FILED

September 20, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) FOR PUBLICATION

 )

Appellee, ) FILED: September 20, 1999

) 

v. ) WASHINGTON COUNTY

) 

MARVIN K. FERGUSON, ) HON. LYNN W. BROWN, JUDGE

)

 Appellant. ) NO. 03-S-01-9803-CR-00029

For Appellant: For Appellee:

DENNIS L. TOMLIN JOHN KNOX WALKUP

Hendersonville, TN Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

MICHAEL W. CATALANO

Assistant Attorney General

Nashville, TN

JOE C. CRUMLEY, JR.

District Attorney General

Johnson City, TN

OPINION

AFFIRMED BIRCH, J.
1Under Arizona v. Youngblood, unless a criminal defendant can

show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due

process of law.

2“Destroyed” includes lost evidence as well as evidence which

was not preserved.

3“Fundamental fairness” is a concept which, by necessity,

defies exact definition. As a general rule, however, a trial lacks

fundamental fairness where there are errors which call into

question the reliability of the outcome. See Lofton v. State, 898

S.W.2d 246, 248 (Tenn. Crim. App. 1994); see also Watkins v. State,

216 Tenn. 545, 552-53, 393 S.W.2d 141, 144 (1965)(“A fundamental

principle of Anglo-American law is that a person accused of a crime

is entitled to a fair and impartial trial by his peers.”); Betts v.

Brady, 316 U.S. 455, 462, 62 S. Ct. 1252, 1256, 86 L. Ed. 1595,

1602 (1942)(“Asserted denial[s of due process are] to be tested by

an appraisal of the totality of facts in a given case. That which

may, in one setting, constitute a denial of fundamental fairness,

shocking to the universal sense of justice, may, in other

2

The question presented for our determination is: What

are the factors which should guide the determination of the

consequences that flow from the State’s loss or destruction of

evidence which the accused contends would be exculpatory? The

State urges that we adopt the bad faith analysis announced in

Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d

281 (1988).1 Two reasons prompt us to reject this analysis: (1)

we find, under the circumstances, that the due process principles

of the Tennessee Constitution are broader than those enunciated in

the United States Constitution; and (2) fundamental fairness, as an

element of due process, requires that the State’s failure to

preserve evidence that could be favorable to the defendant be

evaluated in the context of the entire record.

Accordingly, we promulgate today an analysis in which the

critical inquiry is: Whether a trial, conducted without the

destroyed2 evidence, would be fundamentally fair?3 Using this
circumstances, and in the light of other considerations, fall short

of such denial.”).

4For a more complete description of this test, see State v.

Murphy, 953 S.W.2d 200 (Tenn. 1997).

5Murray could not remember conducting any sobriety tests other

than those in the field, although he admitted that it was normal

departmental procedure to conduct additional tests at the police

station.

3

analysis, we find that the appellant’s trial was a fundamentally

fair one despite the loss of the videotaped evidence. Accordingly,

and for the reasons herein stated, the judgment of the Court of

Criminal Appeals is affirmed.

I

At or near four o’clock on the morning of November 18,

1992, Officer Edwin A. Murray of the Johnson City Police Department

observed a van parked on an I-181 ramp with its engine running.

Murray approached the vehicle and observed Marvin K. Ferguson, the

appellant, “slumped” over the steering wheel. Upon opening the

door and awakening Ferguson, Murray smelled a strong odor of

alcohol and noticed that Ferguson’s speech was slurred. Murray

administered two field sobriety tests: namely, heel-to-toe and

horizontal gaze nystagmus.4 Concluding from these tests and from

his other observations that Ferguson was under the influence of an

intoxicant, Murray arrested him and transported him to the police

station where additional field sobriety tests were apparently

conducted.5 These additional tests were recorded on a videotape

which was inadvertently “taped over” before anyone could view it.
6Ferguson’s medical expert described scotoma as being a type

of visual disturbance followed by dizziness, hesitant speech,

nausea, and a throbbing headache.

4

At trial, Ferguson’s theory was that he occasionally

suffered from vascular or migraine-type headaches that included

scotoma,

6 which affected his vision and coordination. He testified

that he had suffered just such a headache prior to his arrest. To

support his theory, Ferguson presented expert medical testimony

describing this condition and explaining that during a “spell”

Ferguson’s conduct could be perceived by a layperson as the result

of alcohol intoxication.

