CR05-801. Lost Evidence (06/09/03). Vermont law recognizes that an instruction on lost evidence, or “spoliation,” may be appropriate to explain missing evidence in a civil trial. See, e.g., In re Campbell’s Will, 102 Vt. 294 (1929). The idea is to explain inferences that jurors may draw. There are cases from other states holding that a “lost evidence” instruction may be appropriate in criminal trials, as a remedy short of dismissal. See People v. Zamora, 28 Cal.3d 88, 615 P.2d 1361, 167 Cal.Rptr. 573 (Cal. 1980). The Vermont Supreme Court has held that the trial court is not required to give a Zamora instruction where the loss of evidence does not prejudice the defendant’s constitutional right to a fair trial. State v. Smith, 145 Vt. 121, 129 (1984). For cases discussing circumstances that could support outright dismissal, see State v. Devine, 168 Vt. 566 (1998), and State v. Delisle, 162 Vt. 293 (1994). For the most recent discussion by the Vermont Supreme Court, where the defendant was not entitled to any remedy beyond an instruction to the jury, see State v. Gibney, 2003 VT 26, 175 Vt. 180.
The lost evidence instruction is designed to allow an inference in favor of the defendant, where a loss or destruction of evidence has prejudiced the defendant’s ability to defend himself or herself, but where the evidence of police misconduct is insufficient to support a dismissal. The instruction should be given only where the missing evidence would have been material to the case, and the circumstances show a violation of due process. With or without the instruction, the attorneys may comment on the evidence in their closing arguments, and defense counsel may argue that the missing evidence would have helped the defendant. If the police are guilty of egregious misconduct, the defendant may argue to the court for a dismissal.