{"id":924,"date":"2012-09-05T17:35:30","date_gmt":"2012-09-05T17:35:30","guid":{"rendered":"http:\/\/vtjuryinstructions.org\/?page_id=924"},"modified":"2012-09-05T17:35:30","modified_gmt":"2012-09-05T17:35:30","slug":"lost-evidence","status":"publish","type":"page","link":"https:\/\/vtjuryinstructions.org\/?page_id=924","title":{"rendered":"Lost Evidence"},"content":{"rendered":"

CR05-801.\u00a0 Lost Evidence<\/a> (06\/09\/03).\u00a0 Vermont law recognizes that an instruction on lost evidence, or \u201cspoliation,\u201d may be appropriate to explain missing evidence in a civil trial.\u00a0 See, e.g.<\/em>, In re Campbell\u2019s Will, 102 Vt. 294 (1929).\u00a0 The idea is to explain inferences that jurors may draw.\u00a0 There are cases from other states holding that a \u201clost evidence\u201d instruction may be appropriate in criminal trials, as a remedy short of dismissal.\u00a0 See<\/em> People v. Zamora, 28 Cal.3d 88, 615 P.2d 1361, 167 Cal.Rptr. 573 (Cal. 1980).\u00a0 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\u2019s constitutional right to a fair trial.\u00a0 State v. Smith, 145 Vt. 121, 129 (1984).\u00a0 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).\u00a0 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.<\/p>\n

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\u2019s ability to defend himself or herself, but where the evidence of police misconduct is insufficient to support a dismissal.\u00a0 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.\u00a0 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.\u00a0 If the police are guilty of egregious misconduct, the defendant may argue to the court for a dismissal.<\/p>\n","protected":false},"excerpt":{"rendered":"

CR05-801.\u00a0 Lost Evidence (06\/09\/03).\u00a0 Vermont law recognizes that an instruction on lost evidence, or \u201cspoliation,\u201d may be appropriate to explain missing evidence in a civil trial.\u00a0 See, e.g., In re Campbell\u2019s Will, 102 Vt. 294 (1929).\u00a0 The idea is to … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":653,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-924","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/924","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=924"}],"version-history":[{"count":2,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/924\/revisions"}],"predecessor-version":[{"id":927,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/924\/revisions\/927"}],"up":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/653"}],"wp:attachment":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=924"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}