II

The Due Process Clause of the Fourteenth Amendment to the

United States Constitution provides for every defendant the right

to a fair trial. To facilitate this right, a defendant has a

constitutionally protected privilege to request and obtain from the

prosecution evidence that is either material to guilt or relevant

to punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,

1196, 10 L. Ed. 2d 215, 218 (1963). Even in the absence of a

specific request, the prosecution has a constitutional duty to turn

over exculpatory evidence that would raise a reasonable doubt about

a defendant’s guilt. United States v. Agurs, 427 U.S. 97, 110-11,

96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342, 353-54 (1976).

The analysis of both Brady and Agurs concerns the

prosecution’s suppression of “plainly exculpatory” evidence. This

strikes a sharp contrast to the case under review wherein the
5

existence of the destroyed videotape was known to the defense but

where its true nature (exculpatory, inculpatory, or neutral) can

never be determined.

The question that we address today is what consequences

flow from the State’s loss or destruction of evidence alleged to

have been exculpatory. Ferguson alleges that his due process

rights were violated by the destruction of the videotape of the

field sobriety tests administered at the police station. On the

other hand, the State’s contention is that because the evidentiary

nature of the videotape can never be known, the appropriate

analysis should inquire into the State’s bad faith (or lack of it)

in the destruction of the evidence. See Arizona v. Youngblood, 488

U.S. at 57-58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289. 

Youngblood is the leading federal case regarding the loss

or destruction of evidence. In Youngblood, the police’s failure to

refrigerate a sodomy victim’s semen-stained clothing precluded

testing, the result of which might have exonerated the accused.

The United States Supreme Court held that “unless a criminal

defendant can show bad faith on the part of the police, failure to

preserve potentially useful evidence does not constitute a denial

of due process of law.” Id. at 58, 109 S. Ct. at 337, 102 L. Ed.

2d at 289. Thus the Court concluded that the State had no

constitutional duty to preserve the clothing even though testing

may have been useful to the accused. 
6

Several states have embraced the bad faith analysis of

Youngblood and found that a similar showing of bad faith is

required under their respective constitutions. See, e.g., Collins

v. Commonwealth, 951 S.W.2d 569 (Ky. 1997); State v. Drdak, 411

S.E.2d 604 (N.C. 1992); State v. Ortiz, 831 P.2d 1060 (Wash. 1992)

(holding that no analytic basis existed to interpret Washington’s

due process clause more broadly than the federal provisions);

accord State v. Copeland, 922 P.2d 1304 (Wash. 1996). The Georgia

Supreme Court has agreed that to establish a due process violation

a defendant must prove bad faith, but the court also required the

trial court to consider the materiality of the lost or destroyed

evidence. Walker v. State, 449 S.E.2d 845, 848 (Ga. 1994).

Other states have recognized that “[t]here may well be

cases in which the defendant is unable to prove that the State

acted in bad faith but in which the loss or destruction of evidence

is nonetheless so critical to the defendant as to make a criminal

trial fundamentally unfair.” Youngblood, 488 U.S. at 61, 109 S.

Ct. at 339, 102 L. Ed. 2d at 291 (Stevens, J., concurring in the

result). These states have rejected a pure Youngblood analysis,

focusing instead on the materiality of the unavailable evidence in

determining whether a due process violation has occurred. See,

e.g., Ex parte Gingo, 605 So. 2d 1237 (Ala. 1992); Thorne v.

Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989); State v.

Matafeo, 737 P.2d 671 (Haw. 1990); Commonwealth v. Henderson, 532

N.E.2d 496 (Mass. 1991); State v. Osakalumi, 461 S.E.2d 504 (W.

Va. 1995). 
7The Alaska Supreme Court adopted a similar approach which

requires the court to first determine whether the state has a duty

to “preserve and make available to a criminal defendant material

evidence which may prove important in the preparation of the

accused’s defense.” Thorne v. Department of Pub. Safety, 774 P.2d

at 1330. If the duty to preserve was breached, the court must then

ascertain the consequences that flow from this breach, which is

determined by the degree of culpability on the part of the state,

the importance of the evidence lost, the prejudice suffered by the

accused, and the evidence of guilt adduced at the trial or hearing.

