missing evidence instruction in District of Columbia

2021The mere absence of his prints and DNA on the cell phone, for example, would not have proved Mr. Walker never handled it. 36 Nor would it have undermined the credibility of Ms. Robinson (who said she gave the phone to Mr. Crocker, not Mr. Walker) or disproved her testimony that Mr. Walker was present in the Jetta during the robberies and was a 35 Cf. Howard, 241 A.3d at 561 (“Assuming, without deciding, that the failure in this case to preserve all the contents of the backpack resulted in a violation of the Rule 16 duty to disclose evidence material to the defense, we discern no abuse of discr

2021Cf. id. (affirming trial court’s denial of a missing evidence instruction and “finding it sufficient to allow defense counsel to question the officers about their ‘perhaps sloppy police work’”). 36 For a variety of reasons, as the government points out, fingerprints and DNA often are not recoverable from objects that people certainly have handled.

2021This was nothing more than speculation; though it sufficed to explain why the government should have appreciated the potential materiality of the car and its contents to defense preparation, it was not enough to show a likelihood that the lost evidence actually be inferred from the failure to [present evidence that] would not be expected to contribute additional pertinent facts to the trial” (quoting Thomas v. United States, 447 A.2d 52, 57 (D.C. 1982)). 34 While missing evidence also might have “elucidated” the matter in dispute if the evidence could have significantly benefited the party tha

2020Because the missing evidence instruction is such a radical departure from our preference for deciding cases based upon the evidence presented, when lost items are relatively unimportant or the evidence of guilt is particularly powerful, we are reluctant to say that a trial judge must issue an _____________________ 7 Kaliku v. United States, 994 A.2d 765, 778 (D.C. 2010). 16 instruction drawing special attention to “the presumed content of [evidence] not presented.” Id. (emphasis in original); see also Thomas, 447 A.2d at 57 (reasoning that the lost testimony must have been “noncumulative” and

2011In discussing the requested instruction, the majority speaks generally about the “costs” and “dangers” of the missing evidence instruction, which permits the jury to “create[] evidence from nonevidence,” Dent v. United States, 404 A.2d 165, 170-71 (D.C.1979), and represents “a radical departure from the principle that the jury should decide the case by evaluating the evidence before it.” Tyer v. United States, 912 A.2d 1150, 1164 (D.C.2006).

2011In discussing the requested instruction, the majority speaks generally about the "costs" and "dangers" of the missing evidence instruction, which permits the jury to "create[] evidence from nonevidence," Dent v. United States, 404 A.2d 165, 170-71 (D.C. 1979), and represents "a radical departure from the principle that the jury should decide the case by evaluating the evidence before it." Tyer v. United States, 912 A.2d 1150, 1164 (D.C.2006).

2021Three days later, the police released the Jetta to Mr. Hall. 11 On April 10, 2017 — just before the start of trial — Mr. Walker’s counsel informed the trial judge that the defense intended to request a missing evidence instruction as a sanction for the government’s failure to preserve the Jetta for defense inspection. 10 Weems v. United States, 191 A.3d 296, 300 (D.C. 2018). 11 Mr. Walker first sought an opportunity to view the Jetta, and any “proceeds” of the robberies left in the car, in January 2016.

2021And on appeal, they argue only that the court 26 Howard, 241 A.3d at 560 (quoting Tann v. United States, 127 A.3d 400, 489 (D.C. 2015) (internal quotation marks omitted)). 27 Weems, 191 A.3d at 306 (alteration in original) (quoting Rodriguez v. United States, 915 A.2d 380, 389 (D.C. 2007)).

2015Thomas v. United States, 447 A.2d 52, 58 (D.C.1982) (citing Simmons v. United States, 444 A.2d 962, 964 (D.C.1982) (other citations omitted)).

2006Since the trial court has “considerable latitude” to weigh “all of the circumstances,” Simmons, 444 A.2d at 964, we hold that the court in this case did not abuse its discretion by determining that the loss of the television set had minimal evidentiary value and finding it sufficient to allow defense counsel to question the officers about their “perhaps sloppy police work.” Finally, the government, both at trial and on appeal, has focused on the fact that the cord, wrapped “two or three times” around the victim’s neck, was “cut” at one end by “some type of pliers or snips.” Thus the subsidiary

1978We need not consider whether a missing evidence instruction would have been appropriate, see United States v. Bundy, 153 U.S.App.D.C. 191, 194 , 472 F.2d 1266, 1269 (1972) (Leventhal, J., concurring), since appellant failed to request such an instruction at the appropriate time.

