Willits instruction in Arizona

2025State v. Willits, 96 Ariz. 184, 191 (1964). ¶6 After briefing on the motion, the court held a hearing and denied Martell’s motion to dismiss and the Willits instruction request.

2025State v. Willits, 96 Ariz. 184, 191 (1964). ¶6 After briefing on the motion, the court held a hearing and denied Martell’s motion to dismiss and the Willits instruction request.

2026State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). 6 STATE v. WHIPPLE Decision of the Court ¶24 Generally, a court must give a Willits instruction if: (1) the state failed to preserve “obviously material” evidence that had a “tendency to exonerate” the defendant; and (2) prejudice resulted.

2026State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). 6 STATE v. WHIPPLE Decision of the Court ¶24 Generally, a court must give a Willits instruction if: (1) the state failed to preserve “obviously material” evidence that had a “tendency to exonerate” the defendant; and (2) prejudice resulted.

2026State v. Murray, 184 Ariz. 9, 33 (1995). ¶37 A Willits instruction permits jurors to draw an adverse inference if the State lost, destroyed, or failed to preserve evidence that was potentially helpful to the defendant.

2026State v. Murray, 184 Ariz. 9, 33 (1995). ¶37 A Willits instruction permits jurors to draw an adverse inference if the State lost, destroyed, or failed to preserve evidence that was potentially helpful to the defendant.

2026See Fulminante, 193 Ariz. at 503, ¶ 62 (“A trial court does not abuse its discretion by denying a request for a Willits instruction when a defendant fails to establish that the lost evidence would have had a tendency to exonerate him.”); see also State v. Olivieri, No. 2 CA-CR 2023- 0226, 2025 WL 604765 at *4, 5, ¶¶ 20, 23 (Ariz. App. Feb. 25, 2025) (mem. decision) (defendant was charged with second-degree murder and other crimes based on shooting in parking lot that was partly captured on security video, but which contained “thirty-four seconds” of “unviewable” footage; holding that trial cou

2025See State v. Fulminante, 193 Ariz. 485, 503, ¶ 63 (1999) (affirming the denial of a Willits instruction when it was "highly questionable" that the evidence was exculpatory); State v. Davis, 205 Ariz. 174, 180, ¶ 38 (App. 2002) (affirming the denial of a Willits instruction because defendant's claim that the items may have produced exculpatory evidence was "sheer speculation"). ¶26 Because the State had no reason to suspect Diaz's defense would require a blood sample, the superior court did not abuse its discretion in denying his request for a Willits instruction.

2022We review the court’s ruling for an abuse of discretion, Glissendorf, 235 Ariz. at 150, ¶ 7 , and will not upset its decision “if the result was legally correct for any reason,” State v. Perez, 141 Ariz. 459, 464 (1984) (citations omitted). ¶11 Assuming the State did, in fact, lose or destroy a recording of a law enforcement interview with the witness, Dean was not entitled to a Willits instruction because the value of the recording to the defense was speculative.

2022We review the court’s ruling for an abuse of discretion, Glissendorf, 235 Ariz. at 150, ¶ 7 , and will not upset its decision “if the result was legally correct for any reason,” State v. Perez, 141 Ariz. 459, 464 (1984) (citations omitted). ¶11 Assuming the State did, in fact, lose or destroy a recording of a law enforcement interview with the witness, Dean was not entitled to a Willits instruction because the value of the recording to the defense was speculative.

2025State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). ¶23 A defendant is entitled to a Willits instruction when: "(1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." Id. at ¶ 8 (quoting State v. Smith, 158 Ariz. 222, 227 (1988)).

2025State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). ¶23 A defendant is entitled to a Willits instruction when: "(1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." Id. at ¶ 8 (quoting State v. Smith, 158 Ariz. 222, 227 (1988)).

2019That being the case obviously, because you had the opportunity if it's going to be an identification case-because you have the opportunity to discuss regarding what they could have done to further identify him and that's already in the record, I'm going to deny the motion because I don't think a Willits instruction is necessary under those circumstances. *38 ¶16 Concerning the standard a defendant must satisfy to obtain a Willits instruction, our supreme court recently held: "To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reas

2019That being the case obviously, because you had the opportunity if it's going to be an identification case-because you have the opportunity to discuss regarding what they could have done to further identify him and that's already in the record, I'm going to deny the motion because I don't think a Willits instruction is necessary under those circumstances. *38 ¶16 Concerning the standard a defendant must satisfy to obtain a Willits instruction, our supreme court recently held: "To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reas

2019Id . ¶¶ 1, 19. ¶34 Hunter , 136 Ariz. 45 , 664 P.2d 195 , and State v. Leslie , 147 Ariz. 38 , 708 P.2d 719 (1985), also illustrate defenses sufficient to permit a Willits instruction.

