Reimagining Youngblood’s Bad Faith Requirement: Safeguarding Criminal Defendants’ Due Process Rights Through a Burden-Shifting Framework

Rita Elfarissi* October, 2024

Criminal defendants face an uphill battle when attempting to prove that the government’s loss or destruction of evidence that could have played a significant role in their defense deprived them of their constitutional due process rights. To make this showing, the defendant must prove that the government lost or destroyed the evidence in bad faith. This requirement is problematic because direct evidence illustrating the subjective intent of the government officials who lost or destroyed the evidence is unlikely to exist, and in the off chance it does, the prosecution is unlikely to freely hand it over to the defendant. Thus, short of an admission from the government that it lost or destroyed the evidence in bad faith—which is also unlikely to happen—criminal defendants face an evidentiary void that makes it extremely difficult for them to satisfy the bad faith requirement, thereby limiting their ability to obtain constitutional recourse.

This Note proposes a burden-shifting framework that seeks to mitigate this problem. This framework effectively shifts the burden of producing evidence demonstrating the prosecution’s good or bad faith to the prosecution itself—the party best situated to make this showing. In so doing, it preserves the essence of the bad faith requirement—thereby increasing the Supreme Court’s receptiveness to adopting this change—while also rectifying the evidentiary imbalance between the prosecution and the defendant, making it easier for criminal defendants to satisfy the bad faith requirement and, consequently, vindicate their due process rights.

Introduction

For over thirty years, an Ohio man fought tooth and nail for evidence that could have exonerated him from crimes he maintains he did not commit. In 1988, Melvin Bonnell was convicted of one count of aggravated burglary, one count of felony murder, and one count of aggravated murder. Bonnell received the ultimate sentence for these offenses: the death penalty. In 1995, Bonnell requested that the Cuyahoga County Prosecutor’s Office furnish him with an accounting of the physical evidence from his capital case, as required by state statute. Years passed with no accounting. Over the next decade, Bonnell persistently filed several more postconviction requests for evidence, hoping to obtain exculpatory evidence. Yet each time, he was met with similar resistance, with the prosecution repeatedly representing that it had no physical evidence from his case in its possession.¹ But that could not have been further from the truth.

In 2008, over a decade after Bonnell’s initial postconviction request for evidence, the prosecution made a sudden discovery: the jacket Bonnell wore on the night of the alleged crimes.² Given the remarkable advancements in DNA testing technology that were unavailable in 1988, the jacket held the potential of exonerating Bonnell. However, this breakthrough was clouded by a troubling discovery: The jacket suddenly bore smears of the victim’s blood that were absent at trial.³ The appearance of the smeared blood, coupled with the prosecution’s sudden discovery of the jacket and the apparent absence of all other physical evidence from Bonnell’s case, suggests that the jacket had been contaminated due to its improper storage. This introduction of foreign DNA compromised the jacket’s reliability to exonerate Bonnell through DNA testing,⁴ closing off a potential avenue for Bonnell to establish his innocence.

Also in 2008, the Ohio Court of Common Pleas recognized that the prosecution had an ongoing duty under state law to search and account for the missing evidence in Bonnell’s case.⁵ However, nearly a decade passed before the prosecution fulfilled this duty. In 2017, the prosecution finally produced an affidavit and report outlining its efforts to locate the missing.⁶ Among other things, the report revealed several instances where either law enforcement or a prosecutor “checked out” evidence from its secure location but never returned it. For example, four days before Bonnell’s trial, Prosecutor Richard Bombik checked out the gun purported to be the murder weapon, pellets, a cartridge case, and casings.⁷ A few days later, he checked out the jacket Bonnell wore on the night of the alleged crimes and a pillow collected from the murder scene that definitively contained the victim’s blood.⁸ None of this evidence was ever returned to its secure, designated location.⁹

Adding insult to injury, Bonnell’s counsel made another startling discovery in 2020. After Bonnell asked for another accounting of the evidence, the prosecution represented in an affidavit that it had conducted a thorough search for physical evidence and all it had in its possession were four boxes containing only paper documents.¹⁰ The prosecution let defense counsel review these boxes, where they discovered morgue pellets and shell casings from the murder—evidence the prosecution had repeatedly stated did not exist.¹¹

Bonnell filed a motion for leave to file a motion for a new trial,¹² alleging that the prosecution violated his constitutional due process rights by losing and destroying evidence that could have exonerated him.¹³ To prove this due process claim, Bonnell needed to demonstrate that the prosecution lost or destroyed the evidence in bad faith. Despite compelling evidence demonstrating the prosecution’s unmistakable mishandling of the evidence from Bonnell’s case, the trial court denied his motion without a hearing.¹⁴ Repeating the prosecution’s findings of fact and conclusions of law verbatim,¹⁵ the court reasoned that Bonnell’s motion was untimely because the evidence he relied on in demonstrating the prosecution’s bad faith had existed since his trial.¹⁶ Thus, he failed to demonstrate, as the legal standard required, that he was unavoidably prevented from timely filing a motion for a new trial. Over three dissents, the Ohio Supreme Court declined to accept jurisdiction over Bonnell’s appeal on the ground that his case was not one of “public or great general interest.”¹⁷ He filed a petition for a writ of certiorari with the United States Supreme Court on January 14, 2021,¹⁸ which the Court denied on March 29, 2021.¹⁹ Bonnell, having exhausted all avenues for legal recourse, will face execution on November 18, 2026.²⁰

Bonnell’s case illustrates the evidentiary difficulties criminal defendants can face when attempting to prove that the government’s loss or destruction of evidence violated their due process rights. To make this showing, a defendant must prove that the government did so in bad faith. The United States Supreme Court established the bad faith requirement in its 1988 decision in Arizona v. Youngblood.²¹ Since its adoption, the bad faith requirement has been criticized for saddling defendants with an evidentiary burden that is nearly impossible to satisfy.²² Direct evidence chronicling the government’s nefarious intent behind its loss or destruction of critical evidence is unlikely to exist, and even where it does, the prosecution is unlikely to freely offer it to the defense. Thus, short of an admission from the government that it destroyed the evidence in bad faith—which is also unlikely to happen—criminal defendants face an evidentiary void that makes it extremely difficult for them to satisfy the bad faith requirement.

