interview notes pursuant to Las Vegas Metropolitan Police Department 

protocol. 

Consequently, Banks filed a motion with the district court to 

dismiss the charges based on the State's failure to preserve evidence, or in 

the alternative, requesting an evidentiary hearing to question Detective 

Merrick about the destroyed evidence. The district court granted Banks 

an evidentiary hearing. After the evidentiary hearing, and despite 

Detective Merrick's testimony that the destroyed notes stemmed from 

interviews of inconsequential witnesses and contained immaterial 

information, the district court granted Banks' motion to dismiss. The 

district court found that (1) the State acted in bad faith in failing to 

preserve the notes, and (2) Banks was prejudiced by the destruction of the 

notes. 

The State now appeals, arguing that: (1) the district court 

abused its discretion in finding that the State acted in bad faith, and (2) 

the district court abused its discretion in finding that Banks was 

prejudiced by the State's failure to preserve the evidence. 

Standard of review 

This court reviews a district court's dismissal of a charging 

document for an abuse of discretion. Hill v. State, 124 Nev. 546, 550, 188 

P.3d 51, 54 (2008) (reviewing the dismissal of an indictment). 'An abuse 

of discretion occurs if the district court's decision is arbitrary or capricious 

or if it exceeds the bounds of law or reason." Nunnery v. State, 127 Nev. 

„ 263 P.3d 235, 247 (2011) (quoting Jackson v. State, 117 Nev. 116, 

120, 17 P.3d 998, 1000 (2001)). 

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The district court abused its discretion in granting Banks' motion to 

dismiss 

This court has consistently held that in order to establish a 

due process violation resulting from the State's destruction of evidence, a 

defendant has the burden of establishing that (1) the State destroyed the 

evidence in bad faith, or (2) the defendant was prejudiced by the 

destruction of evidence.' Sheriff, Clark Cnty v. Warner, 112 Nev. 1234, 

1239-40, 926 P.2d 775, 778 (1996). We conclude that the district court 

abused its discretion in finding both (1) bad faith and (2) prejudice. 

The district court abused its discretion in finding that the State acted 

in bad faith 

In finding bad faith on the part of the State, the district court 

applied the factors from United States v. Bohl, 25 F.3d 904, 909-10 (10th 

Cir. 1994). We conclude, however, that the district court erred by not 

applying established Nevada law in its bad faith analysis. 

Under Nevada law, this court evaluates bad faith on a case-bycase basis. See Warner, 112 Nev. at 1240, 926 P.2d at 778 (concluding that 

even though the defendant obtained a court order to preserve the 

evidence, there was no evidence that the police destroyed the evidence to 

make it unavailable to the defendant); State v. Hall, 105 Nev. 7, 9, 768 

P.2d 349, 350 (1989) (concluding that the State did not act in bad faith 

when a chemist disposed of laboratory samples for a legitimate purpose 

after saving it for a reasonable time); Howard v. State, 95 Nev. 580, 582, 

600 P.2d 214, 216 (1979) (concluding that although the State maintained 

'We conclude that the State's argument that defendants must show 

(1) bad faith and (2) prejudice is inconsistent with Nevada law and is 

therefore without merit. 

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control over property and failed to take measures to protect it from loss or 

theft, the State did not act in bad faith). 

Further, the State does not necessarily act in bad faith if it 

fails to preserve evidence, even if it received notice from the justice court 

of the defendant's request to preserve that evidence. Mortensen v. State, 

115 Nev. 273, 284, 986 P.2d 1105, 1112 (1999). In Mortensen, the police 

examined a witness' truck for evidence. Id. at 277, 986 P.2d at 1108. At a 

bail hearing, the justice court requested that certain evidence, including 

the truck and the witness' clothing, be preserved. Id. The police returned 

the truck to the witness, however, because he was not a suspect in the 

investigation. Id. at 283, 986 P.2d at 1112. Further, the police did not 

obtain the clothing that the witness wore at the time of the incident. Id. 

