{footnote}Check United States v. Esposito, 771 F.2d 283 (7th Cir. 1985)(doctrine not applicable to witnesses).{/footnote}

Adverse Inference Allowed

Where relevant evidence has been intentionally destroyed by a party, an adverse inference may be drawn that the evidence would have been unfavorable to that party.{footnote} [3874] Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76 (3d Cir. 1994); Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995); Beil v. Lakewood Engineering and Nfg. Co., 15 F.3d 546 (6th Cir. 1994)(adverse inference drawn against plaintiff); Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269 (7th Cir. 1993)(adverse inference allowed where employer aware of possibility of suit destroys pertinent files) Akiona v. United States, 938 F.2d 158 (9th Cir. 1991), cert. denied 503 U.S. 962, 112 S.Ct. 1567, 118 L.Ed.2d 212; Eaton Corp. v. Appliance Valves Corp., 790 F.2d 874 (Fed. Cir. 1986).
            Kellensworth v. State, 276 Ark. 127, 130, 633 S.W.2d 21, 23 (1982); In re Holmes’ Estate, 98 Colo. 360, 364, 56 P.2d 1333, 1335 (1936); State v. Mullings, 202 Conn. 1, 17, 519 A.2d 58, 67 (1987); Collins v. Throckmorton, 425 A.2d 146 (Del. 1980); Williams v. Washington Hospital Center, 601 A.2d 28, 33 (D.C. 1991); Bennett v. Associated Food Stores, Inc., 118 Ga. App. 711, 716, 165 S.E.2d 581, 585 (Ct. App. 1968); State v. Lambert, 501 N.W.2d 64, 67 (Iowa Ct. App. 1993); Arthur v. Commonwealth, 307 S.W.2d 182, 184 (Ky. Ct. App. 1957); Williams v. General Motors Corp., 607 So.2d 695, 697-98 (La. Ct. App. 1992); Kammerer v. Sewerage & Water Board of New Orleans, 633 So.2d 1357, 1358 (La. Ct. App. 1994), appeal denied, 639 So.2d 1163 (La. 1994); Miller v. Montgomery County, 64 Md. App. 202, 214, 494 A.2d 761, 768 (Ct. Spec. App. 1985); Wellman v. Carter, 286 Mass. 237, 251, 190 N.E. 493, 499 (1934); Trupiano v. Cully, 84 N.W.2d 747 (Mich. 1957); Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990); Washington v. State, 478 So.2d 1028, 1032 (Miss. 1985);  Baugher v. Gates Rubber Co., 863 S.W.2d 905, 907 (Mo. Ct. App. 1993); Krueger v. North Am. Creameries, 75 N.D. 264, 273, 27 N.W.2d 240, 244 (1947); Arnold v. J.F. Pritchard & Co., 399 P.2d 481, 484 (Okla. 1964); Whitney v. Canadian Bank of Commerce, 232 Or. 1, 4, 374 P.2d 441, 442 (1962); Haas v. Kasnot, 371 Pa. 580, 584, 92 A.2d 171, 173 (1952); Wisconsin Motor Corp. v. Green, 224 S.C. 460, ___, 79 S.E.2d 718, 720 (1954); Thurman-Bryant Elec. Supply Co. v. Unisys Corp., 1991 WL 222256 (Tenn. Ct. App. 1991); Murcphy v. Reynolds, 31 Tenn. App. 94, 99, 212 S.W.2d 686, 689 (Ct. App. 1958); Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex. Ct. App. 1993); Hoier v. Noel, 199 Va. 151, 154, 98 S.E.2d 673, 675 (1957); Pier 67, Inc. v. King County, 89 Wash. 379, 385, 573 P.2d 2, 5 (1977); Jagmin v. Simonds Abrasive Co., 61 Wis.2d 60, __, 211 N.W.2d 810, 821 (1973).{/footnote}  No adverse inference is allowed where the loss or destruction was merely negligent, accidental,{footnote} [3875] Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995)(adverse inference properly refused where employee’s personnel file apparently lost); Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995); Hayes v. Coca Cola Bottling Co., 39 Ill. App. 39, 350 N.E.2d 20 (1st Dist. 1976).{/footnote} or for an innocent purpose.{footnote}Berkovich v. Hicks, 922 F.2d 1018 (2d Cir. 1991)(trial court in false arrest case properly excluded evidence that police officer discarded log book, when evidence suggested this was done as the officer cleaned out his locker after being discharged).{/footnote} On the other hand no finding of bad faith is required.{footnote}Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995)(finding of bad faith sufficient but not necessary for adverse inference); Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993)(notice of potential relevance to litigation sufficient).