This imbalance of information and access to evidence is constitutionally problematic because a defendant’s ability to access evidence shapes their ability to present a complete defense, and consequently, their ability to enjoy fair judicial proceedings—bedrock due process rights. These concerns are not merely hypothetical: In a study examining the over 1,600 published cases that cited Youngblood as of 2007, the bad faith requirement was satisfied in only seven.²³ What’s worse, some criminal defendants who were unable to satisfy the bad faith requirement—including Larry Youngblood, the defendant in Arizona v. Youngblood—were eventually found innocent through other means, but not before they faced decades of wrongful incarceration.²⁴ Given the civil liberties at stake, the bad faith requirement should be reformed to better enable criminal defendants to vindicate their constitutional due process rights.

Despite many critics calling on the Supreme Court to do away with the bad faith requirement altogether,²⁵ it has remained untouched since the Court decided Youngblood nearly four decades ago. It stands to reason, then, that any proposed changes to the bad faith requirement must retain its core principles for the Supreme Court to entertain adopting them. This Note proposes a burden-shifting framework, applicable to cases where the evidence might have played a significant role in the defendant’s defense, that retains the thrust of the bad faith requirement while simultaneously alleviating the significant evidentiary challenges criminal defendants currently face when attempting to satisfy this requirement. This framework, in effect, shifts the burden of producing evidence demonstrating the prosecution’s good or bad faith to the prosecution itself—the party best situated to make this showing. In so doing, it preserves the essence of the bad faith requirement while also rectifying the evidentiary imbalance between the prosecution and the defendant, making it easier for criminal defendants to satisfy the bad faith requirement and, consequently, vindicate their due process rights.

This Note proceeds in three parts. Part I provides an overview of the Supreme Court’s decisions evaluating due process in access to evidence cases decided prior to Arizona v. Youngblood. It then provides a comprehensive discussion of Youngblood and presents real-life examples of the bad faith requirement’s adverse consequences. Part II examines the bad faith requirement’s shortcomings and justifications. Part III sets forth the burden-shifting framework.

I. The Bad Faith Requirement

The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit the government from depriving individuals of “life, liberty, or property, without due process of law.”²⁶ The Supreme Court has consistently recognized that due process generally protects individuals from government action that is “fundamentally unfair.”²⁷ In the context of judicial proceedings, “[a] fair trial in a fair tribunal is a basic requirement of due process.”²⁸ To safeguard this right, the Supreme Court has developed “what might loosely be called the area of constitutionally guaranteed access to evidence.”²⁹ A defendant’s ability to access evidence shapes their ability to present a complete defense, and consequently, their opportunity to enjoy fair judicial proceedings.

The Supreme Court’s establishment of the bad faith requirement in Arizona v. Youngblood is in tension with these constitutional imperatives, and this decision marked a significant shift away from the Court’s previous access to evidence decisions. This Part begins by discussing Supreme Court decisions evaluating due process in access to evidence cases decided before the Court addressed whether the government’s loss or destruction violates a criminal defendant’s due process rights. It then discusses California v. Trombetta, the first Supreme Court case to address this issue, and Arizona v. Youngblood, the Supreme Court case establishing the bad faith requirement. It concludes by presenting examples of the bad faith requirement’s adverse consequences.

A. The Supreme Court’s Pre-Youngblood Access to Evidence Jurisprudence

The Supreme Court did not squarely address whether the government’s loss or destruction of evidence violates a criminal defendant’s due process rights until 1984. Before this, the Court considered a related question: whether prosecutorial suppression of evidence favorable to the defendant violates the defendant’s due process rights.

In Brady v. Maryland, decided in 1963, the Court held that prosecutorial suppression of evidence favorable to the accused and material to guilt or punishment constitutes a due process violation.³⁰ John Brady and a co-defendant were charged with first-degree murder.³¹ Brady admitted to participating in the crime leading up to the murder but maintained that his co-defendant alone committed the actual murder.³² During trial, Brady’s counsel asked the prosecution for the statements his co-defendant made to the police.³³ The prosecution provided some of these statements, but withheld the co-defendant’s confession to committing the murder.³⁴ Brady learned about the statement after he was convicted and sentenced to death.

The Supreme Court held that the prosecution’s suppression of the co-defendant’s confession violated Brady’s due process rights, “irrespective of the good or bad faith of the prosecution,” because it was material to his guilt or punishment.³⁵ The Court’s analysis focused on how the prosecution’s actions deprived the defendant of a fair trial:

A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile. . . .”³⁶

Brady is lauded for promoting fairness in criminal trials by lessening the evidentiary imbalance between the prosecution and the defendant.³⁷ By evaluating Brady’s claim without regard to the prosecution’s good or bad faith, the Court made clear that the due process inquiry should focus on how the evidence’s absence undermines the defendant’s right to a fair trial. And by expressly stating that the prosecution’s good or bad faith has no bearing on the due process analysis, the Court emphasized a critical point: The vindication of a defendant’s due process rights should not turn on the motivations driving the prosecution.

Less than fifteen years later, the Court expanded on Brady in United States v. Agurs, holding that the prosecution has an affirmative duty to provide defendants with evidence that is material to guilt or punishment, regardless of whether the defendant requested the evidence.³⁸ There, the Court began its analysis by acknowledging that, unlike in Brady, the defendant did not make a specific request for the evidence at issue.³⁹ Nevertheless, the Court found this fact irrelevant to the prosecution’s constitutional duty to provide this evidence to the defendant. The existence of exculpatory evidence in the prosecution’s possession, the Court reasoned, is usually unknown to the defense. In these instances, a defendant may not even know to make a request, or may ask for “all Brady material” or “anything exculpatory.”⁴⁰ Thus, the Court reasoned, a request of this nature “really gives the prosecutor no better notice than if no request is made. . . . But if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, the duty should equally arise even if no request is made.”⁴¹

Consistent with Brady, the core tenet guiding the Agurs decision was the assurance of “elementary fairness” for the accused during the trial.⁴² Also like Brady, the Court treated the Agurs prosecution’s good or bad faith as irrelevant, reasoning that the “constitutional error” depended on “the character of the evidence, not the character of the prosecutor.”⁴³ Argus thus reinforced the notion established by Brady: In access to evidence cases, the due process inquiry should focus on the impact the evidence would have had on the accused’s trial, wholly divorced from the subjective intentions of the prosecution.

