Negligent Loss of Video Supports “Missing Evidence” Instruction in Criminal Case

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A conviction for a sex offense was reversed in Mondragon v. State, 2023 WL 2806288 (Apls. Ct. Md. Apr. 6, 2023)(unreported), because the trial court erroneously denied a “missing evidence” instruction.  This blog addresses the holding that negligent loss of important evidence was sufficient to sustain a sanction.

The history of, and standard for, “missing evidence” instructions was discussed in Suspect’s Haircut = Destruction or Concealment of Evidence Leading to “Missing Evidence” Jury Instruction.

Mondragon was convicted of sexually assaulting a minor.  After reporting the crime, the minor was interviewed by a police detective.  The detective testified that he attempted to “tag” the recording for continued preservation.  The Court wrote that: “How long the recording remains in the system depends upon how the recording is categorized, which is a decision made by the officer conducting the interview applying standards promulgated by the Department. In the present case, and in light of the information provided to him in the interviews, Detective Conrad intended to designate the recordings for indefinite storage, but things went amiss.” [emphasis added].

When asked if he tagged the video, the detective explained: “I believe I did. At this point, it’s always a habit to tag them where I hit a touch screen for it and then I hit logout, but as we learned that day, the video showed up not tagged, which probably means that when I hit the touch screen, my finger probably didn’t light up the tag, and so, when I hit and then hit logout, I believed it was tagged, but as it was found out later, that it was not tagged.” [emphasis added].[1]

The untagged video – which contained the initial interview of the victim – was deleted.

The trial court held that the loss was through mere negligence and denied a “missing evidence” instruction.  It stated that the detective’s “description adequately explains why it is not here and I don’t think that a negative inference is appropriate under the case. You can certainly argue that, but I don’t think it’s worthy of a jury instruction.” [emphasis added].

Obviously, the recorded statement of the victim was held to be relevant.  The Court considered it “highly relevant.”

The State suggested “that a missing evidence instruction is inappropriate when the evidence in question is destroyed through mere negligence….” [emphasis added].  The Appellate Court squarely rejected that contention.

In Cost,[2] our Supreme Court explained that a missing evidence instruction would be appropriate “where the State intentionally or negligently destroyed—or merely failed to produce—relevant evidence.” 417 Md. at 370. We read this statement to mean that Cost’s holding extends to cases where the destruction of evidence was negligent. In this case, the trial court commented that “neglect is the way I can describe” the detective’s failure to preserve the recordings of the initial interview with L.

Therefore, the trial court erred and the appellate court reversed.

The holding that negligence was sufficient is important.  The Maryland Supreme Court has several times written that:

“[S]poliation” is often used in civil cases, where parties withhold or destroy evidence strategically. The term “spoliation,” moreover, is often associated with egregious or bad faith actions, and not for cases involving negligent destruction or loss. [emphasis added].[3]

In the civil context, Maryland courts are in disarray on the issue of whether negligence can support sanctions.  Some State decisions require intent while, in others, negligence is sufficient. See Does Maryland Require that Spoliation be “Intentional”? , Maryland’s Confusing Spoliation Doctrine, Maryland’s Spoliation Standard, and M. Berman and A. Shelton, “The Common Law Duty to Preserve ESI (Its Trigger, Scope, and Limit) in Maryland State Courts” in M. Berman, et al., eds., Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), Chap. 12.

In my view, “[f]airness suggests that there should be a remedy for a party that is prejudiced, regardless of the opponent’s intent.”  Id.  In a recent Maryland State Bar Association white paper, I argued that “some Maryland appellate opinions limit sanctions to intentional misconduct while others – properly, in my opinion – state that negligence may suffice.”  See It’s Time to Replace Maryland’s “Safe Harbor” Rule.  I suggested that Maryland adopt a rule similar to Fed.R.Civ.P. 37(e), which, in subsection (e)(1), authorizes limited, curative sanctions for negligent loss of relevant information that should have been preserved and that cannot be replaced by secondary evidence.  That suggestion was approved by a subcommittee of the Standing Committee on Rules and Practice.

The Mondragon decision suggests that negligence should be sufficient to support curative spoliation sanctions in a civil context, notwithstanding contrary dicta in Cost.


[1] The design of the system may be questioned.  For example, when closing a Microsoft document that was not saved, the system has a pop up message asking the user if the document should be saved.  If that double-check existed, it was not mentioned.  The absence of such an inexpensive safeguard is inexplicable.

[2] Cost v. State, 417 Md. 360 (2010).

[3] For a discussion of the prior cases mentioned above, see Suspect’s Haircut = Destruction or Concealment of Evidence Leading to “Missing Evidence” Jury Instruction.