What is a Trombetta motion?

A Trombetta motion seeks to dismiss a case or obtain a favorable jury instruction because the government destroyed potentially useful evidence.

A Court May Dismiss An Action Due To The Government’s Failure to Preserve Potentially Useful Evidence
- Standard of Review

The California Supreme Court has noted the standard of review of a trial court’s ruling on a Trombetta motion as follows:

“A trial court’s ruling on a Trombetta motion is upheld on appeal if a reviewing court finds substantial evidence supporting the ruling. (People v. Memro (1995) 11 Cal.4th 786, 831 [47 Cal. Rptr. 2d 219, 905 P.2d 1305].)” (People v. Montes (2014) 58 Cal.4th 809, 837 [169 Cal.Rptr.3d 279, 320 P.3d 729].)

Federal review distinguishes between the holding and the factual findings of the trial court. A district court’s holding is reviewed de novo and its findings of fact are reviewed under the clear error standard.

“The district court’s holding that Zaragoza’s due process rights were not violated by the government’s failure to preserve potentially exculpatory evidence is reviewed de novo. United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013). Factual findings, such as the district court’s finding that the government’s actions did not amount to bad faith, are reviewed for clear error. Id. ‘ ‘[R]eview under the clearly erroneous standard is significantly deferential, requiring a definite and firm conviction that a mistake has been committed.’ ’ ‘ McMillan v. United States, 112 F.3d 1040, 1044 (9th Cir. 1997) (quoting Concrete Pipe and Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 623, 113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993)).”

(United States v. Zaragoza-Moreira (9th Cir. 2015) 780 F.3d 971, 977.)

Applicable Legal Standard

The current state of the law is described as follows:

“ ‘The state has a duty to preserve evidence that both possesses ‘an exculpatory value that was apparent before the evidence was destroyed,’ and is of ‘such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ (California v. Trombetta (1984) 467 U.S. 479, 489 [81 L. Ed. 2d 413, 104 S. Ct. 2528] (Trombetta).) However, a constitutional violation is not established unless the authorities acted in bad faith in failing to preserve potentially useful evidence. (Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L. Ed. 2d 281, 109 S. Ct. 333] (Youngblood).)’ (People v. Schmeck (2005) 37 Cal.4th 240, 283 [33 Cal. Rptr. 3d 397, 118 P.3d 451].)”

(People v. Carrasco (2014) 59 Cal.4th 924, 961 [175 Cal.Rptr.3d 538, 330 P.3d 859].)

“In California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), the Supreme Court held that ‘the government violates the defendant’s right to due process if the unavailable evidence possessed ‘exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’’ United States v. Cooper, 983 F.2d 928, 931 (1993) (quoting Trombetta, 467 U.S. at 489). The Court subsequently added a third requirement for establishing a due process violation in Arizona v. Youngblood, 488 U.S. 51, 57—58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), holding that the defendant must demonstrate that the government acted in bad faith in failing to preserve the potentially useful evidence. See also Cooper, 983 F.2d at 931.

As this court explained in Cooper, ‘Youngblood’s bad faith requirement dovetails with the first part of the Trombetta test: that the exculpatory value of the evidence be apparent before its destruction.’ Id. The presence or absence of bad faith turns on the government’s knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed, because without knowledge of the potential usefulness of the evidence, the evidence could not have been destroyed in bad faith. Youngblood, 488 U.S. at 56 n.*; Sivilla, 714 F.3d at 1172; United States v. Leal-Del Carmen, 697 F.3d 964, 970 (9th Cir. 2012) (‘When the government doesn’t know what a witness will say, it doesn’t act in bad faith in deporting him . . . . The question of bad faith thus turns on what the government knew at the time it deported the witness.’).”

(United States v. Zaragoza-Moreira, supra, 780 F.3d at 977-978.)

