Or, Seeking Dismissal Based on the State's Destruction of Evidence Unpublished court of appeals opinions occasionally assume the cache of bootleg recordings of live performances of the Grateful Dead. If you’ve got your hands on a good one, the real value is in sharing it with an appreciative audience. One such opinion making the rounds of late is State v. Absher, 2010 WL 3860501 (N.C. Ct. App. October 5, 2010). Absher affirmed the trial court’s dismissal with prejudice of charges against the defendant arising from an altercation with the Wilkes County Sheriff’s Department in which the defendant suffered a fractured skull and a serious brain injury. The trial court dismissed the charges after determining that notwithstanding numerous requests from the defendant’s attorney for a videotape of the defendant in the intake center at the time of the altercation, the sheriff’s department modified the video, preserving only certain images, and destroyed the original. The court of appeals agreed with the trial court that the state’s destruction of the videotape was a flagrant violation of the defendant’s constitutional rights that irreparably prejudiced his defense; thus, there was no remedy but to dismiss the prosecution. The appellate court relied upon State v. Williams, 362 N.C. 628 (2008), and rejected the premise that that Arizona v. Youngblood, 488 U.S. 51 (1988), controlled. In Youngblood, the United States Supreme Court held that the police’s failure to preserve potentially useful evidence constitutes a due process violation only if the defendant can show bad faith on the part [...]
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