Check S.C. Johnson & Son, Inc. v. Louisville & N.R.R., 695 F.2d 253 (7th Cir. 1982).{/footnote}  All that is required that the party responsible for the destruction was aware of the pending or potential litigation, was aware of the relevance of the evidence, and acted intentionally in destroying the evidence.{footnote}Blinzler v. Marriott Intern., Inc., 81 F.3d 1148 (1st Cir. 1996)(missing logs of security officer and of outgoing calls permitted adverse inference); Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995).{/footnote} Whether to allow an adverse inference is a matter for the trial court’s discretion.{footnote}Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995).{/footnote}  It has been held that the adverse inference is not sufficient, standing alone, to defeat a motion for summary judgment.{footnote}Walker v. Herke, 20 Wash. 2d 239, 249-50, 147 P.2d 255, 260 (1944).{/footnote}

Secondany Evidence.   Even where an adverse inference has been allowed, where a party can explain the loss or destruction of the missing evidence, the court may allow it to offer secondary evidence on the matter at issue.{footnote}Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995).{/footnote}

Exclusion of Expert Testimony

Where a lighter which was the subject of a product liability suit was allegedly contaminated by the plaintiff’s expert and the plaintiff’s counsel, the court held that the expert’s testimony would nonetheless be allowed because the lighter could still be examined and found to be authentic.{footnote}Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993).{/footnote}

Criminal Cases

If the government has destroyed evidence relevant to a criminal case, the court must examine whether the destruction was bad faith, whether the evidence was material, and whether the destuction of the evidence was prejudicial.{footnote} [3883]Arizona v. Youngblood, 102 L.Ed.2d 281, 109 S. Ct. 333 (1988); United States v. Laurins, 857 F.2d 529 (9th Cir. 1988).
            Commonwealth v. Gomes, 526 N.E.2d 1270, 1281 (Mass. 1988) (finding no prejudice in failure to photograph results of blood tests for later examination because laboratory notes produced).
Check 102 L.Ed.2s 1041 (Annot.)
CHECK State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964){/footnote}  While the defendant need not prove that the evidence would have been exculpatory, he must establish a reasonable basis for the claim that the evidence would have been favorable.{footnote} [3884]Commonwealth v. Gomes, 526 N.E.2d 1270, 1281 (Mass. 1988) (finding no prejudice in failure to photograph results of blood tests for later examination).{/footnote}

  Police have a duty to preserve potentially exculpatory evidence when the evidence is "obviously material."{footnote} [3885]State v. Perez, 687 P.2d 1214, 1218 (Ariz. 1984).{/footnote} Due process requires that the police preserve evidence which "possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."{footnote} [3886]California v. Trombetta, 467 U.S. 479, 489 (1984).
            Arizona v. Tinajero, 1997 Ariz. App. LEXIS 3 (January 9, 1997) (no error in failure to give adverse inference instruction where defendant’s truck destroyed after accident).
{/footnote}
 
Evidence Used to Convict.  Where evidence relevant to the defense of a criminal prosecution has been destroyed by the government, dismissal is only appropriate where there is a showing of bad faith,{footnote} [3887]CHECK Commonwealth v. Gliniewicz, 398 Mass. 744, 749 (1986) ("defendants received no notice of the impending tests, and thus were not able to have their own expert present to observe and potentially to refute the subjective aspects of the testing").
 {/footnote} even if the evidence was relied upon to obtain the conviction.{footnote}Jones v. McCaughtry, No. 90-C-183-C (W.D. Wis. 1/24/91) 1991 WL 195193; United States v. Dougherty, No. 89-CR-9-C (W.D. Wis. 5/25/89).  1989 WL 253823{/footnote}

Bibliography

Jamie S. Gorelick et al., Destruction of Evidence (1989).
Note, [Spoliation of Evidence?], 18 Am. J. of Trial Advocacy 449 (1994).