2019Id . ¶¶ 1, 19. ¶34 Hunter , 136 Ariz. 45 , 664 P.2d 195 , and State v. Leslie , 147 Ariz. 38 , 708 P.2d 719 (1985), also illustrate defenses sufficient to permit a Willits instruction.

2019See State v. Murray, 184 Ariz. 9, 33 (1995) (defendant is not entitled to a Willits instruction “merely because a more exhaustive investigation could have been made”); State v. Willcoxson, 156 Ariz. 343, 346 (App. 1987) (“We do not believe that a failure to pursue every lead or gather every conceivable bit of physical evidence will require a Willits instruction.”).

2019See State v. Murray, 184 Ariz. 9, 33 (1995) (defendant is not entitled to a Willits instruction “merely because a more exhaustive investigation could have been made”); State v. Willcoxson, 156 Ariz. 343, 346 (App. 1987) (“We do not believe that a failure to pursue every lead or gather every conceivable bit of physical evidence will require a Willits instruction.”).

2024See State v. Youngblood, 173 Ariz. 502, 507 (1993) (noting that a Willits instruction is inadequate when “the [S]tate acts in bad faith or the defendant suffers prejudice-in-fact”).

2024See State v. Youngblood, 173 Ariz. 502, 507 (1993) (noting that a Willits instruction is inadequate when “the [S]tate acts in bad faith or the defendant suffers prejudice-in-fact”).

2019See generally State v. Laird, 186 Ariz. 203, 206 (1996) (finding the evidence so strong, and the defense so incredible, that the court could say with certainty that the defendant was not denied a fair trial); Reffitt, 145 Ariz. at 462 (concluding that, even if the appellant had been entitled to a Willits instruction, he was not prejudiced because there existed “no reasonable possibility that the assigned error contributed to the jury’s verdict”).

2019See generally State v. Laird, 186 Ariz. 203, 206 (1996) (finding the evidence so strong, and the defense so incredible, that the court could say with certainty that the defendant was not denied a fair trial); Reffitt, 145 Ariz. at 462 (concluding that, even if the appellant had been entitled to a Willits instruction, he was not prejudiced because there existed “no reasonable possibility that the assigned error contributed to the jury’s verdict”).

2025See Hernandez, 250 Ariz. at 33, ¶ 19 (denying a requested Willits instruction because police "had no knowledge that [the defendant] would later assert" an alternate defense); State v. Tyler, 149 Ariz. 312, 317 (App. 1986) (affirming the denial of a Willits instruction because the State has "no duty to seek out and gain" evidence unless "it is aware" the evidence is material to the defense).

2025See Hernandez, 250 Ariz. at 33, ¶ 19 (denying a requested Willits instruction because police "had no knowledge that [the defendant] would later assert" an alternate defense); State v. Tyler, 149 Ariz. 312, 317 (App. 1986) (affirming the denial of a Willits instruction because the State has "no duty to seek out and gain" evidence unless "it is aware" the evidence is material to the defense).

2020We “will not reverse [the decision to refuse a jury instruction] absent a clear abuse of that discretion.” State v. Bolton, 182 Ariz. 290, 309 (1995). ¶10 Generally, a defendant is entitled to a Willits instruction if: (1) the state failed to preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused; and (2) there was resulting prejudice.

2020We “will not reverse [the decision to refuse a jury instruction] absent a clear abuse of that discretion.” State v. Bolton, 182 Ariz. 290, 309 (1995). ¶10 Generally, a defendant is entitled to a Willits instruction if: (1) the state failed to preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused; and (2) there was resulting prejudice.

2024“A Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant.” State v. Lopez, 163 Ariz. 108, 113 (1990).

2024“A Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant.” State v. Lopez, 163 Ariz. 108, 113 (1990).

2025Because a Willits instruction “ordinarily concerns physical evidence,” the inference may be given “if the state permits evidence within its control to be destroyed.” State v. Broughton, 156 Ariz. 394, 399 (1988). ¶11 Entitlement to a Willits instruction requires the defendant to prove (1) the State’s failure to preserve obviously material and reasonably accessible evidence which could potentially exonerate him and (2) the failure resulted in prejudice.

2025Because a Willits instruction “ordinarily concerns physical evidence,” the inference may be given “if the state permits evidence within its control to be destroyed.” State v. Broughton, 156 Ariz. 394, 399 (1988). ¶11 Entitlement to a Willits instruction requires the defendant to prove (1) the State’s failure to preserve obviously material and reasonably accessible evidence which could potentially exonerate him and (2) the failure resulted in prejudice.

2022See Perez, 141 Ariz. at 464 (finding no prejudice from the State’s destruction of a videotape capturing the charged robbery where there was no evidence to suggest that the videotape would have provided material that could be used to impeach the victim’s testimony). ¶12 Even if the superior court’s refusal to give a Willits instruction were erroneous, reversal would not be warranted because the State has established “beyond a reasonable doubt that the error did not contribute to or affect the verdict[s].” State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005).

