Maybe Texas should adopt the so-called Stevens exception to the requirement that bad faith be shown before loss of "potentially useful" evidence (as opposed to evidence whose exculpatory value is readily apparent) makes a difference. I am sure the government needs a true incentive to adopt standard operating procedures that ensure the proper collection and preservation of evidence. But, I have to disagree that Pena, No. 10-03-109-CR (4/27/05) is a very good case to adopt the new rule. Just because a defendant has an absolute right to independently analyze alleged contraband does not mean there was any doubt about the nature of the seized substance in his case (especially in light of the fact that pictures of it were available). I can only add that certainly West Virginia and Delaware case law should not normally be the guiding factor as to the meaning of the Texas Constitution. Better not lose any videotapes of a traffic stop from here on out!

The good news is that even the 10th court does not think the loss of just any evidence should be considered exculpatory in nature. Of course, now we have no idea what "potentially useful" means. Gibson

How about an instruction that informs the jury, in Pena, that the defendant waited nearly 3 years before suddenly realizing he wanted to test the substance to see if it really was marihuana? Up until the discovery that the MJ had been destroyed, the defendant and his attorney were willing to accept the lab's report. Shouldn't the jury have that information to weigh the credibility of the accusation? In a speedy trial motion, the defendant is required to demand the speedy trial, and the time that passes before the demand doesn't count against the state. So, how about placing some of the burden on the defendant to be diligent in requesting independent testing?

I don't have any problem holding the state accountable for the loss of valuable evidence, but let's at least be realistic about the value of that evidence. A mere request for independent testing doesn't prove that the evidence was in any way potentially exculpatory. Shouldn't the defendant have to provide some sort of supporting evidence? At least a theory?

My two cents here, but the State is already accountable if it loses evidence. Who has the burden of proof? Us. What is that burden? Beyond a reasonable doubt. Most cases where key evidence is lost never make it to trial, many are probably dismissed outright. The allocation of the burden and the standard of proof adequately protect defendants. We need no other protections than those in the statutes and Youngblood.

Defense lawyers argue all the time in DWI trials that the State could preserve the evidence from the Intoxilyzer for about $2 per case. I don't know that this is true, but how would the Pena decision affect the DWI case where Defendant does no SFST's, or does very well on them, but blows over the limit?

Sometimes bad facts make bad law.