Zach Kurzhals, Associate Member, University of Cincinnati Law Review
Theoretically, criminal defendants are provided numerous advantages. However, the risk-reward calculation has been skewed over our country’s history, making plea deals pervasive. This has resulted in an increased number of erroneous convictions. States have responded to this crisis and all 50 states have passed post-conviction DNA statutes. However, many of these statutes have significant shortcomings. These laws often fail to include adequate safeguards ensuring the preservation of DNA evidence. Consequently, many prisoners petition for post-conviction DNA testing, have their petition granted, and are then informed that the evidence to be tested no longer exists. The technology for DNA testing has advanced considerably in the last 30 years and should re-shape the bad faith standard when applied to lost or destroyed DNA evidence. States must recognize the exculpatory value of DNA evidence and provide a lower bad faith requirement when DNA evidence is missing. Such recognition would ensure prosecutors and police agencies create policies that preserve DNA evidence, thereby helping assuage the epidemic of wrongful incarceration.
Current Standards Regarding Post-Conviction Evidence
Three Supreme Court cases constitutionally guarantee a criminal defendant’s access to evidence. A criminal defendant is entitled to all exculpatory or impeaching information that is material to the guilt, innocence, or punishment of the defendant. However, there is no federal post-conviction right to discovery. In contrast, state post-conviction DNA statutes are specifically intended to provide a statutory entitlement to access of DNA testing. A majority of state statutes require DNA evidence be preserved. However, many statutes mandating preservation of DNA evidence do not provide adequate safeguards for the preservation of DNA evidence. This has resulted in a substantial destruction or loss of DNA evidence. Additionally, it is unlikely to find an instance of state entities or agents facing repercussions for loss or destruction of DNA evidence in post-conviction proceedings. The only clear avenue of recourse for the prisoner is to claim a Due Process Clause (“DPC”) violation. A DPC violation claim based on spoliation of evidence operates under a different standard than that of Brady material. This is known as the “bad faith” standard and it is extremely favorable to the state.
The “Bad Faith” Standard
In Arizona v. Youngblood, the Supreme Court determined that the state does not have a duty to preserve potential exculpatory evidence. Instead, the State’s duty to preserve evidence is limited to evidence that has apparent exculpatory value, and has no reasonably available alternative, and is expected to play a significant role in the suspect’s defense. Additionally, the Court found a lack of intent, on behalf of the State, to support finding no DPC violation. The Supreme Court explicitly stated that a finding of “bad faith” on the part of the State is required to find a DPC violation resulting from missing or destroyed evidence. The Youngblood opinion distinguished situations involving Brady material and destroyed evidence as a difference between known exculpatory evidence and potential exculpatory evidence. The Court stated that a bad faith standard would limit the burden placed on the State in preserving evidence by excluding evidence about which “no more can be said than it could have been subject to tests.”
Antiquated Bad Faith and DNA
Every state has a post-conviction right to DNA testing. Many of these statutes require the preservation of DNA evidence. However, far too often a prisoner attempts to avail themselves of this new statutory right only to find the evidence that could prove their innocence missing. Occasionally, acts of God or some tragedy may be the cause. What is perturbing is there is often an appalling absence of accountability regarding missing DNA evidence. Often, the only available alternative for the prisoner is a DPC claim governed by the bad faith standard.
The bad faith standard is a substantial burden upon the convicted and is inappropriate for DNA evidence. Anything short of a government official admitting to malicious destruction of evidence is likely to fail. Overall, the bad faith standard is essentially insurmountable and is applied inconsistently across states. Some state courts have begun to deviate from the standard for specific types of evidence. The importance of DNA evidence is difficult to refute. DNA evidence has advanced considerably since its inception. Improvements in testing DNA evidence should not be denigrated by the judiciary under an unattainable bad faith standard. DNA evidence has a unique and extremely rare quality when compared to other types of evidence: it can provide near certainty of guilt or innocence. Therefore, if a movement away from bad faith and its high burden on defendants can be justified in some areas of evidence, certainly DNA should not be the exception.
The burden on the government to preserve DNA evidence is not so strenuous that it requires the protection of the “bad faith” standard. In cases where DNA evidence can be utilized by the prosecution, the State recognizes the inherent value of this evidence and thus insures its preservation. Current preservation of DNA evidence, for post-conviction relief, is at best substandard. As technology advances, even poorly-stored DNA evidence is able to yield reliable results. Storing DNA evidence is not a great burden on government, a single hair or a microscopic slide does not require much space. The governmental burden appears minimal when considering the value of affording the innocent the opportunity to redress manifest injustices.
Youngblood was decided long before DNA evidence was fully understood and used by law enforcement. The State’s response to a DPC claim for lost DNA evidence since Youngblood has been almost universally that the loss of evidence was a result of neglect or mistake. This response has practically guaranteed a finding of no DPC violation. Almost thirty years after Youngblood, DNA testing is by far the most superior investigation tool available. 
