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34 S.D. L. Rev. 407 (1989)
Arizona v. Youngblood: Adherence to a Bad Faith Threshold Test before Recognizing a Deprivation of Due Process

handle is hein.journals/sdlr34 and id is 435 raw text is: ARIZONA v. YOUNGBLOOD: ADHERENCE TO A BAD FAITH THRESHOLD TEST BEFORE RECOGNIZING A DEPRIVATION OF DUE PROCESS Refusing to speculate on the materiality of potentially exculpatory evidence, the United States Supreme Court has boldly paved a pre-existing path in Arizona v. Youngblood. The Court held that unless a criminal defendant can show bad faith action by police, failure to preserve poten- tially useful evidence does not constitute a denial of due process of law. This casenote examines the history of granting a defendant access to evi- dence, analyzes the application of that history to Youngblood, and sug- gests benefits derived by society from such a ruling. INTRODUCTION Wedged between the pure adversarial model' and society's sense of fair play and decency, access to prosecutorial evidence affords the criminal de- fendant an opportunity to avoid fundamental unfairness at trial, prepare a proper defense, and possibly exonerate himself. A prosecutor, under due pro- cess requirements, must disclose material evidence which is favorable to the accused.' However, a more delicate dilemma arises when that evidence is lost or destroyed prior to a determination of its materiality. In the latter situation, speculation on the exculpatory nature of the destroyed evidence abounds, and the court is left to define the import of materials whose contents are un- known and, very often, disputed.3 In Arizona v. Youngblood,4 an opportunity arose for the United States Supreme Court to consider once more what might loosely be called the area 1. Adversary system: The jurisprudential network of laws, rules, and procedures characterized by opposing parties who contend against each other for a result favorable to themselves. BLACK'S LAW DICTIONARY 49 (5th ed. 1979). The Supreme Court has recognized, though, that a prosecu- tor's role transcends that of an adversary: he is the representative not of an ordinary party to a controversy, but of a sovereignty.. .whose interest.. .in a criminal prosecution is not that it shall win a case, but that justice shall be done. Berger v. United States, 295 U.S. 78, 88 (1935). See Brady v. Maryland, 373 U.S. 83, 87-88 (1963). 2. See United States v. Bagley, 473 U.S. 667 (1985); California v. Trombetta, 467 U.S. 479 (1984); Weatherford v. Bursey, 429 U.S. 545 (1977); United States v. Agurs, 427 U.S. 97 (1976); Imbler v. Pachtman, 424 U.S. 409 (1976); Wardius v. Oregon, 412 U.S. 470 (1973); Moore v. Illinois, 408 U.S. 786, reh. den., 409 U.S. 897 (1972); Giglio v. United States, 405 U.S. 150 (1972); Giles v. Maryland, 386 U.S. 66 (1967); Brady v. Maryland, 373 U.S. 83 (1963). See generally Cannon, Prose- cutor's Duty to Disclose, 52 MARQ. L. REV. 516 (1969); Ginsburg, Disclosure to the Defense in a Criminal Case, 57 ILL. B. J. 194 (1968); Note, The Duty of the Prosecutor to Disclose Exculpatory Evidence, 60 COLUM. L. REV. 858 (1960); Comment, Disclosure and Discovery in Criminal Cases: Where are We Headed?, 6 DUQ. L. REV. 41 (1967); Note, Criminal Law: The Prosecutor's Duty to Disclose Exculpatory Evidence, 19 OKLA. L. REV. 425 (1966); Note, Discovery and Disclosure: Dual Aspects of the Prosecutor's Role in Criminal Procedure, 34 GEO. WASH. L. REV. 92 (1965); Comment, Criminal Discovery Implications of the False Evidence and Suppression of Evidence Cases, 34 TENN. L. REV. 654 (1967); Note, The Prosecutor's Constitutional Duty to Reveal Evidence to the Defendant, 74 YALE L.J. 136 (1964). 3. California v. Trombetta, 467 U.S. 479, 486 (1984). 4. -U.S.-, 109 S. Ct. 333 (1988).

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