Following Brady and Agurs, lower courts interpreted the prosecution’s evidentiary disclosure requirements as also requiring the prosecution to preserve evidence. For example, in United States v. Bryant, the D.C. Circuit was tasked with determining whether the government’s failure to disclose evidence, attributed to its loss of the evidence, violated the criminal defendant’s due process rights.⁴⁴ The court acknowledged that, unlike in Brady and Agurs, the contents of the missing evidence in this case were unknown, and thus whether the evidence was favorable to the accused was also unknown.⁴⁵ Nevertheless, the court found that the government’s failure to preserve the evidence violated the defendant’s due process rights. The court reasoned that, if the prosecution’s disclosure duty was limited to cases where the contents of the non-disclosed evidence were known, it could easily circumvent this duty by destroying the evidence.⁴⁶ Instead, the court rationalized, the overarching goal of the disclosure duty is to allow the trial to operate as “a search for truth informed by all relevant material, much of which, because of the imbalance of investigative resources, will be exclusively in the hands of the Government.”⁴⁷

The intuitive logic of this case is clear: Courts cannot ascertain whether undisclosed evidence is favorable to the accused if the evidence does not exist. For this reason, many courts after Brady and Agurs required the government to preserve evidence so they could decide whether the evidence was material to the defense and, thus, subject to due process protections.⁴⁸

The Supreme Court weighed in on this issue for the first time in its 1984 decision in California v. Trombetta, where it held that the government has a duty to preserve evidence “that might be expected to play a significant role in the suspect’s defense.”⁴⁹ Trombetta involved several drunk driving cases. In each case, state officers collected and tested the defendants’ breath samples and destroyed them after they were tested.⁵⁰ Though preservation of the breath samples was technologically possible, their destruction was part of the state’s regular procedures.⁵¹ The defendants argued that the government’s failure to preserve these breath samples hindered their ability to present a complete defense—and thus violated their due process rights—because the samples could have been retested and used to impeach the test results.⁵²

The Court held that the state’s destruction of the breath samples did not violate the defendants’ due process rights.⁵³ Writing for a unanimous court, Justice Marshall began the court’s due process analysis by stating that due process requires criminal prosecutions to “comport with prevailing notions of fundamental fairness,” and that this requirement had long been interpreted as “requir[ing] that criminal defendants be afforded a meaningful opportunity to present a complete defense.”⁵⁴ He further recognized that these constitutional privileges, as established by access to evidence cases like Brady and Agurs, “deliver[] exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.”⁵⁵However, the Court spent little time discussing how the evidence’s absence impacted the fairness of the trial. For example, the Court did not discuss how the absence of the breath samples impacted the defendants’ ability to confront and cross-examine the test results—a constitutional right protected by the Fifth Amendment⁵⁶—which requires examination of all physical evidence and data that allegedly support the findings.⁵⁷ A defendant cannot fully challenge the accuracy and reliability of unavailable evidence, and their inability to do so could compromise the fairness of their trial.⁵⁸

Instead, the Court’s analysis focused on what kind of evidence ought to be preserved, holding that the government’s duty to preserve evidence is limited to that which “might be expected to play a significant role in the suspect’s defense.”⁵⁹ To meet this standard, the evidence must “possess an exculpatory value that was apparent before the evidence was destroyed” and “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”⁶⁰ The Court found that the breath samples failed to meet this standard: Given the exceptional reliability of the state’s testing procedures and the test results’ unambiguous indications of blood alcohol contents exceeding the legal limit, the breath samples would more likely yield inculpatory, rather than exculpatory, evidence.⁶¹

The Court also acknowledged that the government did not destroy the samples to purposefully circumvent Brady and, instead, “acted in good faith and in accord with their normal practice.”⁶² Notably, this was the Court’s only mention of the government’s moral culpability in its decision. The Court left unclear what role, if any, the government’s good faith or lack thereof should play in its newly established rule limiting the government’s duty to preserve evidence to that which could play a “significant role” in the suspect’s defense. Nevertheless, while this mention of the government’s good faith is arguably dicta, it marked a notable departure from Brady and Agurs, where it explicitly regarded the prosecution’s subjective intent as wholly irrelevant to the due process inquiry.⁶³

B. Arizona v. Youngblood

A few years after Trombetta, the Supreme Court established the bad faith requirement in Arizona v. Youngblood.⁶⁴ Larry Youngblood was charged with kidnapping and sexually assaulting a ten-year-old boy.⁶⁵ Following the assault, the police collected the victim’s clothing but failed to inspect and properly store it.⁶⁶ Fifteen months later, a police criminologist inspected the clothing and detected two semen stains belonging to the assailant.⁶⁷ The police criminologist performed tests on the stains to determine the assailant’s identity, but the results were inconclusive.⁶⁸ At trial, the criminologist and Youngblood’s experts testified that, had the clothing been properly stored, the stains could have produced DNA test results conclusively revealing the assailant’s identity.⁶⁹ Youngblood was convicted. On appeal, he argued that the police’s failure to preserve the clothing containing potentially exculpatory DNA samples violated his due process rights.⁷⁰

The Court held that the government’s destruction of the victim’s clothing did not violate Youngblood’s due process rights.⁷¹ Chief Justice Rehnquist began the majority’s analysis by acknowledging that the case fell in line with Brady, Agurs, and other access to evidence cases.⁷² The Court then referenced the due process rights established by Brady and Agurs, finding that there was “no question” that the state complied with their requirements by disclosing to Youngblood the existence of the samples and their test results.⁷³ Although the Court acknowledged that these cases treated the government’s good or bad faith as irrelevant, the Court reasoned that “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it . . . might have exonerated the defendant.”⁷⁴ The Court refused to read the fairness requirement of the Due Process Clause as “imposing on the police an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution.”⁷⁵