Id. at 1331.

8Tenn. Const. art. I, § 8, provides “[t]hat no man shall be

taken or imprisoned, or disseized of his freehold, liberties or

privileges, or outlawed, or exiled, or in any manner destroyed or

deprived of his life, liberty or property, but by the judgment of

his peers or the law of the land.” 

7

Several of these states have determined that due process

claims arising out of lost or destroyed evidence must be evaluated

using a “balancing” approach. As an example, the Delaware Supreme

Court, after having determined that the state breached a duty to

preserve evidence, employed a balancing approach which focuses on

the following three factors: (1) the degree of negligence or bad

faith involved; (2) the importance of the missing evidence,

considering the probative value and reliability of secondary or

substitute evidence that remains available; and (3) the sufficiency

of the other evidence used at trial to sustain the conviction.

Hammond v. State, 569 A.2d 81, 87 (Del. 1989).7 

We now must determine whether the bad faith analysis of

Youngblood adequately protects the right to a fair trial under the

due process clause of the Tennessee Constitution. See Tenn. Const.

art. I, § 88. Although this Court has previously construed Tenn.

Const. art. I, § 8, as “synonymous with the ‘due process of law’

provisions of the federal constitution,” State ex rel. Anglin v.

Mitchell, 596 S.W.2d 779, 786 (Tenn. 1980), we have also recognized
8

that “this Court, as the final arbiter of the Tennessee

Constitution, is always free to expand the minimum level of

protection mandated by the federal constitution.” Burford v.

State, 845 S.W.2d 204, 207 (Tenn. 1992). Thus, we will examine

Youngblood and explain why we reject its analysis. 

According to Youngblood, unless a criminal defendant can

show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due

process of law. In this regard, proving bad faith on the part of

the police would be, in the least, extremely difficult. In

addition, the Youngblood analysis apparently permits no

consideration of the materiality of the missing evidence or its

effect on the defendant’s case. The conclusion is that this

analysis substantially increases the defendant’s burden while

reducing the prosecution’s burden at the expense of the defendant’s

fundamental right to a fair trial. 

Because we deem the preservation of the defendant’s

fundamental right to a fair trial to be a paramount consideration

here, we join today those jurisdictions which have rejected the

Youngblood analysis in its pure form. In so doing, we adopt for

Tennessee a balancing approach similar to the one espoused by the

Supreme Court of Delaware in Hammond v. State, 569 A.2d 81, 87

(Del. 1989).

The first step in this analysis is to determine whether

the State had a duty to preserve the evidence. Generally speaking,
9See, e.g., Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at

1196, 10 L. Ed. 2d at, 218 (1963); United States v. Agurs, 427 U.S.

at 110-11, 96 S. Ct. at 2401, 49 L. Ed. 2d at 353-54 (1976).

10This factor presumes negligence in the loss or destruction

of the evidence. Should the proof show bad faith, the trial judge

may consider such action as may be necessary to protect the

defendant’s fair trial rights.

9

the State has a duty to preserve all evidence subject to discovery

and inspection under Tenn. R. Crim. P. 16, or other applicable

law.9 It is, however, difficult to define the boundaries of the

State’s duty to preserve evidence. This difficulty is recognized

in California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528,

2533-34, 81 L.Ed.2d 413 (1984). It held:

Whatever duty the Constitution

imposes on the States to preserve

evidence, that duty must be limited

to evidence that might be expected

to play a significant role in the

suspect’s defense. To meet this

standard of constitutional

materiality, evidence must both

possess an exculpatory value that

was apparent before the evidence was

destroyed, and be of such a nature

that the defendant would be unable

to obtain comparable evidence by

other reasonably available means.

If the proof demonstrates the existence of a duty to

preserve and further shows that the State has failed in that duty,

the analysis moves to a consideration of several factors which

should guide the decision regarding the consequences of the breach.

