Lost exculpatory evidence sometimes but not always can provide relief for a Virginia criminal defendant

Lost exculpatory evidence is a real risk in Virginia prosecutions. As a Fairfax criminal lawyer, I know that many if not all law enforcement agencies / police departments in the commonwealth have video retention and deletion policies and practices, starting with something as exasperating as not preserving all dashcam video footage, rather than saving the first minute or two of what was recorded starting from before the police officer activated their emergency lights or sirens. (The latter deletion practice makes all the less sense when considering that many law enforcement officers (LEOs) follow a motor vehicle for a substantial amount of time before effectuating a stop, for instance to reduce the chances of a judicial finding of a stop without federal Fourth Amendment reasonable suspicion (also known as reasonable suspicion (RAS)) to stop the car (by first waiting for the driver to commit multiple moving violations) and/or to present possibly egregious driving behavior to support a prosecutorial argument of a lawful arrest with probable cause to believe that the driver had violated the commonwealth’s DUI law, under Virginia Code § 18.2-266. 

Virginia criminal defendants should demand exculpatory evidence early, timely, specifically and to the right people

For reasons addressed in the below caselaw discussion, Virginia criminal defense lawyers should demand exculpatory evidence early, timely, specifically and to the right people. For instance, as a Fairfax criminal lawyer, I know that the county commonwealth’s attorney’s office will agree to provide the defense with video in the case at least ten days before the trial date upon provision to that office of a proposed discovery order at least twenty-five days before the trial or preliminary hearing date. Nonetheless, I routinely also send prosecutors and sometimes jointly to police, as well, a letter demanding exculpatory evidence, for instance under Brady v. Maryland, 373 U.S. 83 (1963). Any exculpatory evidence that gets lost, deleted or non-preserved even after the issuance of a discovery order or the delivery of a defendant’s Brady letter helps support an argument that the deletion or losing of such evidence was in bad faith.

Know the Virginia appellate hurdles for a criminal defendant to obtain relief for lost evidence

In 2008, the Virginia Court of Appeals presented the analysis as follows for seeking relief for missing police evidence: “In Trombetta, the seminal case involving the prosecution’s failure to preserve evidence, the United States Supreme Court held that ‘the government violates due process if the evidence possessed “exculpatory value that was apparent before the evidence was destroyed, and the evidence is of such a nature that the defendant would be unable to obtain comparable evidence by any other reasonable means.”’ Park v. Commonwealth, 32 Va.App. 407, 420, 528 S.E.2d 172, 178 (2000) (quoting Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534). In Youngblood, the Court added a third requirement, holding that if ‘a criminal defendant can[not] show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law’” 488 U.S. at 58, 109 S.Ct. at 337. Thus, a defendant seeking a new trial on the basis of missing evidence formerly in the Commonwealth’s possession must show that (1) the evidence possessed an apparent exculpatory value, (2) the defendant could not obtain comparable evidence from other sources, and (3) the Commonwealth, in failing to preserve the evidence, acted in bad faith. Furthermore, ‘[t]he presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.’ Id. at 56 n. *, 109 S.Ct. at 336 n. *.” Gagelonia v. Commonwealth of Virginia, 52 Va.App. 99, 115 (2008). Although unpublished, do not be surprised if your Virginia trial judge relies on Biro v. Commonwealth of Virginia, 2025 WL 1224293 (Va. App. 2025) to address not a motion for retrial for missing exculpatory evidence, but a motion to dismiss as a remedy. How does a Virginia criminal defendant show that missing evidence was exculpatory in the first place? Read on.

How does a Virginia criminal defendant show that lost evidence was exculpatory in the first place?

When during previous prosecutorial administration Fairfax County prosecutor would often not show criminal defense lawyers police reports, and would often give discovery on the first day of trial (granted, before dashcameras and body cameras were common for police encounters with suspects), I saw prosecutors’ non-provision of police reports in discovery to risk their violating their obligations under the Brady line of appellate court cases to disclose exculpatory evidence. For instance, even if a police officer stops a vehicle for allegedly weaving, the video is bound to include exculpatory evidence that narrows the amount of weaving, when a Virginia police weaving stop requires considering the totality of the alleged weaving circumstances (and where the less pronounced is the weaving, and the lighter the traffic, the better are the chances of successfully suppressing such a stop. A video showing errors or “clues” in field sobriety testing for Virginia DUI prosecutions is also bound to includes such exculpatory evidence as showing a defendant who is conscious, is not falling down, and, perhaps is being police. The instances are legion where a police officer or their report alleges slurring speech from the suspect, which we do not hear; stumbling by the suspect that we do not see; and nervousness or sweating that we do not observe in the incident video. Combine the likelihood of the missing discovery being exculpatory and showing bad faith by the prosecution and/or law enforcement by destroying or not preserving evidence even after the defense or a discovery order alerts Virginia assistant commonwealth attorneys to preserve relevant evidence and to preserve evidence that they are asked to reserve, and a Virginia criminal defendant is closer to receiving beneficial judicial relief for missing or deleted prosecution or law enforcement evidence. Pursuant to Brady, Constitutional due process, and fair play, prosecutors are well advisd to over-disclose discovery and evidence than to do the opposite, and to endeavor to avoid having lost relevant evidence.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. A great start to your defense is meeting with Jon Katz for your free in-person initial consultation with Jon about your court-pending prosecution.