IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 33069

STATE OF IDAHO,

 Plaintiff-Appellant,

v.

JON J. LEWIS,

 Defendant-Respondent.

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Boise, January 2007 Term

2007 Opinion No. 54

Filed: March 29, 2007

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Third Judicial District of the State of Idaho,

Canyon County. Honorable Juneal C. Kerrick, District Judge.

The decision of the district court is reversed.

Honorable Lawrence G. Wasden, Attorney General, Boise, for appellant.

Kenneth K. Jorgensen argued

Molly J. Huskey, State Appellate Public Defender, Boise, for respondent. Eric D.

Fredericksen argued.

SCHROEDER, Chief Justice.

The State appealed the district court’s grant of a motion in limine to suppress evidence

relating to an alleged confession. The Court of Appeals reversed the district court. This Court

granted review.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Lewis was arrested on an outstanding warrant during a routine traffic stop when he was

driving with two passengers. A search of the vehicle incident to the arrest revealed

methamphetamine under one of the seats. After being taken to jail, Lewis, allegedly waived his

right to remain silent and confessed to the arresting officer that the methamphetamine belonged
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to him. No other person was present during his interrogation. The officer made audio recordings

of both the traffic stop and the subsequent interrogation.

Lewis was charged with possession of a controlled substance under I.C. § 37-2732(c)(1).

He requested copies of the audio recordings, but for unknown reasons the audio files could not

be located on the police department’s computer system where the officer had attempted to save

them. Lewis filed a motion in limine to suppress evidence of his statements to the officer. The

district court granted the motion on the grounds that the loss of the recordings violated Lewis’

right to due process. The Court of Appeals reversed, holding that the exculpatory value of the

recordings was unknown and that the district court’s finding that the officer had not acted in bad

faith precluded finding a due process violation. Lewis petitioned for review.

II.

STANDARD OF REVIEW

On review of a case decided by the Court of Appeals, the Supreme Court directly reviews

the decision of the trial court, but gives serious consideration to the views of the Court of

Appeals. State v. Kerrigan, 143 Idaho 185, 187, 141 P.3d 1054, 1056 (2006). The trial court’s

factual findings are entitled to deference unless they are clearly erroneous, but the determination

as to whether constitutional requirements have been satisfied is freely reviewed. State v. Donato,

135 Idaho 469, 470, 20 P.3d 5, 6 (2001).

III.

THE CLAIM THAT ALL CUSTODIAL CONFESSIONS

MUST BE RECORDED IS MOOT

Lewis argues that the due process clause of the Idaho Constitution requires that all

custodial confessions be recorded.1

 Alaska has adopted such a position under the Alaska

Constitution. Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) (“[W]e hold that an

unexcused failure to electronically record a custodial interrogation conducted in a place of

detention violates a suspect’s right to due process, under the Alaska Constitution, and that any

statement thus obtained is generally inadmissible.”). Idaho rejected the Stephan rule in State v.

Rhoades, 119 Idaho 594, 601, 809 P.2d 455, 462 (1991) (Johnson, J., concurring):

We cannot accept the contention that in order to be admissible, statements made

in custody must be tape recorded by the police. The defense cites an Alaska case,

 

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 No such requirement inheres under federal law. United States v. Smith-Baltiher, 424 F.3d 913,

925-26 (9th Cir. 2005).
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[Stephan], holding that custodial confessions must be tape recorded in order to be

admissible under the due process clause of the Alaska State Constitution. That

case represents no more than the prerogative of each state to extend the

protections of its own constitution beyond the parameters of federal constitutional

guarantees. We decline to adopt Alaska’s standard in Idaho.

Accord State v. Rhoades, 121 Idaho 63, 73, 822 P.2d 960, 970 (1991); State v. Rhoades, 120

Idaho 795, 804-05, 820 P.2d 665, 674-75 (1991). Every other state that has considered the issue

has similarly declined to reach such a rule on due process grounds.

Alternatively, Lewis urges the Court to exercise its supervisory power and hold that all

questioning shall be recorded when electronically feasible and must be recorded when

questioning occurs at the place of detention. Two states have taken this approach. State v.

Scales, 518 N.W.2d 587, 592 (Minn. 1994) (“[I]n the exercise of our supervisory power to insure

the fair administration of justice, we hold that all custodial interrogation . . . shall be

electronically recorded where feasible and must be recorded when questioning occurs at a place

of detention.”); In re Jerrell C.J., 699 N.W.2d 110, 113 (Wis. 2005) (“[W]e exercise our

supervisory power to require that all custodial interrogations of juveniles in future cases be

electronically recorded where feasible, and without exception when questioning occurs at a place

of detention.”).

These arguments are moot. Lewis’ statements were recorded. The problem is that they

cannot be retrieved.

IV.

