed to comply with their department’s standards for preserving the evidence, but didn’t “engage” with the bad faith standard, and nothing about the officers’ negligence in preserving all the relevant videos shows that either Meyer or Smith acted with official animus or made a conscious effort to suppress exculpatory evidence. (¶¶28-41).
What is frustrating is that none of these cases defines the key terms of art “apparently” versus “potentially” exculpatory.
“Potentially useful” evidence is evidence that “was simply an avenue of investigation that might have led in any number of directions.” Greenwold I, 181 Wis. 2d at 885, citing Youngblood, 488 U.S. at 56 n.*, 109 S.Ct. at 336 n.*. This is the kind of evidence “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id., citing Youngblood, 488 U.S. at 57, 109 S.Ct. at 337.
In contrast, apparently exculpatory evidence is evidence “that might be expected to play a significant role in the suspect’s defense.” Trombetta, 467 U.S. at 488. The lost evidence must
(1) “possess an exculpatory value that was apparent to those who had custody of the evidence … before the evidence was destroyed,
(2) and…be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”
State v. Oinas, 125 Wis.2d 487, 490, 373 N.W.2d 463 (Ct. App. 1985) (citing Trombetta).