Instead, the Court zeroed in on bad faith. Striving to impose “reasonable bounds” on the government’s duty to preserve evidence, the Court created a standard that recognizes a due process violation for the government’s destruction or loss of potentially useful evidence only if the defendant proves that the government lost or destroyed the evidence in bad faith.⁷⁶ Applying this standard to the case, the Court found that the police’s failure to preserve the victim’s clothing was not done in bad faith, and instead could “at worst be described as negligent.”⁷⁷ While never made explicit by the opinion, it has been argued that “there seems to exist an underlying concern that too broad a standard in this area would allow many guilty defendants to go free and that this concern should be weighed against the fairness consideration.”⁷⁸ Or, as the dissent argued, the majority may have been motivated by a desire to create a bright-line rule.⁷⁹

Justice Stevens concurred in the Court’s judgment but did not join the majority because he believed it established a legal rule that was broader than necessary to resolve the case.⁸⁰ According to Stevens, the police’s failure to properly preserve the clothing did not compromise Youngblood’s right to a fair trial because it was unlikely he was prejudiced by the evidence’s absence. The jury instructions allowed for an adverse inference to be drawn against the prosecution if the juror believed the government “allowed to be destroyed or lost any evidence whose content or quality are in issue,” and no juror drew this inference.⁸¹ Nevertheless, Stevens refused to join the majority because “there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.”⁸²

Justice Blackmun, joined by Justices Brennan and Marshall, dissented, rejecting the bad faith requirement because it “improperly limits the scope of due process[] and ignores its proper focus in a futile pursuit of a bright-line rule.”⁸³ The dissent criticized the majority’s sharp departure from long-standing precedent: “Brady and Agurs could not be more clear in their holdings that a prosecutor’s bad faith in interfering with a defendant’s access to material evidence is not an essential part of a due process violation.”⁸⁴ Although, as the dissent acknowledged, the Trombetta opinion noted that the evidence at issue there was destroyed by the state in good faith, the dissent reasoned that this acknowledgment did not bear on Trombetta’s outcome and “merely prefaced the primary inquiry, which center[ed] on the ‘constitutional materiality’ of the evidence.”⁸⁵ Instead, Trombetta stands for the proposition that the government has a duty to preserve constitutionally material evidence regardless of the government’s good or bad faith.⁸⁶ Preservation of this evidence, the dissent reasoned, ensures “that criminal defendants [are] afforded a meaningful opportunity to present a complete defense” and “protect[s] the innocent from erroneous conviction and ensur[es] the integrity of our criminal justice system.”⁸⁷

The dissent further reasoned that the bad faith requirement weakens this due process safeguard by requiring defendants to satisfy the bad faith requirement before the Court can evaluate whether the absence of the evidence impeded the defendant’s due process rights.⁸⁸ In other words, the Youngblood majority opinion requires defendants to prove that the government acted in bad faith before a court can even launch a Trombetta inquiry. The dissent also acknowledged the “inherent difficulty a defendant would have in obtaining evidence to show a lack of good faith.”⁸⁹ The bad faith requirement thus makes it difficult for a criminal defendant to vindicate their due process rights following the government’s loss or destruction of evidence.

In addition to the issues recognized by the dissent, the Youngblood majority opinion left several critical questions unanswered. Chief among them is, besides concluding that negligence does not amount to bad faith, the Court did not define bad faith. In a footnote, the Court stated that the presence of bad faith “must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed,”⁹⁰ which has been interpreted as requiring defendants to prove that the police knew that the evidence was potentially useful and destroyed it anyway.⁹¹ The Youngblood majority opinion also left the following questions unanswered: What mental state amounts to bad faith? Is bad faith measured objectively or subjectively? The Court’s finding that negligence does not amount to bad faith has been interpreted as “suggest[ing] that the defendant would also have to prove willful, or at least reckless, destruction of the evidence.”⁹² And although the Court was silent as to whether defendants must show objective or subjective bad faith, most lower courts have interpreted Youngblood as requiring a showing of subjective bad faith.⁹³

The Court also left the relationship between Trombetta’s and Youngblood’s requirements unresolved. While these cases involved evidence of differing significance—Trombetta addressing evidence that could have played a significant role in the defendant’s case, and Youngblood addressing evidence that was only potentially useful—most circuits have interpreted Youngblood as introducing a third, threshold element to Trombetta’s two-pronged materiality test.⁹⁴ The First Circuit, for example, has stated that “Trombetta and Youngblood together established a tripartite test to determine whether a defendant’s due process rights have been infringed by law enforcement’s failure to preserve evidence.”⁹⁵ To make this showing, a defendant must demonstrate that the government, in failing to preserve the evidence, “(1) acted in bad faith when it destroyed evidence, which (2) possessed an apparent exculpatory value and, which (3) is to some extent irreplaceable.”⁹⁶ Under this framework, the absence of bad faith on the part of the government “will be dispositive.”⁹⁷On the other hand, four circuits have interpreted Youngblood’s bad faith requirement as only applicable in instances where the evidence’s exculpatory value is indeterminate and therefore all that can be said about it is that it could have been potentially useful.⁹⁸

C. Youngblood’s Postscript

In line with the concurring and dissenting justices’ anxieties, the Youngblood bad faith requirement has proven to be incredibly difficult for criminal defendants to satisfy. In a survey examining the 1,675 published cases citing Youngblood as of 2007, the bad faith requirement was satisfied in only seven.⁹⁹ What is particularly alarming is that, even where defendants are innocent, the bad faith requirement routinely remains unmet, highlighting a stark disconnect between the bad faith requirement and principles of justice.

