Supreme Court of Arkansas Finds the State’s Destruction of Potentially Exculpatory Evidence After a Defense Motion to Preserve Isn’t Automatically Bad Faith

The United States Supreme Court has held that a criminal defendant’s Due Process rights are violated when the State destroys or fails to preserve potentially exculpatory evidence only if the State acted in bad faith. So, is it automatically bad faith if the State destroys or fails to preserve potentially exculpatory evidence after the defense has filed a motion to preserve such evidence? That was the question addressed by the Supreme Court of Arkansas in its recent opinion in State v. Clarks, 2024 WL 4559800 (Ark. 2024).

In Clarks, Lee Earnest Clark

was driving a vehicle when he was stopped for running a stop sign. The officer smelled marijuana and eventually searched the vehicle and found marijuana, methamphetamine, and drug paraphernalia. Marijuana and a firearm were found in a passenger’s purse. Clark was charged as a habitual offender with simultaneous possession of a controlled substance…while in possession of a firearm, possession of methamphetamine with purpose to deliver, possession of a firearm by certain persons…, possession of marijuana with purpose to deliver, and possession of drug paraphernalia.

Thereafter,

Clarks filed a motion for discovery that included a preservation of evidence request. Later, upon learning the State did not preserve mobile video recordings and body-worn camera video footage (video) evidence, Clarks filed a motion to dismiss the charges.

In response, the State admitted that it did

not have the video. It stated law enforcement’s practice is to retain video for sixty days following an arrest, then it is deleted to make room for more storage. An assigned investigator must retrieve the video before the time expires, and this failed to occur. 

The circuit found that this was bad faith destruction that violated the Due Process Clause. The state supreme court disagreed, ruling that

The circuit court erred as a matter of law when it found that the unintentional deletion of the video, executed as part of the State’s routine data management, was done in bad faith….Bad faith is intentional, performed with a sinister motive. Unintentional or negligent omissions, with no record of misconduct or animus, cannot constitute bad faith. Nor does the existence of Clarks’s pending discovery motion change *8 the character of the State’s failure to preserve the evidence or negate the bad-faith requirement….

The facts were undisputed that the evidence was destroyed unintentionally. While the parties may dispute what occurred at the time of the traffic stop and arrest, there is no evidence that either party watched the video or that its destruction was anything other than unintentional. As a matter of law, we hold that the State’s failure to preserve evidence after Clarks filed a motion to preserve was not per se bad faith.

-CM