Today, DNA testing can identify or exclude individuals with almost 100% certainty and is used pervasively within law enforcement communities. It cannot be argued that police officers and prosecutors do not have an intimate understanding of DNA’s inherent exculpatory value. Therefore, considering statutes regarding DNA preservation, a police agency or a prosecutor should no longer be able to plead mere neglect, inattentiveness, or mistake regarding lost or destroyed DNA evidence.
The exculpatory value of DNA evidence is not disputed. The justice system should re-evaluate the standard applied to DNA evidence and account for our society’s augmented understanding, awareness, and use of DNA evidence. Currently, the standard requires a prisoner to prove the exculpatory value of evidence that they can no longer test. It would be extremely difficult for any individual to prove the exculpatory nature of non-existent evidence. To think an incarcerated individual would have the resources to meet such a standard is outlandish. Unsurprisingly, DNA testing has been central to the innocence movement taking place in the United States. A total of 351 DNA exonerations have taken place within the United States. The DNA testing from those 351 exonerations led to the proper identification of 150 perpetrators. Of those 351 exonerations, thirty-eight had pled guilty and the DNA evidence was not tested until the innocent person in prison petitioned for DNA testing. It can be posited that the innocence movement has proven the element of exculpatory value for all DNA evidence.
The illusion of the bad faith standard has begun to deteriorate as more states choose to deviate from it. Justice Blackmun, in his dissent in Youngblood, expressed his concern that this test would be almost impossible to overcome. The knowledge and hindsight of the last thirty years have confirmed Justice Blackmun’s apprehensions. Continued vulnerability of DNA evidence is discordant with the traditional and historical notions of fairness underpinning the criminal justice system. DNA testing is not perfect. There is a modern effort for greater understanding of the subjective nature of interpreting DNA. However, this can only lead to one logical outcome: even more accurate DNA assessments. As Justice Blackmun stated, “[t]he importance of [this] type of evidence is indisputable, and requiring police to recognize [its] importance is not unreasonable.” With each year that passes and with each new technological innovation, both the importance of DNA and the need to preserve DNA evidence become more pronounced.
 U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VIII; U.S. Const. amend. XIV.
 Patricia Lee Refo, Opening Statement: The Vanishing Trial, 30 No. 2, Winter 2004 ABA Journal of Litigation; Jed S. Rakoff, Why Innocent People Plead Guilty, New York Review of Books, Nov. 20, 2014.
 Less than 3% of cases go to trial. Patricia Lee Refo, Opening Statement: The Vanishing Trial, 30 No. 2, Winter 2004 ABA Journal of Litigation. There was an average of three exonerations a week in America in 2016. Nat’l Registry of Exonerations, Exonerations in 2016 (March 7, 2017). A conservative estimate of erroneous convictions of one percent yields approximately 20,000 innocent persons in prison. INNOCENCE PRJOECT, http://innocenceproject.org (last visited Oct. 27, 2017).
 Id. (listing five shortcomings such as not allowing those that plead guilty access to DNA testing).
 Id. (“Many laws fail to include adequate safeguards for preservation of DNA evidence.”).
 INNOCENCE PROJECT, http://innocenceproject.org (last visited Oct. 27, 2017). Additionally, The Ohio Innocence Project deals with this fairly often. Kyle Swenson, A Tiny Piece of Evidence Could Be the Key to Setting An Innocent Cleveland Man Free, Why Can’t Anyone at the Justice Center Find It?, Cleveland Scene, June 14, 2017.
 John M Butler, The Future of Forensic DNA Analysis, 370 Phil.Transactions Royal Soc’y Biological Sci. (2015, Aug. 5), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4580997/pdf/rstb20140252.pdf
 The duty placed on police agencies is limited to evidence expected to play a significant role in the suspect’s defense. California v. Trombetta, 467 U.S. 479 (1984). The convicted must prove the exculpatory nature of destroyed or lost evidence for a finding of a due process violation. Arizona v. Youngblood, 488 U.S. 51 (1988).
 Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976) holding modified by United States v. Bagley, 473 U.S. 667 (1985); United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).
 Brady, 373 U.S. 83 (This case led to the coining of the phrase “Brady material.”).
 28 U.S.C. § 2254 Rule 6(a) (West 2010); Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner . . . is not entitled to discovery as a matter of ordinary course.”).
 The following is not a complete list and could include at least 25 more states: Alaska; Arizona; Arkansas; California; Colorado; Connecticut; Florida; Georgia; Hawaii.
 Id. (stating that 29% of their cases between 2004 and 2015 were closed because of lost or destroyed evidence).
 Arizona v. Youngblood, 488 U.S. 51 (1988) (Larry Youngblood, convicted of child molestation, challenged his conviction based on the state’s failure to preserve evidence containing DNA. The Supreme Court ruled that Youngblood had to prove the DNA was exculpatory, and the police knew this before destroying or ruining the evidence. The court found Youngblood did not meet this burden. Larry Youngblood was ultimately exonerated 12 years later through advanced DNA testing.).