Take Clarence Moses-El’s case as an example. On April 7, 1988, Moses-El was convicted of attacking and sexually assaulting a twenty-three-year-old woman in her home—a crime he fervently denied committing.¹⁰⁰ A few years later, Moses-El’s counsel requested that the Denver Police Department and the District Attorney’s Office preserve the bed sheet, rape kit, and clothing from the night of the incident until Moses-El could hire a laboratory to conduct DNA testing on this evidence.¹⁰¹ Robin Whitley, the Deputy District Attorney assigned to the case, asked the Denver Police Department to determine whether these samples existed.¹⁰² Fortunately, they did. The Police Department packaged the samples and prepared them for shipping to the DNA laboratory by putting them in a sealed box marked “DO NOT DESTROY” and noting in a computer entry “HOLD FOR DA ROBIN WHITLEY.”¹⁰³ A few weeks later, this evidence was tossed in a dumpster, destroying any chance Moses-El had to use DNA testing to exonerate himself.¹⁰⁴ The Tenth Circuit found that Moses-El failed to satisfy the bad faith requirement because “no one notified [the detective responsible for tossing the evidence] that he needed to preserve the evidence.”¹⁰⁵ Later, the true offender confessed to the crime in a letter he wrote to Moses-El.¹⁰⁶ Moses-El was eventually acquitted of all charges and received nearly $2 million in compensation for his wrongful conviction—but not before he spent twenty-eight years behind bars.¹⁰⁷

Larry Youngblood, whose case the Supreme Court used to establish the bad faith requirement, was himself exonerated nearly seventeen years after the Court’s decision. In 2000, upon request from Youngblood’s counsel, the police department tested the degraded evidence using newly developed DNA technology.¹⁰⁸ Those results exonerated Youngblood, and he was released from prison shortly thereafter.¹⁰⁹ However, a poignant sense of injustice persists in his narrative. Youngblood passed away in 2007, never receiving any compensation for his wrongful conviction and imprisonment.¹¹⁰ A bitter irony lies in the enduring impact of Arizona v. Youngblood: It continues to impose an insurmountable evidentiary burden on criminal defendants who, just as Youngblood did, seek to vindicate their due process rights.

Despite their inability to satisfy the bad faith requirement, Moses-El and Youngblood were exonerated through other evidence that definitively proved their innocence. Unfortunately, not every defendant is so fortunate. Recall Melvin Bonnell’s case, which serves as a poignant example of the difficulties criminal defendants can face when attempting to obtain evidence demonstrating the government’s bad faith. Despite his persistence, it took him decades to access evidence demonstrating the government’s egregious mishandling of evidence from his case, but it is unfortunately too late for him to receive constitutional recourse.¹¹¹ Tragically, Bonnell faces execution in 2026, steadfastly maintaining his innocence in the face of mounting adversity.¹¹²

II. The Bad Faith Requirement’s Shortcomings and Justifications

Youngblood’s bad faith requirement has been remarkably controversial since its adoption nearly thirty-five years ago. While it has been celebrated by some, most of its commentary criticizes it for impinging on criminal defendants’ due process rights. This Part examines these arguments.

A. The Bad Faith Requirement’s Shortcomings

Since its adoption, the bad faith requirement has faced impassioned criticism. Chief among this criticism is that, by requiring defendants to prove the subjective mental state of the government official who lost or destroyed the evidence at issue, the bad faith requirement saddles defendants with an evidentiary burden that is extremely difficult to satisfy.¹¹³ Subjective mental state is inherently elusive: A person’s thoughts, intentions, and motivations are private, intangible, and impossible for another person to retroactively observe.¹¹⁴ What’s more, human behavior is seldom governed by just one motivation. Instead, a multitude of motivations, including some that may be inappropriate, may influence behavior.¹¹⁵ Furthermore, government officials have little incentive to admit wrongdoing. Thus, unless there is a contemporaneous, well-documented record of the official’s intent to lose or destroy the evidence in bad faith—which, practically speaking, is unlikely to exist—criminal defendants face an evidentiary void that obstructs their ability to vindicate their due process rights.¹¹⁶

Even if this evidence exists, the government is unlikely to freely offer it to the defendant.¹¹⁷ Revisit the case of Melvin Bonnell, where government evidentiary logs unveiled the prosecution’s glaring failure to return critical pieces of evidence to their designated, secure location.¹¹⁸ When Bonnell finally gained access to these logs more than twenty-five years later, he faced a procedural roadblock: The court denied his plea for a new trial because, technically, the evidence had always existed.¹¹⁹ Defendants who raise this due process claim prior to conviction may fare better than Bonnell. They can leverage discovery tools to procure the necessary evidence. Even in such instances, however, it remains unlikely that the prosecution will freely provide the evidence to the defendant. Acquiring this evidence, then, will require deft navigation of the discovery process and may even require court intervention, triggering prolonged evidentiary proceedings that will consume the court’s time and resources.

This evidentiary imbalance also inhibits criminal defendants’ ability to prevail on the merits vis-à-vis the prosecution. As Justice Stevens recognized in his Youngblood concurrence, even in instances where evidence is not lost or destroyed in bad faith, the loss or destruction of “critical” evidence may nevertheless render a trial fundamentally unfair¹²⁰ by impeding the criminal defendant’s ability to present a complete and accurate defense based on the realities of the case. While due process is intended to safeguard against such unfairness, the difficulties associated with proving bad faith obstruct the defendant’s ability to vindicate these rights, making the case inherently partial to the prosecution.

Compounding these issues, the bad faith requirement has the potential to encourage governmental destruction of evidence.¹²¹ While the government and its agents are duty-bound to uphold the rule of law and ensure a fair legal system, individual actors may succumb to pressures compelling them to destroy evidence—for example, to protect their reputation, avoid legal consequences, or maintain public trust. This troubling incentive exists because, once evidence is destroyed, its contents become unprovable and, by default, are relegated to the status of “potentially useful.”¹²² This is especially problematic when the evidence, had it been preserved, would have been considered material to the defendant’s guilt or punishment, necessitating its disclosure to the defendant under the mandates of Brady and Agurs.¹²³ In such instances, for the defendant to receive constitutional recourse for the absence of this evidence, they must establish the government’s bad faith—a Herculean task compared to the automatic entitlement they would have enjoyed but for its loss or destruction. An evidentiary framework bearing the potential to incentivize the destruction of such evidence undermines the integrity of the criminal legal system and poses a direct threat to the pursuit of truth and fairness in criminal proceedings.¹²⁴

The bad faith requirement also deviates significantly from sound Supreme Court precedent.¹²⁵ When compared to other access to evidence cases, Youngblood’s focus on bad faith is idiosyncratic. In Brady and Agurs, the Court expressly stated that the government’s good or bad faith was irrelevant to the due process analysis,¹²⁶ reasoning in Agurs that the focus of the inquiry should be on “the character of the evidence, not the character of the prosecutor.”¹²⁷ While the Court noted in Trombetta that state officials destroyed the evidence at issue in good faith, this was the only reference to good or bad faith in the entire decision,¹²⁸ and it arguably did not bear on the case’s outcome. And when compared to the Supreme Court’s application of the Due Process Clause to all other phases of the criminal legal process, Youngblood is the only case where the due process analysis turns on the government’s bad faith.¹²⁹

