When is a Haircut Spoliation? – Recent Oral Argument in Court of Appeals

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I have been following with interest a case in the Maryland Court of Appeals on whether and when a potential criminal defendant cutting his hair may be viewed as spoliation.  See When is a Haircut Spoliation? Certiorari Granted and When is a Haircut Spoliation?

The Maryland Daily Record recently reported on oral argument. S. Lash,  MD high court considers: Can cutting dreadlocks be destruction of evidence? (thedailyrecord.com) (June 2, 2022).  Mr. Lash wrote about the argument, with a focal point being whether the issue was proper for a jury instruction or limited to argument of counsel:

“Mr. Rainey’s hair was not evidence,” [defense counsel] Rasin added. “When a witness describes someone to the police, every aspect of that person’s appearance does not, in that moment, become evidence. If any evidence is created by that scenario, it is the statement of identification itself.”

But Judge Jonathan Biran interjected that a killer fearful of having been seen by a witness, caught on someone’s cellphone camera or captured by video surveillance might feel compelled to change a physical attribute that would link him or her to the slaying.

“Does the fact that this crime occurred in broad daylight, in Baltimore City, can that support an inference that, whoever the killer was, they could reasonably be concerned that they could be apprehended by a witness or by video footage?” Biran asked.

Rasin responded that a prosecutor may permissibly argue at trial that the defendant changed his or her appearance. However, a judge goes too far by instructing the jury that the change could indicate evidence has been destroyed, an instruction that strongly implies the defendant is guilty of the crime charged, Rasin said.

“Of course, Mr. Rainey’s appearance is going to be important,” Rasin said.

“It is perfectly reasonable for the prosecutor to argue, ‘Yes, his hair looks different but it’s the same guy and I think he did that because he was trying to evade detection,’ ” Rasin added. “I think that’s a reasonable, fair way for the state to admit and argue this evidence to the jury. But there is no reason why the judge should put their thumb on the scale when it comes to something like a hair change, which is just as likely to be innocent as it is to be consciousness of guilt.”  [emphasis added].

According to the article, the Court of Appeals is expected to render its decision by Aug. 31 in the case, Robert Rainey v. State of Maryland, No. 54, September Term 2021.