 See Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992) (stating petitioner must prove official animus or a conscious effort to suppress exculpatory evidence); See also United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (finding gross negligence insufficient for due process violation).
 California v. Trombetta, 467 U.S. 479 (1984)
 Id. at 488.
 Id. (“[A]uthorities in this case did not destroy respondents’ breath samples in a calculated effort to circumvent the disclosure requirements . . . the officers here were acting ‘in good faith and in accord with their normal practice.’”).
 Youngblood, 488 U.S. 51 (1988).
 E.g., OHIO REV. CODE ANN. § 2933.82 (West 2010).
Anthony Johnson, a client of The Ohio Innocence Project (“OIP”), was granted the right to have DNA evidence tested. At the evidentiary hearing a police witness made clear that the evidence should be in their evidence room but no one could find it. Kyle Swenson, A Tiny Piece of Evidence Could Be the Key to Setting An Innocent Cleveland Man Free, Why Can’t Anyone at the Justice Center Find It?, Cleveland Scene, June 14, 2017.
 State v. Hawkinson, 829 N.W.2d 367 (Minn. 2013) (finding preservation request, before destruction of evidence, insufficient to show bad faith); but see City of Columbus v. Forest, 522 N.E.2d 52 (Ohio Ct. App. 1987) (finding destruction of evidence subsequent to a preservation request shifts the burden to the state).
Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992) (finding petitioner must prove official animus or a conscious effort to suppress exculpatory evidence); See also United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (finding gross negligence insufficient for due process violation).
 Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009); Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. Univ. L. Rev. 2008, 241, 247 (2008).
 State v. Morales, 657 A.2d 585, 594 (Conn. 1995); Commonwealth v. Henderson, 582 N.E.2d 496 (Mass. 1991); State v. Matafeo, 787 P.2d 671 (Haw. 1990).
 Jennifer M. Romeika & Fei Yan, Recent Advances in Forensic DNA Analysis, Journal of Forensic Research 2013, S12, available at https://www.omicsonline.org/recent-advances-in-forensic-dna-analysis-2157-7145.S12-001.pdf (last visited Oct. 28, 2017).
 Youngblood, 488 U.S. 51, 58 (1988) (stating part of the rationale for the bad faith standard is limiting the burden on police agencies in preserving evidence).
 Larry Youngblood, the defendant in Arizona v. Youngblood, was exonerated by DNA evidence 17 years after the crimes occurrence in 2000. Nat’l Registry of Exonerations, Larry Youngblood, available at https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3774 (last visited Oct/ 28, 2017).
 People v. Castro, 545 N.Y.S.2d 985 (Sup. Ct. 1989) (finding DNA evidence inadmissible because not proven reliable) overruled by People v. Wesley, 83 N.Y.2d 417, 633 N.E.2d 451 (N.Y. 1994); President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, at 25-26, September 2016.
 Elizabeth A. Bawden, Here Today, Gone Tomorrow—Three Common Mistakes Courts Make When Police Lose or Destroy Evidence with Apparent Exculpatory Value, 48 CLEV. ST. L. REV. 335, 350 (2000).
 John M Butler, The Future of Forensic DNA Analysis, 370 Phil.Transactions Royal Soc’y Biological Sci. (2015, Aug. 5), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4580997/pdf/rstb20140252.pdf; (2015) CODIS – NDIS Statistics, FBI.gov (2017), http://www.fbi.gov (last visited Oct. 27, 2017) (stating the National DNA Index (NDIS) contains over 13,041,408 offender profiles, 2,860,423 arrestee profiles, and 804,902 forensic profiles as of September 2017).
 INNOCENCE PROJECT, http://innocenceproject.org (last visited Oct. 27, 2017) (In more than 25% of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted.”).
 CODIS – NDIS Statistics, FBI.gov (2017), http://www.fbi.gov (last visited Oct 27, 2017) (stating CODIS has produced over 392,684 hits assisting in more than 377,507 investigations); INNOCENCE PROJECT, http://innocenceproject.org (last visited Oct. 27, 2017) (“Since 1989, there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused.”).
 Morales, 657 A.2d 585, 594; Henderson, 582 N.E.2d 496; Matafeo, 787 P.2d 671; State v. Battease, 2006-Ohio-6617 (Ohio Ct. App. 2006) (“[W]here the defendant moves to have the evidence preserved and the state destroys the evidence, the burden shifts to the state to demonstrate its inculpatory value.”); City of Columbus v. Forest, 522 N.E.2d 52 (Ohio Ct. App. 1987) (reading an additional requirement into Trombetta, one imposing a constitutional duty on the State to respond to defense requests for preservation of evidence).
 Youngblood, 488 U.S. 51, 69 (1988) (6-3) (Blackmun, J. dissenting).
 President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, at 75-82, September 2016.
 Youngblood, 488 U.S. 51, 70 (1988) (6-3) (Blackmun, J. dissenting).