Federal and state court decisions before and after Youngblood reinforce the bad faith requirement’s incongruence with traditional notions of due process. Before Youngblood, virtually no state or federal court required proof of the government’s bad faith when determining whether the government’s loss or destruction of evidence deprived the criminal defendant of their due process rights.¹³⁰ Instead, courts typically used a multi-factor balancing test, considering factors like the nature of the government’s conduct and the prejudice suffered by the defendant.¹³¹ Furthermore, since Youngblood was decided, many states have rejected the bad faith requirement by resting their state court decisions on their state constitutions’ guarantees of due process or by enacting innocence protection legislation requiring postconviction preservation of DNA evidence.¹³² While these measures do some work to alleviate the bad faith requirement’s adverse consequences, claims brought under the federal constitution are still bound by Youngblood. Additionally, innocence protection legislation usually only applies to biological evidence collected in relation to certain kinds of cases, leaving other types of evidence subject to Youngblood’s requirements.¹³³

B. The Bad Faith Requirement’s Justifications

One of the bad faith requirement’s core justifications is its role in establishing reasonable bounds on the government’s obligation to preserve evidence. As the Youngblood majority acknowledged, absent this requirement, government entities already grappling with scarce resources will have an indiscriminate duty to preserve all potentially useful evidence, even though much of it may never be used.¹³⁴ The time and resources spent on preserving this indiscriminate body of evidence, this argument reasons, could be better used on other pressing needs that directly impact the public interest.¹³⁵

The bad faith requirement has also been justified for creating an easily administrable bright-line rule, thus improving efficiency in the courts. Most circuits treat the bad faith requirement as a threshold issue preceding Trombetta’s two-pronged constitutional materiality test.¹³⁶ This approach, the argument goes, helps curtail the need for prolonged evidentiary proceedings associated with the Trombetta test, thus freeing up court resources. This argument, however, falls short. For one, it overlooks Youngblood’s lingering ambiguities: Youngblood does not define bad faith, nor does it state whether subjective or objective bad faith is necessary to satisfy this requirement. The resulting lack of clarity has ignited extensive litigation seeking to clarify its meaning,¹³⁷ ironically working against the very efficiency the Court sought to promote. Furthermore, this argument fails to consider the evidentiary disparities between the prosecution and the defendant, which, as previously discussed, may too necessitate prolonged evidentiary proceedings.

Additionally, it has been argued that the bad faith requirement is only minimally burdensome on a criminal defendant’s due process rights.¹³⁸ Even if a defendant cannot prove that the government lost or destroyed the evidence at issue in bad faith, other legal tools are available to safeguard their due process rights. For example, the defendant may seek sanctions under discovery rules before trial or, through zealous advocacy, emphasize the significance of the lost evidence during their case presentation.¹³⁹ Additionally, at the judge’s discretion, a missing evidence jury instruction may be issued.¹⁴⁰ These arguments, however, also fall short because they fail to account for claims brought during the postconviction stage. At this stage, fewer sanctions are available, and those that are usually require proof that the loss or destruction of evidence was intentional.¹⁴¹

Proponents of the bad faith requirement also believe that arguments claiming the bad faith requirement incentivizes destruction of evidence are exaggerated.¹⁴² For example, as Justice Stevens noted in his Youngblood concurrence, the government has “at least as great an interest in preserving the evidence as did the person later accused of the crime.”¹⁴³ The government’s primary interest in criminal cases is “not to obtain convictions, but rather to obtain justice.”¹⁴⁴ It is thus unreasonable, this assertion goes, to argue that the government will always, or even in most cases, have an incentive to destroy evidence. While this argument has some merit, there remains the possibility that rogue government actors might nevertheless act in a manner that deviates from this government interest—for example, as previously discussed, to protect their reputation, avoid legal consequences, or maintain public trust.

III. Proposed Solution: A Burden-Shifting Framework

The bad faith requirement’s shortcomings far surpass its justifications. Criminal defendants’ right to present a complete defense, enjoy fair and impartial judicial proceedings, and avoid wrongful conviction are bedrock due process rights. Safeguarding these rights should take precedence over any other interest that might support maintaining the bad faith requirement in its current form. The Supreme Court should reform the bad faith requirement to ensure better protection of these fundamental rights.

Despite many critics of the bad faith requirement calling on the Supreme Court to eliminate the requirement altogether, it has remained untouched since the Court decided Youngblood nearly four decades ago. Thus, to enhance the Court’s willingness to consider reform, any proposed changes to the bad faith requirement must preserve its core principles. This Note proposes a burden-shifting framework that maintains the essence of the bad faith requirement, while also alleviating the challenges stemming from the evidentiary disparity between the government and the defendant.¹⁴⁵ The framework addresses this imbalance by transferring the responsibility of presenting evidence of the government’s good or bad faith from the defendant to the prosecution. This Part explains the proposed burden-shifting framework, compares it to existing burden-shifting frameworks used in other areas of law, and provides justifications for its adoption.

A. The Proposed Burden-Shifting Framework

The Supreme Court should adopt a burden-shifting framework that proceeds as follows. First, the defendant must make a prima facie showing that the government lost or destroyed evidence that, had it been properly preserved, would have been “expected to play a significant role in the suspect’s defense”—the kind of evidence Trombetta requires the government to preserve. Notably, this showing would not require the defendant to prove the government’s good or bad faith. Instead, the defendant would only need to (1) prove that the prosecution failed to provide the requested evidence because it was lost or destroyed, and (2) explain why it is likely the evidence, had it been preserved, would have played a significant role in the defendant’s defense.¹⁴⁶ For example, applying this requirement to Arizona v. Youngblood, Larry Youngblood would have needed to show that, had the victim’s clothing containing the assailant’s semen samples been properly stored, it could have been DNA tested and these results would have identified someone else as the assailant. Youngblood could have bolstered this showing by pointing to the police criminologist’s and experts’ testimony stating that, had the victim’s clothing been refrigerated, the “properly preserved semen samples could have produced results that might have completely exonerated [him].”¹⁴⁷

After the defendant makes this prima facie showing, the trier of fact would then be allowed, but not required, to presume that the government’s loss or destruction of the evidence deprived the defendant of their due process rights. This non-mandatory presumption passes the benefit of the uncertainty caused by the missing evidence from the prosecution to the defendant.¹⁴⁸ Given that criminal defendants enjoy a presumption of innocence until proven guilty beyond a reasonable doubt, giving the defendant the benefit of this uncertainty is just.