1978We need not consider whether a missing evidence instruction would have been appropriate, see United States v. Bundy, 153 U.S.App.D.C. 191, 194 , 472 F.2d 1266, 1269 (1972) (Leventhal, J., concurring), since appellant failed to request such an instruction at the appropriate time.

1992See Jones v. United States, 343 A.2d 346, 352 (D.C.1975), suggesting “a variant of the so-called missing witness instruction,” and citing United States v. Bundy, 153 U.S.App.D.C. 191, 194 , 472 F.2d 1266, 1269 (1972) (Leventhal, J., concurring).

1987Earl Jones v. United States, 343 A.2d 346, 352 (D.C.1975).

2021In other words, it must be likely that the missing evidence would have been “important,” 33 and that it could have been unfavorable to 31 Howard, 241 A.3d at 561 (quoting Tyer, 912 A.2d at 1166 ). 32 Tyer, 912 A.2d at 1164 (quoting Hinnant v. United States, 520 A.2d 292, 294 (D.C. 1987)); accord Ashby v. United States, 199 A.3d 634, 647 (D.C. 2019) (quoting Tyer, 912 A.2d at 1164 ); Medley v. United States, 104 A.3d 115 , 132 (D.C. 2014) (quoting Tyer, 912 A.2d at 1164 ). 33 See Howard, 241 A.3d at 562 (explaining that lost evidence “must have been ‘noncumulative’ and ‘an important part of the

2006First, the evidence “must be likely to elucidate the transaction at issue”; second, it “must be peculiarly available to the party against whom the adverse inference is sought to be drawn.” Id. at 294 .

2021In other words, it must be likely that the missing evidence would have been “important,” 33 and that it could have been unfavorable to 31 Howard, 241 A.3d at 561 (quoting Tyer, 912 A.2d at 1166 ). 32 Tyer, 912 A.2d at 1164 (quoting Hinnant v. United States, 520 A.2d 292, 294 (D.C. 1987)); accord Ashby v. United States, 199 A.3d 634, 647 (D.C. 2019) (quoting Tyer, 912 A.2d at 1164 ); Medley v. United States, 104 A.3d 115 , 132 (D.C. 2014) (quoting Tyer, 912 A.2d at 1164 ). 33 See Howard, 241 A.3d at 562 (explaining that lost evidence “must have been ‘noncumulative’ and ‘an important part of the

2015The “choice of [which] sanction,” or “whether to impose any sanction at all” is within the trial court’s discretion, with the “only real limitation being that a sanction must be just under the circumstances.” Id. (quoting Davis v. United States, 623 A.2d 601, 605 (D.C.1993)). *22 Even when the party seeking the missing evidence instruction is able to carry its initial burden, Medley v. United States, 104 A.3d 115, 127-28 (D.C.2014), the trial court retains discretion to refuse issuing a missing evidence instruction.

2020Ctr., 581 A.2d 759, 764 (D.C. 1990). _____________________ 4 Appellant occasionally uses broader language implying that another sanction could be acceptable, such as stating that “[t]he court abused its discretion in declining to impose a missing evidence instruction or other sanction.” However, appellant never develops an argument in favor of an alternative sanction.

1991I therefore agree with the majority that the hospital's conduct demonstrated "gross indifference to ... the relevance of the evidence to a possible [indeed, an actual] claim," Battocchi, 581 A.2d at 767 , leaving the trial judge no choice but to give the missing evidence instruction.

2021And on appeal, they argue only that the court 26 Howard, 241 A.3d at 560 (quoting Tann v. United States, 127 A.3d 400, 489 (D.C. 2015) (internal quotation marks omitted)). 27 Weems, 191 A.3d at 306 (alteration in original) (quoting Rodriguez v. United States, 915 A.2d 380, 389 (D.C. 2007)).

2021And on appeal, they argue only that the court 26 Howard, 241 A.3d at 560 (quoting Tann v. United States, 127 A.3d 400, 489 (D.C. 2015) (internal quotation marks omitted)). 27 Weems, 191 A.3d at 306 (alteration in original) (quoting Rodriguez v. United States, 915 A.2d 380, 389 (D.C. 2007)).

