Prosecutorial Misconduct and Spoliation

Prosecutorial Misconduct and Spoliation

Cases every criminal lawyer needs to know:  Brady v. Maryland   Kyle v. Whitley  Giglio v. United States  Napue v. Illinois  Arizona v. Youngblood

In this post, I provide links to opinions and discussions on prosecutorial misconduct, including the subornation of perjury, Brady violations, and spoliation of evidence.  Interestingly, in the civil law, the remedies for spoliation seem more defined; on the criminal side, the analysis is one of due process.

I successfully represented clients in having a federal government’s writ of execution dismissed in its attempt to seize property to satisfy a two decades’ old restitution order issued in connection with a twenty year old plea to food stamp fraud.  The subject property actually belonged to my clients’ daughter, and was purchased by her via “proceeds” tenuously and remote in time to the parents’ disclosed donation of property to her years prior.  There is a section at pp. 5-7 on spoliation because the federal government admitted it had destroyed the entirety of the criminal files.  The brief is available at writing sample Lewis response to OSC re asset forfeiture  (Obviously, I’ve used this brief as a writing sample…). The court dismissed the government’s writ, without having to reach the spoliation issue.

Alex Kozinski, Chief Judge, United States Ninth Circuit Court of Appeal, wrote a remarkable article on, among other things, prosecutorial misconduct and evidentiary issues, published at CRIMINAL LAW 2.0, 44 GEO. L.J. ANN. REV. CRIM. PROC (2015). As a Shreveport attorney these days, I was moved by Kozinski’s discussion of Marty Stroud’s published mea culpa upon the exoneration of Glen Ford after exculpatory evidence came to light, a man he prosecuted onto death row.  (see id. at p.xxxvii).  Another link to article is here


The Ninth Circuit has a youtube channel.  You can watch oral arguments…online.  A must watch oral argument (in addition to those discussed by Kozinski in his article) is 13-56132 Johnny Baca v. Derral Adams, YOUTUBE (Jan. 8, 2015), watch?v 2sCUrhgXjH4.  The case was before the court on habeas review, of the second state court conviction of Baca of murder for hire.  (Notably, the purported principal, was never investigated, arrested, or tried). The first conviction was reversed because the state prosecutor suborned perjury.  At the second trial, a second state prosecutor….suborned perjury.  Somehow the California appellate courts let it slide the second time.  By the 28 minute mark, Kozinski is tearing into the state attorney general.  The Los Angeles Times published an article on the matter and a link to the argument (as does the above youtube link).

Other sources of possible interest on the issues of spoliation and/or prosecutorial misconduct:

An Epidemic of Prosecutor Misconduct, Center For Prosecutor Integrity (2013)

Prosecutor Knowingly Elicits False Testimony Robbery Conviction Thrown Out (2013).  Dow v. Virga, No. 11-17678 (9th Cir. 2013):

The prosecutor’s procurement of testimony she knew to be false and her failure to correct it constitutes prosecutorial misconduct under Napue v. Illinois. Indeed, rather than tell the Court that the detective’s testimony was false, she used it to argue the defendant’s guilty conscience to the jury.

While this ethical violation does not give rise to an automatic reversal, the 9th Circuit determined that a new trial is required for Dow because the prosecutor’s actions would have influenced the judgment of the jury. This is the “materiality” standard for Napue violations. Judge Reinhardt wrote for the 9th Circuit:

Applying de novo review, we conclude that Dow prevails on his Napue claim because he meets the materiality standard. This standard, which requires us to determine whether “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” Agurs, 427 U.S. at 103 (emphasis added), is easily met here.  The evidence against Dow was weak and the prosecutor’s arguments undoubtedly had an effect on the jury’s decision.  Thus, Dow was deprived of his constitutional right to due process of law.


This article (Spoliation of Evidence discusses remedies applied in civil cases for spoliation of evidence:

Over the years, the courts have found numerous sanctions to be appropriate for spoliation of evidence. Courts have allowed adverse inferences to be drawn from the loss or destruction of relevant evidence, dismissed cases or stricken pleadings, issued fines and applied most every other sanction available for the failure to provide discovery. A proper spoliation sanction should serve both fairness and punitive functions. Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2008). Because failures to produce relevant evidence fall “along a continuum of fault – ranging from innocence through the degrees of negligence to intentionality,” Raush v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988), the severity of the sanction must, depending on the circumstances of the case, correspond to the party’s fault.

This law review article, Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009). Available at: r/vol77/iss6/2 focuses on destruction of DNA evidence, and discusses the relevant and apposite case law.

A public defender in Wisconsin, uploaded this powerpoint (in pdf format) regarding spoliation of evidence, with possible remedies and a sample motion.

The North Carolina Indigent Defense Services uploaded the article, A Practical Guide to Brady Motions (2008) as apart of its regular training programs.

A 2009 list of successful Brady/Napue cases is available here courtesy of the Capital Defense Network.


I will, as always, be amending this post, as I find resources.


Kathryn S. Bloomfield