2022See Perez, 141 Ariz. at 464 (finding no prejudice from the State’s destruction of a videotape capturing the charged robbery where there was no evidence to suggest that the videotape would have provided material that could be used to impeach the victim’s testimony). ¶12 Even if the superior court’s refusal to give a Willits instruction were erroneous, reversal would not be warranted because the State has established “beyond a reasonable doubt that the error did not contribute to or affect the verdict[s].” State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005).

2016See State v. Hansen, 156 Ariz. 291, 294-95 , 751 P.2d 951, 954-55 (1988) (holding that court did not abuse its discretion in denying Willits instruction when similar photographs to those missing were presented at trial); see also State v. Willcoxson, 156 Ariz. 343, 346 , 751 P.2d 1385, 1388 (App. 1987) (stating “failure to pursue every lead or gather every conceivable bit of physical evidence” does not require Willits instruction).

2016See State v. Hansen, 156 Ariz. 291, 294-95 , 751 P.2d 951, 954-55 (1988) (holding that court did not abuse its discretion in denying Willits instruction when similar photographs to those missing were presented at trial); see also State v. Willcoxson, 156 Ariz. 343, 346 , 751 P.2d 1385, 1388 (App. 1987) (stating “failure to pursue every lead or gather every conceivable bit of physical evidence” does not require Willits instruction).

2020Cf. State v. Tucker, 157 Ariz. 433 , 441–42 (1988) (recounting expert testimony “that a person may or may not leave a fingerprint after touching an object” and “it would be easy, either intentionally or unintentionally, to wipe off fingerprints . . . with a cloth”). ¶22 Hernandez failed to prove either of the two parts of the first prong of the Willits test—namely, that the evidence was “obviously material” and “had a tendency to exonerate him.” See Glissendorf, 235 Ariz. at 152 ¶ 18.

2020Cf. State v. Tucker, 157 Ariz. 433 , 441–42 (1988) (recounting expert testimony “that a person may or may not leave a fingerprint after touching an object” and “it would be easy, either intentionally or unintentionally, to wipe off fingerprints . . . with a cloth”). ¶22 Hernandez failed to prove either of the two parts of the first prong of the Willits test—namely, that the evidence was “obviously material” and “had a tendency to exonerate him.” See Glissendorf, 235 Ariz. at 152 ¶ 18.

2019"An error of law constitutes an abuse of discretion." State v. Cheatham , 240 Ariz. 1 , ¶ 6, 375 P.3d 66 (2016). ¶14 In a Willits instruction, the jury is told that if it finds "that the state ... allowed material evidence to be destroyed," or, in some circumstances failed to preserve evidence, it may "infer that the evidence would be against the interests of the state." State v. Hunter , 136 Ariz. 45 , 50, 664 P.2d 195 , 200 (1983) (instruction required after destruction of evidence) (citing Willits ); see also State v. Perez , 141 Ariz. 459 , 464, 687 P.2d 1214 , 1219 (1984) (instruction req

2019"An error of law constitutes an abuse of discretion." State v. Cheatham , 240 Ariz. 1 , ¶ 6, 375 P.3d 66 (2016). ¶14 In a Willits instruction, the jury is told that if it finds "that the state ... allowed material evidence to be destroyed," or, in some circumstances failed to preserve evidence, it may "infer that the evidence would be against the interests of the state." State v. Hunter , 136 Ariz. 45 , 50, 664 P.2d 195 , 200 (1983) (instruction required after destruction of evidence) (citing Willits ); see also State v. Perez , 141 Ariz. 459 , 464, 687 P.2d 1214 , 1219 (1984) (instruction req

2025See State v. Fulminante, 193 Ariz. 485, 503, ¶ 63 (1999) (affirming the denial of a Willits instruction when it was "highly questionable" that the evidence was exculpatory); State v. Davis, 205 Ariz. 174, 180, ¶ 38 (App. 2002) (affirming the denial of a Willits instruction because defendant's claim that the items may have produced exculpatory evidence was "sheer speculation"). ¶26 Because the State had no reason to suspect Diaz's defense would require a blood sample, the superior court did not abuse its discretion in denying his request for a Willits instruction.

2025See State v. Fulminante, 193 Ariz. 485, 503, ¶ 63 (1999) (affirming the denial of a Willits instruction when it was "highly questionable" that the evidence was exculpatory); State v. Davis, 205 Ariz. 174, 180, ¶ 38 (App. 2002) (affirming the denial of a Willits instruction because defendant's claim that the items may have produced exculpatory evidence was "sheer speculation"). ¶26 Because the State had no reason to suspect Diaz's defense would require a blood sample, the superior court did not abuse its discretion in denying his request for a Willits instruction.

