People v. Moore, 2016 IL App (1st) 133814 (February). Episode 149 (Duration 4:49)
Lost photo arrays were not done in bad faith, so no due process violation occurred.
This was a murder trial that took years to investigate.
The case went cold twice because witnesses refused to cooperate Defendant and a codefendant were accused of shooting a man who was lying in the street after being beat.
Then they shot another guy in the arm (they were aiming for his face). Several witness identified defendant from a photo array.
That photo array was lost by the time the case went to trial.
Should Evidence Be Suppressed?
Defendant argued that dismissal of the indictment was appropriate because he could not challenge the identification from the array.
The court said defendant was required to show that the State acted in bad faith in failing to preserve the photo arrays.
There is no evidence to suggest that the State acted in bad faith and defendant concedes this issue. Thus, no due process violation occurred in this case.
Instead the defense was given Civil JI 5.01. The the jury was told that it may infer that missing evidence that was within a party’s power to produce would have been adverse to that party.
Kladis does not stand for the proposition that testimony must be barred whenever there is a discovery violation that results in missing evidence.
Note: this is not technically a DUI case. But it’s related to many DUI situations.