In Zaragoza-Moreira, the Ninth Circuit reversed a district court’s holding that failing to preserve a surveillance video of the Defendant waiting to go through customs into the United States did not require dismissal:

“Defendant Estefani Zaragoza-Moreira (‘Zaragoza’) conditionally pled guilty to importing methamphetamine into the United States in violation of 21 U.S.C. §§ 952 and 960. She now appeals the district court’s denial of her motion to dismiss the indictment on the basis that the government destroyed potentially useful evidence that might have supported her claim of duress. Zaragoza argues that the district court erred by finding that the government did not act in bad faith and, consequently, did not violate her due process rights in failing to preserve the evidence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.”

(United States v. Zaragoza-Moreira, supra, 780 F.3d at 974.)

The Defendant Is Unable To Obtain Comparable Evidence By Other Reasonably Available Means

“Second, that the missing evidence is ‘of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984); Cooper, 983 F.2d at 931.” (United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013).)

The Zaragoza-Moreira Court explained what no comparable evidence means within the context of the destroyed surveillance video:

“The government argues that Zaragoza has not met her burden to show a lack of reasonably available comparable evidence. According to the government, comparable evidence is available in the form of defendant’s own testimony concerning her duress claim and cross-examination of ‘the Customs and Border Patrol officers about her demeanor, whether she attempted to withdraw from the crime, and whether they were aware of her attempts to call their attention to the people who allegedly threatened her.’ We again disagree.

The government has not suggested any reasonably available evidence that would be comparable to the destroyed video footage of the Port of Entry pedestrian line. The government’s argument that in lieu of the destroyed video footage Zaragoza could testify at trial concerning her conduct in the Port of Entry line, runs afoul of Zaragoza’s Fifth Amendment right against self-incrimination, by essentially forcing her to testify in her own defense. Notwithstanding the obvious Fifth Amendment implications triggered by the government’s argument, Zaragoza’s self-serving testimony, especially in light of her substantial cognitive disabilities, would not be comparable to video footage that recorded her actions while in the pedestrian line. Cross examination of the border inspectors regarding Zaragoza’s behavior in the pedestrian line would also be incomparable, because neither the primary nor secondary inspectors observed Zaragoza while she waited in line. Consequently, we conclude that Zaragoza is unable to find comparable evidence to support her duress defense.”

(United States v. Zaragoza-Moreira, 780 F.3d 971, 981-982 (9th Cir. 2015).)

The Evidence Was Potentially Useful

“Applying the requisite test above, the district court found that while the video footage was potentially useful evidence, its exculpatory value was not readily apparent to Agent Alvarado. Without addressing the AUSA’s actions, or lack thereof, in light of the December 28, 2011, letter from defense counsel requesting the preservation of video evidence, the district court held that ‘[t]he facts and circumstances of this case do not support a finding that Agent Alvarado or counsel for the government destroyed potentially exculpatory evidence in bad faith.’

Zaragoza concedes on appeal that the destroyed video footage was not materially exculpatory, but was, as found by the district court, potentially useful evidence. While the government does not admit that the evidence was potentially useful, it does not present any argument to the contrary. Potentially useful evidence, as defined in Youngblood, is ‘evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ Youngblood, 488 U.S. at 57.”

(United States v. Zaragoza-Moreira, supra, 780 F.3d at 978.)

The Potentially Useful Value Of The Evidence Was Apparent Before Its Destruction

“The district court, however, clearly erred in finding that the exculpatory value of the video footage of the Port of Entry pedestrian line was not readily apparent to Agent Alvarado. As discussed above, when potentially useful evidence has been destroyed by the government, the bad faith inquiry initially ‘turns on the government’s knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed.’ Sivilla, 714 F.3d at 1172 (internal quotes omitted); Leal-Del Carmen, 697 F.3d at 970; Cooper, 983 F.2d at 931. A review of the interview transcript establishes Agent Alvarado’s knowledge of the potentially exculpatory value of the pedestrian line video before it was destroyed.”

(United States v. Zaragoza-Moreira, supra, 780 F.3d at 978-979.)

