Eighth Circuit Continues to Reserve on Question Whether Spoliation Doctrine Applies in Criminal Cases — Indicates Bad Faith and Prejudice Would in All Events Be Required

United States v. Tyerman, 2012 U.S. App. LEXIS 25350 (8th Cir. Dec. 12, 2012):

This court has not applied the spoliation doctrine in a criminal case. United States v. Davis, 690 F.3d 912, 925 (8th Cir. 2012). Even if this court were to do so, a showing of the government's bad faith would be required. Id., citing Stepnes v. Ritschel, 663 F.3d 952, 965 (8th Cir. 2011). Tyerman argues that this court has left open the possibility of a spoliation instruction absent a showing of bad faith. But this court certainly rejected a spoliation instruction on the basis of mere negligence. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746-47 (8th Cir. 2004). Here, the district court found, correctly, that the ATF was only negligent in destroying the firearm. The district court's denial of Tyerman's proposed spoliation instruction was not an abuse of discretion.

Moreover, the party requesting a spoliation instruction must demonstrate prejudice. Espinoza, 684 F.3d at 783.