Those factors include:

1. The degree of negligence

involved;10

2. The significance of the

destroyed evidence, considered in
11Such an instruction may contain the following language:

The State has a duty to gather, preserve, and

produce at trial evidence which may possess exculpatory

value. Such evidence must be of a nature that the

defendant would be unable to obtain comparable evidence

through reasonably available means. The State has no

duty to gather or indefinitely preserve evidence

considered by a qualified person to have no exculpatory

value, so that an as yet unknown defendant may later

examine the evidence.

If, after considering all of the proof, you find

that the State failed to gather or preserve evidence, the

contents or qualities of which are in issue and the

production of which would more probably than not be of

benefit to the defendant, you may infer that the absent

evidence would be favorable to the defendant.

See State v. Willis, 393 P.2d 274, 276; See also California v.

Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d

413, 422 (1984).

10

light of the probative value and

reliability of secondary or

substitute evidence that remains

available; and

3. The sufficiency of the other

evidence used at trial to support

the conviction.

Of course, as previously stated, the central objective is

to protect the defendant’s right to a fundamentally fair trial.

If, after considering all the factors, the trial judge concludes

that a trial without the missing evidence would not be

fundamentally fair, then the trial court may dismiss the charges.

Dismissal is, however, but one of the trial judge’s options. The

trial judge may craft such orders as may be appropriate to protect

the defendant’s fair trial rights. As an example, the trial judge

may determine, under the facts and circumstances of the case, that

the defendant’s rights would best be protected by a jury

instruction.11
12The trial judge found that the tape “either could have helped

[Ferguson] or possibly could have helped the State.”

11

III

We now examine the case under submission in light of the

considerations mentioned above. Initially, the question is whether

the State had a duty to preserve the videotape. The exculpatory

nature of the evidence has considerable significance in resolving

that question. The exculpatory value of the videotape is, in our

view, tenuous. If the videotape showed Ferguson performing poorly

on the sobriety tests at the police station, then the cause of the

poor performance could either be intoxication, as urged by the

State, or a medical condition, as urged by Ferguson. If, on the

other hand, the videotape showed Ferguson performing satisfactorily

on the sobriety tests, then Ferguson’s theory that medical problems

caused him to appear intoxicated would be of questionable

validity.12 Though the videotape was probably of marginal

exculpatory value, it was at least “material to the preparation of

the defendant’s defense” and might have led the jury to entertain

a reasonable doubt about Ferguson’s guilt. Because the videotape

may have shed light on his appearance and condition on the morning

in question, the State had a duty to preserve the videotape as

potentially exculpatory evidence. In erasing the tape before the

defendant had an opportunity to view it, the State breached this

duty. Therefore, we must determine what consequences should flow

from this breach of duty. 
12

The first factor to consider in determining consequences

is the degree of negligence involved. Unquestionably, Ferguson has

failed to prove the State acted in bad faith in the destruction of

the evidence. The only conclusion remaining is that the evidence

was negligently destroyed, and we think the conduct was simple

negligence, as distinguished from gross negligence.

The second factor addresses the significance of the

missing evidence. Given the defendant’s contention that his

medical condition caused him to appear intoxicated, the videotape

may not have been probative of intoxication. As to the

availability of secondary evidence probative of the intoxication

issue, Ferguson adduced expert medical testimony. His expert

witness explained why the physical effects of his condition would

have looked like intoxication to the officer. Ferguson testified

about how his condition affected his balance and coordination, and

he related long-term problems with his lower extremities. In spite

of the unavailability of the videotape, Ferguson presented his

defense in as complete a manner as was possible without the

videotape.

The third factor to consider is the sufficiency of the

convicting evidence. The arresting officer smelled alcohol on

Ferguson’s breath and concluded from his observation that

Ferguson’s physical appearance and speech were indicative of

intoxication. Additionally, the arresting officer testified about

failed on-scene field sobriety tests that were not videotaped.
13

Thus, the evidence adduced was sufficient, as a matter of law, for

conviction.

Thus, it is abundantly clear to us that Ferguson was not

hindered in the full and complete exposition of his theory to the

jury. We conclude that he received a fundamentally fair trial and

that he experienced no measurable disadvantage because of the

unavailability of the videotaped evidence.

Accordingly, the judgment of the Court of Criminal

Appeals is affirmed, and the costs are taxed against the appellant.

______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Holder, Barker, JJ.

Drowota, J., not participating