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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33069
STATE OF IDAHO,                                                                                       )
                                                                                                      )   Boise, January 2007 Term
Plaintiff-Appellant,                                                                                  )
                                                                                                      )   2007 Opinion No. 54
v.                                                                                                    )
                                                                                                      )   Filed:  March 29, 2007
JON J. LEWIS,                                                                                         )
                                                                                                      )   Stephen W. Kenyon, Clerk
Defendant-Respondent.                                                                                 )
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




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,
1 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.
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