The defendant eventually received the truck and clothing to examine, but 

the truck had been altered and the clothing had been washed. Id. at 277, 

986 P.2d at 1108. This court concluded that the state did not act in bad 

faith for failing to preserve these items because the police did not know of 

the apparent exculpatory nature of the evidence at the time of the 

investigation. Id. at 283, 986 P.2d at 1112. 

We conclude from our review of the record that there is simply 

no meaningful evidence to demonstrate that the destruction of the notes 

resulted from any bad faith on the part of the State. Even though the 

justice court gave the State a blanket request to preserve all material 

evidence, "there is no indication that the police destroyed this evidence in 

an attempt to make it unavailable to [Banks]." Warner, 112 Nev. at 1240, 

926 P.2d at 778. Detective Merrick testified about the insignificance of the 

'unrecorded interviews, and we are unpersuaded that apparent 

discrepancies in the police report prove that the State acted in bad faith. 

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ccordingly, we conclude that the district court abused its discretion in 

finding bad faith. 

The district court abused its discretion in finding prejudice 

This court has held that a defendant's demonstration of 

prejudice "requires some showing that it could be reasonably anticipated 

that the evidence sought would be exculpatory and material to [his] 

defense." Warner, 112 Nev. at 1240, 926 P.2d at 778 (quoting Boggs v. 

State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979)). It is not sufficient that 

a defendant's showing demonstrate merely a hoped-for conclusion, "nor is 

it sufficient for the defendant to show only that examination of the 

evidence would be helpful in preparing his defense." Id. (quoting Boggs, 

95 Nev. at 911, 604 P.2d at 108); Mortensen, 115 Nev. at 285-86, 986 P.2d 

at 1113 (noting that the defendant's contention alone that exculpatory 

information existed in the destroyed evidence was not sufficient to show 

prejudice). Further, when a defendant can show only that the lost 

evidence would have aided in the impeachment of a witness but would not 

have established the defendant's innocence, then the defendant has failed 

to show the exculpatory nature of the evidence, regardless of whether the 

evidence may have been helpful to his defense. Orfield v. State, 105 Nev. 

107, 110, 771 P.2d 148, 150 (1989). 

We conclude that Banks was not prejudiced by the destruction 

of the handwritten interview notes because he cannot establish that the 

notes were 'exculpatory and material to [his] defense." Warner, 112 Nev. 

at 1240, 926 P.2d at 778 (quoting Boggs, 95 Nev. at 911, 604 P.2d at 108). 

Specifically, we are not persuaded that the interview notes would have 

een material to Banks' defense given the other independent evidence 

establishing his guilt. The most compelling of this independent evidence 

is Banks' own confession to the crime, along with testimony from various 

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Gibbons 

C.J. 

J. 

ThPa rir rre 

Cherry 

testimony from various other witnesses implicating Banks in the murder. 

Instead, the record suggests that the only real value the notes would have 

provided would be in aiding Banks in impeaching the witnesses. See 

Orfield, 105 Nev. at 110, 771 P.2d at 150. Accordingly, because Banks 

cannot establish that the handwritten notes would have been material to 

his defense, we conclude that the district court abused its discretion in 

finding that Banks' was prejudiced. 

Conclusion 

Because Banks cannot establish either (1) bad faith on the 

part of the State, or (2) that he was prejudiced by the destruction of the 

handwritten notes, we conclude that the district court abused its 

discretion in granting Banks' motion to dismiss. 2Accordingly, we 

ORDER the judgment of the district court REVERSED AND 

REMAND this matter to the district court for proceedings consistent with 

this order. 

442\J. 

Hardesty 

Saitta 

2We have considered the parties' remaining arguments and conclude 

they are without merit. 

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cc: Hon. Jessie Elizabeth Walsh, District Judge 

Attorney General/Carson City 

Clark County District Attorney 

Clark County Public Defender 

Eighth District Court Clerk 

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