Samek v. State

    We note that in Bivins v. State, 642 N.E.2d 928 (Ind. 1994) cert. denied, __U.S.___, 116 S. Ct. 783, 133 L. Ed. 2d 734 (1996) our supreme court found no due process violation where a tape recording of a defendant's preliminary advisements had been negligently destroyed or recorded over since the defendant failed to establish bad faith. In doing so, however, the court agreed that the tape would have provided "material evidence." We think that in doing so the court was using "material" in the traditional evidentiary sense rather than as a term of art as employed by the Court in Youngblood.See footnote 1 (The defendant had not contended that the tape was exculpatory, but merely that it would support his assertion that he felt under duress at the time he gave his statement, which by all accounts had not been recorded. Thus, the evidence which had been lost was clearly only potentially useful evidence.) To avoid any possible confusion in the future, we use the terms as the Court did in Youngblood. Thus, when the evidence at issue falls within the definition of material exculpatory evidence, the defendant need not establish bad faith in order to prove a due process violation. Bad faith is only relevant when the evidence merely meets the definition of potentially useful evidence. Youngblood, 488 U.S. at 57, 109 S. Ct. at 337.

Footnote:     1 While citing Youngblood the court did not discuss the distinctions between "potentially useful evidence" and "material exculpatory evidence" in its decision.