2016“To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice.” State v. Torres, 162 Ariz. 70, 76 (App. 1989) (citation omitted).

2016“To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice.” State v. Torres, 162 Ariz. 70, 76 (App. 1989) (citation omitted).

2024Our supreme court affirmed the dismissal of charges because the defendant had “been so seriously prejudiced by the loss of evidence that he has been denied due process and that the giving of a Willits instruction will not assure him a fair trial.” Id. at 2 .

2024Our supreme court affirmed the dismissal of charges because the defendant had “been so seriously prejudiced by the loss of evidence that he has been denied due process and that the giving of a Willits instruction will not assure him a fair trial.” Id. at 2 .

2015Thus, "[t]he 'tendency to exonerate’ test is not the same as that for a violation of due process.” Id. "[T]he test for a violation of due process depends on the subjective intent of law enforcement, while the test for giving a Willits instruction is explicitly intended to cover innocent destruction.” Id.

2015Thus, "[t]he 'tendency to exonerate’ test is not the same as that for a violation of due process.” Id. "[T]he test for a violation of due process depends on the subjective intent of law enforcement, while the test for giving a Willits instruction is explicitly intended to cover innocent destruction.” Id.

2026See State v. Dunlap, 187 Ariz. 441, 464 (App. 1996) (holding that trial court did not err in refusing to give Willits instruction based on purported removal of documents from police file; defendant’s claim that “allegedly missing” documents “would have supported his theory of the case” was “entirely speculative” because documents’ “contents” were “unknown”).

2026See State v. Dunlap, 187 Ariz. 441, 464 (App. 1996) (holding that trial court did not err in refusing to give Willits instruction based on purported removal of documents from police file; defendant’s claim that “allegedly missing” documents “would have supported his theory of the case” was “entirely speculative” because documents’ “contents” were “unknown”).

2025State v. Geotis, 187 Ariz. 521, 525 (App. 1996), addressed the first element a defendant needs to show for a Willits instruction.

2025State v. Geotis, 187 Ariz. 521, 525 (App. 1996), addressed the first element a defendant needs to show for a Willits instruction.

2015See State v. Watkins, 126 Ariz. 293, 302 (1980) (Willits instruction properly refused when evidence had "no evidentiary value"); State v. Garrison, 120 Ariz. 255, 259 (1978) (same). ¶12 There likewise was no error by the superior court in refusing to give a Willits instruction in regards to the State's failure to preserve the storage facility security video.

2015See State v. Watkins, 126 Ariz. 293, 302 (1980) (Willits instruction properly refused when evidence had "no evidentiary value"); State v. Garrison, 120 Ariz. 255, 259 (1978) (same). ¶12 There likewise was no error by the superior court in refusing to give a Willits instruction in regards to the State's failure to preserve the storage facility security video.

2020HERNANDEZ Opinion of the Court Rivera, 152 Ariz. 507 , 511–12 (1987); see also State v. Murray, 184 Ariz. 9, 33 (1995) (“A Willits instruction is not given merely because a more exhaustive investigation could have been made.”).

2020HERNANDEZ Opinion of the Court Rivera, 152 Ariz. 507 , 511–12 (1987); see also State v. Murray, 184 Ariz. 9, 33 (1995) (“A Willits instruction is not given merely because a more exhaustive investigation could have been made.”).

2015See State v. Watkins, 126 Ariz. 293, 302 (1980) (Willits instruction properly refused when evidence had "no evidentiary value"); State v. Garrison, 120 Ariz. 255, 259 (1978) (same). ¶12 There likewise was no error by the superior court in refusing to give a Willits instruction in regards to the State's failure to preserve the storage facility security video.

2015See State v. Watkins, 126 Ariz. 293, 302 (1980) (Willits instruction properly refused when evidence had "no evidentiary value"); State v. Garrison, 120 Ariz. 255, 259 (1978) (same). ¶12 There likewise was no error by the superior court in refusing to give a Willits instruction in regards to the State's failure to preserve the storage facility security video.

2025See Hernandez, 250 Ariz. at 33, ¶ 19 (denying a requested Willits instruction because police "had no knowledge that [the defendant] would later assert" an alternate defense); State v. Tyler, 149 Ariz. 312, 317 (App. 1986) (affirming the denial of a Willits instruction because the State has "no duty to seek out and gain" evidence unless "it is aware" the evidence is material to the defense).

2025See Hernandez, 250 Ariz. at 33, ¶ 19 (denying a requested Willits instruction because police "had no knowledge that [the defendant] would later assert" an alternate defense); State v. Tyler, 149 Ariz. 312, 317 (App. 1986) (affirming the denial of a Willits instruction because the State has "no duty to seek out and gain" evidence unless "it is aware" the evidence is material to the defense).