COMMENT: The Prosecution's Duty To Preserve Evidence Before Trial. Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your® ID to access the full text of this article.
Order the full text of this article if you do not have a® ID.
US $22.00 (+ tax)

Copyright (c) 1984 California Law Review
California Law Review

COMMENT: The Prosecution's Duty To Preserve Evidence Before Trial.


72 Calif. L. Rev. 1019


Che H. Lee *


While courts have adequately dealt with prosecutorial suppression of evidence, an acceptable response to the destruction or loss of relevant evidence has remained elusive. When evidence has been suppressed, courts simply evalute its probative value to determine whether a new trial is required. However, when evidence is lost or destroyed, a court must decide its materiality based only on the unsupported testimony of the parties. And if the evidence could have been exculpatory, the defendant will be severely disadvantaged even if a new trial is ordered, for a new trial cannot consider evidence that no longer exists.

Instead of using analyses developed in suppression of evidence cases, courts must develop a systematic and thorough method particularly designed to deal with lost or destroyed evidence. This Comment proposes a two-pronged prosecutorial duty to preserve evidence, 1 and a remedy based on the presumed probative value of lost or destroyed evidence. Part I reviews the inadequate standards courts have used in the past to analyze destruction or loss of evidence cases. Part II sets out a new approach to analyzing the problems inherent in destruction or loss of evidence cases. It provides a standard to guide the government and the courts in deciding what evidence should be preserved. If these standards are not met, the trial court should proceed to the remedy stage described in Part III by assuming the evidence exists in the form claimed by the defense.


If you are interested in obtaining a® ID and Password, please contact us at 1-(800)-227-4908 or visit us at
Search Documents
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

LexisNexis Store
Research Now - Go to
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities