When a command or government agent destroys evidence before a trial, especially evidence that is potentially exculpatory or helpful to the defense, it is a serious due process violation known as “spoliation.” A military defense attorney has several powerful remedies available, which they will request from the military judge in a formal motion. The specific remedy depends on whether the destruction was done negligently or in bad faith.
If the destruction was negligent (e.g., an evidence custodian accidentally lost a key document), the judge will try to fashion a remedy that cures the prejudice to the defense. This could include granting the defense a continuance to try and reconstruct the evidence, or giving a “favorable inference” instruction to the panel, telling them they can assume the missing evidence would have been favorable to the accused.
If the attorney can prove that the command or investigators destroyed the evidence in “bad faith”—that is, they deliberately destroyed it to prevent the defense from using it—the judge has much more drastic remedies. In addition to giving a favorable inference instruction, the judge can suppress other related government evidence. In the most egregious cases of bad faith destruction of critical exculpatory evidence, the judge has the ultimate authority to dismiss the charges with prejudice as a sanction for the government’s severe misconduct.