It happens. The defense becomes aware of evidence that may be of assistance either as a Brady disclosure, under the broad discovery rules, or for investigative purposes–but the Government claims it is lost. By negligence? Deliberately? What can be done?
Depending on the nature of the lost or destroyed evidence, you can ask for a mistrial or dismissal. This is especially important if you can prove the evidence would be substantially helpful in presenting your case or contradicting the prosecution’s case. However, before that, the military judge must use less severe remedies if possible. One remedy is to exclude testimony related to that evidence or, more likely, instruct the members (jury) that they may draw an adverse inference that the lost or destroyed evidence would have information favorable to the defense. Let’s look at that more closely. The military defense lawyers at Cave & Freeburg write from experience in these situations at trial and on appeal.
The military judge may draw, or permit the members to draw, an adverse inference when the government loses, destroys, or suppresses evidence that should have been available to the defense. The Court of Appeals for the Armed Forces has recognized that an adverse inference instruction is an appropriate curative measure for improper destruction of evidence. United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002). The remedy fits especially well where the missing evidence would have helped the defense test the government’s proof or present an alternative explanation for the charged conduct.
Courts-martial already treat discovery broadly and require disclosure of exculpatory and impeachment material. R.C.M. 701; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999). When the government’s failure deprives the defense of materially helpful evidence, the military judge may tailor relief to cure the prejudice rather than automatically dismiss the case. United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999). An adverse inference instruction serves that function by allowing the factfinder to infer that the missing evidence would have been unfavorable to the party responsible for its absence.
The remedy also accords with the military justice system’s truth-seeking function. The Military Rules of Evidence direct courts-martial to administer proceedings fairly and to ascertain the truth. Mil. R. Evid. 102 When the government’s conduct prevents full adversarial testing of the evidence, an adverse inference instruction helps restore the balance. It does not shift the burden of proof; it simply allows the factfinder to account for the government’s evidentiary failure.
At the same time, the military judge should tailor the instruction to the circumstances. The judge should consider the degree of prejudice, the culpability of the party responsible for the loss, and whether a less severe remedy will suffice. Where the lost evidence goes to a central issue and no adequate substitute exists, the judge may grant stronger relief, including abatement. R.C.M. 703; United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. 2015). But where the prejudice is narrower, an adverse inference instruction often provides a proportionate and effective remedy.
In short, courts-martial may use an adverse inference instruction to address evidentiary loss or destruction, preserve fairness, and protect the accused’s ability to present a complete defense. United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002).
Give us a call at 703-298-9562 or 917-701-8961 to discuss.