In Commonwealth v. Williams (Pa. Super. Jan. 12, 2017), the Commonwealth appealed a trial court’s order precluding testimony describing the contents of lost surveillance footage of a pizza shop burglary. The footage in questions was originally viewed by the police and the store owner after a break-in, but accidentally destroyed when the owner attempted to make copies. The trial court agreed with the defendant that, because he never had the opportunity to view the surveillance video himself, allowing testimony regarding the video’s contents would result in an unfair trial because the video evidence could have been “materially exculpatory.”
On appeal, the Superior court explained the law with respect to a criminal defendant’s right to review evidence as follows:
the Due Process Clause of the Fourteenth Amendment requires defendants be provided access to certain kinds of evidence prior to trial, so they may “be afforded a meaningful opportunity to present a complete defense.” This guarantee of access to evidence requires the prosecution to turn over, if requested, any evidence which is exculpatory and material to guilt or punishment, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963), and to turn over exculpatory evidence which might raise a reasonable doubt about a defendant’s guilt, even if the defense fails to request it, see United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). If a defendant asserts a Brady or Agurs violation, he is not required to show bad faith.
There is another category of constitutionally guaranteed access to evidence, which involves evidence that is not materially exculpatory, but is potentially useful, that is destroyed by the state before the defense has an opportunity to examine it. When the state fails to preserve evidence that is “potentially useful,” there is no federal due process violation “unless a criminal defendant can show bad faith on the part of the police.” Potentially useful evidence is that 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.” In evaluating a claim that the Commonwealth’s failure to preserve evidence violated a criminal defendant’s federal due process rights, a court must first determine whether the missing evidence is materially exculpatory or potentially useful.
(citing Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (some citations omitted). Unlike the trial court, the Superior Court reasoned that the lost surveillance footage was only potentially useful for the defendant and not materially exculpatory.
Because the court held that the footage was only potentially useful, the defendant must prove that the Commonwealth acted in bad faith in failing to preserve it. Where there was no evidence that the Commonwealth acted in bad faith, the Superior Court reversed the suppression of testimony describing the contents of the destroyed surveillance footage.