The prosecution would then have the opportunity to rebut this presumption by presenting evidence demonstrating it destroyed the evidence in good faith and in accord with its usual practices that ensure the proper preservation of Trombetta evidence. This standard retains the thrust of Youngblood’s bad faith requirement by effectively requiring the prosecution to disprove that it destroyed the evidence in bad faith. To make this showing, the prosecution would need to demonstrate that the government has procedures in place that ensure the proper preservation of Trombetta evidence and that the government adhered to those procedures when it lost or destroyed the evidence at issue. In instances where the government did not follow these procedures but tried to do so in good faith, the prosecution could argue that a good faith effort was made to adhere to them, possibly pointing to external obstacles that prevented the government’s compliance. By allowing the trier of fact to draw a presumption in favor of the defendant that the prosecution is entitled to rebut, this proposed framework effectively shifts the burden of producing evidence that demonstrates the government’s good or bad faith from the defendant to the prosecution—the party best situated to make this showing.

At all times, the burden of persuasion remains with the defendant. Following the prosecution’s presentation of evidence challenging the presumption, the defendant must then persuade the trier of fact that the government nevertheless acted in bad faith when it lost or destroyed the evidence at issue. The defendant can challenge the prosecution’s showing by, for example, demonstrating that the government’s procedures do not adequately ensure the proper preservation of evidence, or that the government did not actually adhere to those procedures. The trier of fact will then be free to consider the totality of the evidence and arguments presented by both sides in determining whether the government destroyed the evidence in bad faith.¹⁴⁹

This proposed burden-shifting framework is analogous to others that have been utilized by courts in both the criminal and civil contexts. The following Section provides an overview of these frameworks and compares them to the burden-shifting framework proposed by this Note.

B. Burden-Shifting Frameworks in Other Contexts

Burden-shifting frameworks are a common feature of criminal and civil law that reallocate the burden of production, the burden of persuasion, or both from the party bearing the ultimate burden of persuasion to the opposing party. They are frequently deployed in the form of non-mandatory presumptions, which have been used since the beginning of the twentieth century with “ever-increasing frequency.”¹⁵⁰ Non-mandatory presumptions allow, but do not require, the trier of fact to make a legal presumption based on a prima facie showing by the party bearing the burden of persuasion (which, in most cases, is the party bringing the claim).¹⁵¹ The opposing party can then challenge or rebut this presumption by presenting evidence to the contrary.¹⁵² After the opposing party makes this rebuttal showing, the party that brought the claim bears the burden of persuading the trier of fact that, notwithstanding the evidence presented by the opposing party, they should still decide the issue in alignment with the prima facie presumption.¹⁵³

The Supreme Court has long recognized that non-mandatory presumptions are appropriate where there is “a manifest disparity in convenience of proof and opportunity for knowledge” between the parties.¹⁵⁴ In the criminal context, these presumptions have traditionally been used to help ease the evidentiary difficulties the prosecution might face when proving a defendant’s guilt beyond a reasonable doubt.¹⁵⁵ Consider the element of criminal intent. This element is often difficult for prosecutors to prove because, as previously discussed, an individual’s subjective mental state is extremely difficult to demonstrate.¹⁵⁶ Thus, to alleviate the evidentiary burdens associated with making this showing, many jurisdictions recognize a non-mandatory presumption of intent based on proven behavior signaling that intent.¹⁵⁷ For example, shooting someone at a close range is likely to suggest intent to kill, due to the assailant’s proximity to the victim and the limited margin of error afforded by that proximity. These presumptions are intended to minimize the labor of investigators and prosecutors.¹⁵⁸ While the benefits of non-mandatory presumptions to the prosecution are manifest, they are criticized for diluting a criminal defendant’s right to a presumption of innocence until proven guilty.¹⁵⁹ By allowing factfinders to infer critical facts not affirmatively proven by the prosecution, these non-mandatory presumptions reduce the prosecution’s constitutional burden of proving every element of the crime beyond a reasonable doubt.¹⁶⁰

Non-mandatory presumptions are also prevalent in the civil context. Perhaps the most well-known burden-shifting framework in this context is the “McDonnell Douglas Framework,” established by the Supreme Court in McDonnell Douglas Corporation v. Green.¹⁶¹ This framework applies to cases where a plaintiff brings a claim under Title VII of the Civil Rights Act of 1964, a federal statute that prohibits discriminatory hiring practices on the basis of race, color, religion, sex, or national origin.¹⁶² First, the plaintiff must make a prima facie showing demonstrating that (1) they are a member of a protected class, (2) they qualified for and applied for an available position, (3) despite being qualified, they were rejected for the position, and (4) the position remained available after the plaintiff was rejected and the defendant-employer continued to seek applicants from people sharing the same qualifications as the plaintiff.¹⁶³ After the plaintiff makes this showing, the trier of fact is allowed to presume that the defendant-employer’s conduct violated Title VII. The burden of production then shifts to the defendant-employer to rebut this presumption by articulating a legitimate, nondiscriminatory reason for the employment action.¹⁶⁴ The plaintiff, bearing the burden of persuasion at all times, may then demonstrate that the reason articulated by the defendant-employer is pretextual. Ultimately, the factfinder is free to consider the totality of the evidence and arguments presented by both parties in making its decision.¹⁶⁵

As Justice O’Connor acknowledged in a subsequent case, “the entire purpose of the McDonnell Douglas [burden-shifting framework] is to compensate for the fact that direct evidence of intentional discrimination is hard to come by.”¹⁶⁶ The Court adopted the McDonnell Douglas framework because “[t]he broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.”¹⁶⁷ Achieving this interest becomes challenging when an evidentiary imbalance between the employee and the employer makes it difficult for people to vindicate their Title VII rights. Accordingly, the Court designed the McDonnell Douglas framework to alleviate this evidentiary burden by effectively shifting the burden of producing evidence signaling the employee’s motives underlying the hiring decision from the employee to the employer.

