Due Process Violations and Potentially Exculpatory Evidence

Our Constitutionally Guaranteed Access to Evidence

Any criminal case is going to involve evidence. It is an area of law that every law student must endure in law school and use throughout his or her career. Evidence in criminal cases can be broadly placed into two broad categories: inculpatory (bad for the defendant) and exculpatory (good for the defendant). Now, when a person is arrested, they are arrested by law enforcement officers who work for the State. Their reports are forwarded to the State Attorneys Offices for prosecution. Each case is assigned to an Assistant State Attorney, who is responsible for prosecuting that case. Logically, would you think the evidence in the case will be good for you (as the defendant) or bad for you? Obviously, bad – or you wouldn’t be charged with the crime. The problem I hear from a lot of clients in this area is that there is more evidence that is good for them – but the police did not put any of that good (or exculpatory) evidence in their report. Here’s one small example: Police put in their report that they stopped a car for suspicion of DUI. The car was swerving and couldn’t maintain a single lane. They must be under the influence. But the police do not put in the report that you were obeying the speed limit, that you stopped for the red light, or that when they put their lights and sirens on that you pulled over immediately and properly. In all likelihood, none of that exculpatory evidence will make it into the police report. It’s up to you and your lawyer to bring all that out.

Next, what if there is more than just the observations of the officer? For example, a case in which the police searched your computer and found incriminating (or inculpatory) evidence. A computer search done by law enforcement will most likely involve a computer scientist or a computer forensics analyst. This person will generate a report with their findings. The defense has a right to review the evidence and challenge those findings with our own expert witness.

The Due Process Clause of the Fourteenth Amendment requires the State to preserve and turn over to the defense any evidence they believe might be expected to play a significant role in the suspect’s defense. But, in the above scenario, what if the State lost or destroyed the computer before the defense could have the opportunity to inspect it? Computer forensics can be very complicated. Most pictures (or any files for that matter) on your computer contained metadata. Metadata is data about data. In other words, if you download a picture online that photo is data. But there is underlying data besides that photo that is saved and stored on your computer’s hard drive. For example, the date and time you downloaded the picture, when and how many times you looked at that picture, what user account on your computer accessed it, what wireless router it was downloaded from, etc. You can see some of this metadata on your PC’s Windows Explorer or on your Mac’s Finder programs. It is this data that the State can use against you. On the other hand, it can also be used in your defense. Therefore, failure of the State to preserve that information can result in a suppression of it against you. What this could end up meaning for you is dismissal of the charges. Contact an attorney to learn more.


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