2021In other words, it must be likely that the missing evidence would have been “important,” 33 and that it could have been unfavorable to 31 Howard, 241 A.3d at 561 (quoting Tyer, 912 A.2d at 1166 ). 32 Tyer, 912 A.2d at 1164 (quoting Hinnant v. United States, 520 A.2d 292, 294 (D.C. 1987)); accord Ashby v. United States, 199 A.3d 634, 647 (D.C. 2019) (quoting Tyer, 912 A.2d at 1164 ); Medley v. United States, 104 A.3d 115 , 132 (D.C. 2014) (quoting Tyer, 912 A.2d at 1164 ). 33 See Howard, 241 A.3d at 562 (explaining that lost evidence “must have been ‘noncumulative’ and ‘an important part of the

2020Because the missing evidence instruction is such a radical departure from our preference for deciding cases based upon the evidence presented, when lost items are relatively unimportant or the evidence of guilt is particularly powerful, we are reluctant to say that a trial judge must issue an _____________________ 7 Kaliku v. United States, 994 A.2d 765, 778 (D.C. 2010). 16 instruction drawing special attention to “the presumed content of [evidence] not presented.” Id. (emphasis in original); see also Thomas, 447 A.2d at 57 (reasoning that the lost testimony must have been “noncumulative” and

2020Because the missing evidence instruction is such a radical departure from our preference for deciding cases based upon the evidence presented, when lost items are relatively unimportant or the evidence of guilt is particularly powerful, we are reluctant to say that a trial judge must issue an _____________________ 7 Kaliku v. United States, 994 A.2d 765, 778 (D.C. 2010). 16 instruction drawing special attention to “the presumed content of [evidence] not presented.” Id. (emphasis in original); see also Thomas, 447 A.2d at 57 (reasoning that the lost testimony must have been “noncumulative” and

2019See Shelton v. United States , 983 A.2d 363 , 369 (D.C. 2009), opinion amended on reh'g , 26 A.3d 216 , 26 A.3d 233 (D.C. 2011).

2019See Shelton v. United States , 983 A.2d 363 , 369 (D.C. 2009), opinion amended on reh'g , 26 A.3d 216 , 26 A.3d 233 (D.C. 2011).

2019See Shelton v. United States , 983 A.2d 363 , 369 (D.C. 2009), opinion amended on reh'g , 26 A.3d 216 , 26 A.3d 233 (D.C. 2011).

2015“We review the denial of a request for a missing evidence instruction for abuse of discretion,” id. at 1164 , and we “will not reverse the trial court’s'decision as to what sanctions, if any, to impose ... unless there is an error which has substantially prejudiced a defendant’s rights.” Allen, 649 A.2d at 553 (emphasis omitted).

2015The trial court may select from the ―extremely broad‖ range of sanctions for corrective action that is ―just under the circumstances.‖ Tyer v. United States, 912 A.2d 1150, 1165 (D.C. 2006). ―We review the denial of a request for a missing evidence instruction for abuse of discretion,‖ id. at 1164 , and we ―will not reverse the trial court‘s decision as to what sanctions, if any, to impose . . . unless there is an error which has substantially prejudiced a defendant‘s rights.‖ Allen, 649 A.2d at 553 (emphasis omitted).

2015The “choice of [which] sanction,” or “whether to impose any sanction at all” is within the trial court’s discretion, with the “only real limitation being that a sanction must be just under the circumstances.” Id. (quoting Davis v. United States, 623 A.2d 601, 605 (D.C.1993)). *22 Even when the party seeking the missing evidence instruction is able to carry its initial burden, Medley v. United States, 104 A.3d 115, 127-28 (D.C.2014), the trial court retains discretion to refuse issuing a missing evidence instruction.

2007Cf. Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40 , 37 L.Ed. 1021 (1893) (“[I]f a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.”).

2007Cf. Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40 , 37 L.Ed. 1021 (1893) (“[I]f a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.”).

2006See Nixon v. United States, 730 A.2d 145, 154 (D.C.1999); Reyes-Contreras v. United States, 719 A.2d 503, 508 (D.C.1998).

2006See Nixon v. United States, 730 A.2d 145, 154 (D.C.1999); Reyes-Contreras v. United States, 719 A.2d 503, 508 (D.C.1998).

2005Harris v. United States, 602 A.2d 154, 162 (D.C.1992) (en banc). 23 .

1994The imposition of sanctions requires the court to “consider a number of factors, including [1] the reason for nondisclosure, [2] the impact of nondisclosure, and [3] the impact of the proposed sanction on the administration of justice.” Wiggins v. United States, 621 A.2d 1146, 1148 (D.C.1987) (citing Lee v. United States, 385 A.2d 159, 163 (D.C.1978)).