The burden-shifting framework proposed in this Note resembles those used in both the criminal and civil contexts. First, like the examples detailed above, it is designed to alleviate the evidentiary difficulties criminal defendants face when trying to prove the subjective mental state of another. All three frameworks alleviate these difficulties by allowing the trier of fact to presume this subjective mental state based on a prima facie showing that does not directly establish it. These presumptions give the party bearing the ultimate burden of persuasion the benefit of the uncertainty of evidence that, of no fault of their own, they are unable to obtain.

Second, these frameworks give the opposing party the opportunity to affirmatively demonstrate that they did not possess the presumed mental state—which, given that they are the party best positioned to demonstrate their own mental state, makes perfect sense. Although, of course, the opposing party is not required to rebut the presumption, they have a strong incentive to do so because their failure to respond may result in the case being decided against them. This incentive, in effect, creates a de facto burden-shifting scheme that alleviates the evidentiary imbalances between the parties by shifting the burden of production to the party most likely to possess the relevant proof.

It is true that the burden-shifting framework proposed in this Note differs from those traditionally used in the criminal context. Typically, they are used to ease the prosecution’s, not the defendant’s, evidentiary burden—which makes sense, considering that defendants do not bear the burden of proving their innocence. This deviation from the norm, however, is immaterial. Both frameworks begin by requiring the party bringing the claim to make a prima facie showing, and then effectively shift the burden of production to the opposing party. The two frameworks differ only insofar as who is bringing the claim: in the traditional framework, it’s the prosecution, and in the framework proposed here, it’s the defendant. Further, considering that the criminal legal system’s fundamental purpose is to provide defendants with the utmost protection against wrongful convictions, criminal defendants are more deserving of this presumption than are prosecutors.

In fact, the constitutional issues at play in the traditional criminal framework do not apply here and, instead, counsel in support of this proposed burden-shifting framework. Unlike the traditional criminal framework, the framework this Note proposes does not diminish the prosecution’s responsibility to prove every element of the crime beyond a reasonable doubt. Instead, it makes it easier for a criminal defendant to establish that the government’s loss or destruction of evidence deprived them of their due process rights.

C. Justifications for the Proposed Burden-Shifting Framework

The burden-shifting framework proposed by this Note offers several benefits. First, it will make it easier for criminal defendants to vindicate their due process rights in cases where the government does in fact lose or destroy Trombetta evidence in bad faith. This proposed framework alleviates the heavy evidentiary burden criminal defendants currently face under Youngblood. By increasing the likelihood that evidence of the government’s bad faith will be uncovered and presented to the trier of fact, this proposed framework ensures that bad faith determinations are based on the realities of the case. This proposed framework will thus reduce the frequency with which due process claims are arbitrarily disposed of due solely to the evidentiary imbalance between the prosecution and the defendant, which will have “a tremendous payoff for innocent defendants at the margin who have no other way to prove their innocence.”¹⁶⁸

Second, this proposed framework better protects criminal defendants’ due process rights while simultaneously preserving the thrust of Youngblood’s bad faith requirement. As evidenced by the fact that the bad faith requirement has remained untouched since the Supreme Court decided Youngblood nearly four decades ago, any proposed modifications to the bad faith requirement must preserve its foundational principles for the Supreme Court to entertain adopting them, and this proposed burden-shifting framework does precisely that. Just like the Youngblood bad faith requirement, a criminal defendant will still only be entitled to constitutional relief if the trier of fact finds that the government destroyed the evidence at issue in bad faith. Additionally, this proposed framework does not change the scope of evidence the government is required to preserve, and thus its obligation to preserve evidence is still within the “reasonable bounds” envisioned by Youngblood.¹⁶⁹ Instead, this burden-shifting framework only changes the party bearing the burden of producing evidence demonstrating the government’s good or bad faith.

Lastly, this proposed framework will incentivize the government to do a better job of preserving evidence. The possibility of needing to explain its procedures and how they ensure proper preservation of evidence will motivate the government to establish robust practices that ensure proper evidence preservation. It will also incentivize government agents to actually adhere to these procedures and will deter government officials from intentionally or even negligently destroying Trombetta evidence. Given that prosecutors and police departments routinely lose, dispose of, or negligently destroy evidence due to a general lack of accountability measures,¹⁷⁰ these incentives will yield substantial benefits for the criminal legal system.

Conclusion

As it currently stands, Youngblood’s bad faith requirement places an enormous obstacle in the path of criminal defendants seeking to vindicate their due process rights. Given the civil liberties at stake, there is a pressing need for the Supreme Court to reform the bad faith requirement to better protect these rights. The burden-shifting framework proposed by this Note offers a potential modification that retains the thrust of Youngblood’s bad faith requirement while also making it easier for criminal defendants to vindicate their due process rights. By effectively shifting the burden of producing evidence of the government’s good or bad faith to the prosecution—the party best equipped to make this showing—this burden-shifting framework mitigates the evidentiary imbalance that currently makes the bad faith requirement extremely difficult for defendants to satisfy. And crucially, under this framework, the due process claim still hinges on whether the government failed to preserve the evidence in bad faith, thereby preserving the core essence of Youngblood’s bad faith requirement.

* J.D., May 2024, University of Michigan Law School. I am grateful to Professor Barbara McQuade for her invaluable insights and encouragement throughout my research and writing efforts; to the Michigan Law Review Volume 122 Notes Editors—Hannah Cohen Smith, Kassie Fotiadis, Ashley Munger, Katie Osborn, Eddie Plaut, and Jordan Schuler—for their extremely thoughtful and thorough comments; to Will Hanna for his mentorship and invaluable feedback on my earliest drafts; and to Sunita Ganesh, Elana Herbst, Emily Lovell, Peter VanDyken, and every Michigan Law Review editor that helped shape this piece. The views expressed in this Note, as well as any errors, are mine alone.