Remedy

In 1980, the California Supreme Court discussed what remedies the trial court may fashion regarding destroyed evidence:

“We first observe that the courts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence. ‘[Not] every suppression of evidence requires dismissal of charges. . . . The remedies to be applied need be only those required to assure the defendant a fair trial.’ ( Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 363 [150 Cal.Rptr. 216]; see Dell M. v. Superior Court, supra, 70 Cal.App.3d 782, 788.)

Review of prior cases suggests the factors that guide the exercise of that discretion. First, ‘the imposition and mode of sanctions depends upon the particular circumstances attending such loss or destruction.’ ( People v. Hitch, supra, 12 Cal.3d 641, 650 [117 Cal.Rptr. 9, 527 P.2d 361].) Thus lawful and proper destruction requires no sanction ( Pope, supra, 83 Cal.App.3d 795; Robinson v. Superior Court, supra, 76 Cal.App.3d 968); illegal and malicious suppression of evidence may result in dismissal (see People v. Mejia (1976) 57 Cal.App.3d 574 [129 Cal.Rptr. 192]; Dell M. v. Superior Court, supra, 70 Cal.App.3d 782).

Second, the sanction depends on the materiality of the evidence suppressed. In Hitch, for example, we noted that bad faith destruction of evidence which might conclusively demonstrate innocence could require dismissal. (12 Cal.3d 641, 653, fn. 7.) Suppression of evidence which might impeach a witness for bias, however, may result in a new trial instead of a dismissal ( Giglio v. United States, supra, 405 U.S. 150); suppression of evidence immaterial to the charge invokes no sanction (see Dell M. v. Superior Court, supra, 70 Cal.App.3d 782, 788).

Finally, the courts must consider the impact of the sanction upon future cases and future police conduct. If a sanction is to deter suppression of records and evidence, it must contain a punitive element; it must outweigh the benefit that the prosecution gains from the suppression. At the same time the court must bear in mind the public interest in law enforcement, and the harm which may be inflicted by a sanction which prevents the trial and conviction of possibly guilty future defendants.”

(People v. Zamora (1980) 28 Cal.3d 88, 99-100 [167 Cal.Rptr. 573, 615 P.2d 1361] [hereinafter “Zamora”].) The Zamora Court ultimately decided that an ameliorative jury instruction sufficed in that situation to correct the destruction of the records:

“For the foregoing reasons, we conclude that the appropriate sanction is that set out in the opinion of the Court of Appeal. According to that opinion, upon remand of this case, the court should instruct the jury that Officers Soelitz and Schroyer used excessive or unnecessary force on each occasion when complaints were filed against those officers, but that the complaint records later were destroyed. The court should also instruct the jury that they may rely upon that information to infer that the officers were prone to use excessive or unnecessary force (see Kelvin L. v. Superior Court, supra, 62 Cal.App.3d 823, 831) and that the officers’ testimony regarding incidents of alleged police force may be biased. (Cf. Cadena v. Superior Court (1978) 79 Cal.App.3d 212, 221-222 [146 Cal.Rptr. 390].)

In our opinion, the sanction of a jury instruction will adequately redress the actual harm done to defendant by the destruction of the complaints. It will not, of course, provide him with a live witness who can testify to past police misconduct. The instruction, however, substantially favors defendant in other respects. First, it assumes that the destroyed records would have led defendant to favorable evidence; in reality, defendant might not have been able even to locate the witnesses identified in the records or, if he had found them, the resulting testimony might have proven useless. Second, the instruction deprives the prosecution of the opportunity to rebut the evidence of past misconduct by the officers. Finally, it prohibits the jurors from rejecting such evidence, although in the absence of the instruction such rejection would have been their prerogative.

We would thus tailor the sanction to compensate for the exact wrong done; we would attempt to remedy the harm to the victims by giving them the approximate equivalent of the destroyed records of the complaints. We prefer this redress to the imposition on the officers of the drastic penalty of denial of current and future defenses.”

(Zamora, supra, 28 Cal.3d at 102-103.) Evidence Code section 412 states: “If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” (Evid. Code, § 412.)