THE DISTRICT COURT ERRED IN SUPPRESSING EVIDENCE

OF LEWIS’ STATEMENTS

The prosecution disclosed the fact that Lewis’ statements to the officer had been

recorded, but the prosecution was unable to retrieve the recordings. Cf. I.C.R. 16(b)(1)

(requiring prosecution to disclose and permit inspection of any relevant written or recorded

statement by the defendant in the possession, custody or control of the state).

The due process clause of the Fourteenth Amendment requires that criminal prosecutions

comport with prevailing notions of fundamental fairness. Fundamental fairness requires a

meaningful opportunity to present a complete defense, which in turn requires “what might

loosely be called the area of constitutionally guaranteed access to evidence.” California v.

Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984) (quoting United States v.

Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3447 (1982)). Under this doctrine the
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state has a duty to disclose to the defendant all material exculpatory evidence known to the state

or in its possession. Brady v. Maryland, 373 U.S. 83, 86-88, 83 S.Ct. 1194, 1196-97 (1963);

Grube v. State, 134 Idaho 24, 27, 995 P.2d 794, 797 (2000); cf. United States v. Agurs, 427 U.S.

97, 111-12, 96 S.Ct. 2392, 2401 (1976). Implicit in this duty to disclose exculpatory evidence is

a duty to preserve such evidence for use by the defense. See State v. Fain, 116 Idaho 82, 92, 774

P.2d 252, 262 (1989) (citing People v. Hitch, 527 P.2d 361 (Cal. 1974)).

Destruction of evidence is not a per se violation of a defendant’s rights and depends upon

the nature of the proceeding, nature of the evidence, and the circumstances surrounding the

destruction of the evidence. Garcia v. State Tax Comm’n of the State of Idaho, 136 Idaho 610,

615, 38 P.3d 1266, 1271 (2002). In a criminal context, this Court has applied a balancing test

which examines: “(1) whether the evidence was material to the question of guilt or the degree of

punishment; (2) whether the defendant was prejudiced by the loss or destruction of the evidence;

and (3) whether the government was acting in good faith when it destroyed or lost the evidence.”

Id. (quoting State v. Porter, 130 Idaho 772, 781, 948 P.2d 127, 136 (1997)). This same standard

has been applied in the civil context. Id. Where the value of the evidence is known, the person

asserting the due process violation has the affirmative burden of establishing the materiality and

prejudice elements of the balancing test. Id. Where the value of the evidence is unknown, the

materiality and prejudice elements are presumed and the inquiry focuses on the presence of bad

faith. Id.

Lewis presented no evidence regarding the nature of the recording, but he asserted in his

motion that he “denies having made the confession indicated in the officer’s report.” The district

court reasoned that the confession was central to the prosecution’s case, i.e., that the remaining

inculpatory evidence was so limited in quantity and quality that the confession was vital to

obtaining a conviction, and the recordings therefore became extremely important to Lewis. The

police officer testified that the recording contained inculpatory evidence. Lewis asserts by

motion that the statements were not inculpatory. Lewis failed to prove exculpatory value, but

that is not preclusive of his claim if there was bad faith in the destruction of evidence.

Bad faith is more than mere negligence. Id. It refers to “a calculated effort to circumvent

the disclosure requirements” under Brady. Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533. 

The district court found that the officer acted in good faith, stating:
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Given the [police department] policy that required the preservation of recordings

such as the one at issue here, the loss of this recording, although in good faith,

cannot be in accord with the normal practice of the [police department].

Therefore, the loss of the recording cuts against Defendant’s right to due process

in this case.

The evidence is that the officer attempted to comply with department policy requiring the

preservation of recordings. There was no showing that the loss was attributable to the officer’s

misfeasance. A deviation from normal practice can indicate bad faith. Loss of the recording in

this case was unintentional. There is no indication that the officer was attempting to prevent

Lewis from having access to the recording. An inadvertent departure from normal practice,

without more, does not rise to the level of bad faith. The district court’s statement that the loss

of the recording “although in good faith” was not “in accord with the normal practice of the

police department” and therefore “cuts against” due process does not constitute the finding of

bad faith required to substantiate a due process violation.

Lewis argues that the district court should be upheld on the theory that the police

department itself was guilty of bad faith in failing to maintain a system that would reliably

preserve potential evidence. In reaching its decision that the loss of the recording “cuts against”

due process, the district court relied in part on the officer’s statement that it was not uncommon

for recordings to be inexplicably lost. The practice of recording interrogations is likely to be at

least as helpful to the police as it is to defendants. See State v. Bennett, 142 Idaho 166, 170, 125

P.3d 522, 526 (2005) (noting that the prosecution and the defense each suffer the same disability

when potential evidence of unknown exculpatory value is not available for testing). Without

some indication that the government has acted suspiciously with respect to a particular item or

category of potential evidence, there is no basis for finding a due process violation. There is no

such indication in this case.

V.

CONCLUSION

The district court’s decision to suppress evidence of Lewis’ alleged confession is

reversed.

Justices TROUT, EISMANN, BURDICK and JONES CONCUR.