Under certain circumstances, a fact-finder either must presume or may infer that missing, lost, or destroyed evidence operates against the party who misplaced, destroyed, or failed to produce it. An adverse presumption arises from intentional and fraudulent conduct, while an adverse inference is permissible under M Civ JI 6.01(d) for a failure to produce evidence with no reasonable excuse. Ward v Consol Rail Corp, 472 Mich 77, 84-86 (2005). “A jury may draw an adverse inference against a party that has failed to produce evidence only when: (1) the evidence was under the party’s control and could have been produced; (2) the party lacks a reasonable excuse for its failure to produce the evidence; and (3) the evidence is material, not merely cumulative, and not equally available to the other party.” Ward, 472 Mich at 85-86. See also Komendat v Gifford, 334 Mich App 138, 150 (2020) (quotation marks and citation omitted) (holding “a spoliation instruction is warranted if the evidence that is the subject of the instruction is (1) material, (2) not merely cumulative, and (3) not equally available to the opposite party”). In Ward, the defendant introduced evidence that missing evidence was disposed of as part of a routine business practice, thereby rebutting the presumption that the missing evidence was intentionally made unavailable. Ward, 472 Mich at 82. The Court held that “the trial court erred when it instructed the jury that it could draw an adverse inference, but failed to explain that no inference should be drawn if [the jury concluded that the] defendant had a reasonable excuse for its failure to produce the evidence.” Id. at 80.
“‘Even when an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action.’” Pugno v Blue Harvest Farms, LLC, 326 Mich App 1, 25 (2018), quoting Brenner v Kolk, 226 Mich App 149, 162 (1997) (“the trial court did not abuse its discretion by providing [a] spoliation instruction” where defendant’s “failure to preserve the pallets [that fell and struck plaintiff] deprived plaintiff of the opportunity to inspect a possible cause of the collapse”).
A party may be sanctioned for spoliation of evidence even though the evidence was not technically lost or destroyed. Bloemendaal v Town & Country Sports, Inc, 255 Mich App 207, 212 (2002). In Bloemendaal, the plaintiff’s experts failed to conduct a test on a piece of evidence during disassembly “that was essential to their ultimate theory of liability.” Id. at 214. The Court concluded that failure to conduct the test amounted to a failure to preserve the evidence. Id. Because the defendants were precluded from conducting their own tests (which could only be done while the evidence was being disassembled), they were severely prejudiced and dismissal was appropriate where the trial court considered “other remedies and concluded that they were insufficient to overcome the prejudice[.]” Id. at 214-215 (the Court noted that even though dismissal is a possible sanction, it is a drastic step that should be taken cautiously and only after evaluating all other available options on the record).
The failure to preserve or produce material exculpatory evidence violates a defendant’s due process rights. Arizona v Youngblood, 488 US 51, 57 (1988). “To warrant reversal on a claimed due process violation involving the failure to preserve evidence, ‘a defendant must prove that the missing evidence was exculpatory or that law enforcement personnel acted in bad faith.’” People v Richards, 315 Mich App 564, 581 (2016), rev’d on other grounds 501 Mich 921 (2017),1 quoting People v Hanks, 276 Mich App 91, 95 (2007). The defendant bears the burden of showing that the evidence was exculpatory or that the police acted in bad faith. Id. It is the trial court’s responsibility, not the jury’s, to determine whether the missing evidence was destroyed in bad faith. People v Cress, 466 Mich 883 (2002).
The defendant failed to demonstrate that the evidence was exculpatory where the evidence at issue was saliva that only could have been subjected to testing. Richards, 315 Mich App at 582-583. Accordingly, because the defendant could only show that the evidence was potentially exculpatory, he was required to demonstrate bad faith on the part of the officers who failed to preserve the evidence. Id. The defendant failed to demonstrate bad faith where the prison’s standard operating procedures for collecting saliva evidence were followed,2 and the prison lacked the equipment to preserve saliva for DNA testing purposes. Id. at 583-584.
The defendant was not deprived of due process where the police failed to preserve a balloon that contained heroin. People v Dickinson, 321 Mich App 1, 15 (2017). The defendant argued that the balloon should have been preserved “because DNA testing [of the balloon] may have provided a basis for the jury to doubt that she possessed and delivered the heroin.” Id. at 16-17. However, the “defendant concede[d] that the balloon was only ‘potentially exculpatory.’” Id. at 17. Further, the record contained no evidence that the police destroyed the balloon in bad faith; rather, the balloon was disposed of “according to standard police protocol for processing such evidence.” Id. “Moreover, the overwhelming evidence at trial established that defendant possessed and passed the heroin to [a prisoner]. Consequently, even if the balloon had been tested for DNA and someone else’s DNA (rather than defendant’s) was found on it, the test results would have made no difference to the outcome of the case.” Id.
“Absent intentional suppression or a showing of bad faith, a loss of evidence that occurs before a defense request for its production does not require reversal.” People v Jones, 301 Mich App 566, 580 (2013). “The defendant bears the burden of showing that the evidence was exculpatory or that the police acted in bad faith.” Id. at 581. In Jones, 301 Mich App at 569, the police found marijuana in the defendant’s car following a traffic stop. The defendant argued that she was “entitled to dismissal of the charges because the police destroyed the recording of her roadside stop, and that the destruction amounted to a violation of due process and prevented her from presenting a meaningful defense.” Id. at 580. However, it was police department policy to automatically destroy all traffic stop recordings six months after the date of the traffic stop, and the defendant was arrested after the recording had already been destroyed. Id. at 581. Further, the defendant “failed to present any evidence of bad faith on the part of the police department and failed to provide any evidence that the recording would have been exculpatory.” Id. Accordingly, the trial court did not abuse its discretion in denying the defendant’s motion to dismiss. Id.
1 For more information on the precedential value of an opinion with negative subsequent history, see our note.
2 Testimony was presented that the prison’s procedure for collecting saliva evidence was to photograph the saliva on the person’s skin or clothing and then have the person clean off the saliva as quickly as possible to prevent the transfer of communicable diseases. Richards, 315 Mich App at 583-584. Testimony also established that clothing is not collected when it has small amounts of saliva on it, such as the clothing at issue in Richards. Id. at 584.