Criminal defense attorneys have experienced bond court at
one point or another. They fill out orders in anticipation of the
client’s case being called, and even try to get an idea of the
amount of bond that the prosecutor might be seeking. Most
commonly, they fill out an appearance (or an appointment
order, for those of us who are public defenders) and a speedy
trial demand. Of the other orders or requests that seldom get
made, chief amongst them is preservation of notice to retain
any evidence or materials generated as a result of investigating
and bringing the present charges. This ensures that the defense
has an opportunity to examine this material if they so choose.
The prosecutor generally relies on these tests and examinations
both as leverage in plea negotiations and to prove his or her
case at trial. Conversely, defense counsel may also examine any
evidence that the State possesses in order to mount a zealous
defense for their client. This article will explore what happens
when this order is granted and what to do if it is not followed,
as well as the best time to request it.
Without this order being in place, law enforcement is not
required to maintain the evidence for defense examination
after conducting its own testing. Law enforcement can choose
to destroy it if it is not otherwise needed, or even return
the material to its rightful owner if it happens to be stolen
proper ty. This effectively eliminates any chance the
defense might have had to obtain outside examination. This is
especially true in cases involving controlled substances
where any material seized as the result of an arrest should be
examined in order to determine if it is prohibited by law. In
DuPage County, we have our own crime lab to test substances,
but other counties rely on the Illinois State police to conduct
any requisite forensic testing. If this order is given, the relevant
crime lab must maintain the substance so that the defense may
examine it as well. After all, the word of a state forensic expert
is not infallible. It is occasionally defense counsel’s job to
scrutinize their methods and challenge their findings in order
to present the best possible defense for our clients.
The United States Supreme Court ruled on the failure to
preserve evidence in 1988 with its decision in Arizona v.
Youngblood, 488 U.S. 51 (1988). The Court set forth that the
defendant must show bad faith if he or she is to prevail in a
due process claim when the police do not preserve potentially
useful evidence. Illinois would go on to parse that language in Youngblood when our own supreme court decided People v.
Newberry.1 The defendant had been charged with possession
of a controlled substance. Upon defense counsel requesting
to examine the physical evidence, the State tendered a notice
from the police department advising that the actual substance
had been accidentally destroyed. The court would go on to
disregard the lack of bad faith and dismissed the case. In
reconciling its ruling with Youngblood, the court determined
that the substance was more than merely “potentially useful.”
The substance here was absolutely necessary to proving guilt
or innocence. Without it, the defense had no other comparable
way of contesting the evidence that the substance was a
This was the law of the land in Illinois for several years, with
state courts relying on its authority in many other cases. The
Appellate Court, Second District affirmed a dismissal of
firearm charges where the police department inadvertently
destroyed the gun that was at issue. Ruling that the defendant
could not mount a legitimate defense without getting to
examine the gun, the trial court had dismissed the charges as
a due process violation.2
Newberry’s reign as the authority on the destruction of evidence
in Illinois would seemingly come to an end when the United
States Supreme Court issued its decision in Illinois v. Fisher.3 The
Fisher court reasoned that Newberry essentially misunderstood
and misapplied the Supreme Court’s previous ruling in Youngblood.
Furthermore, the Supreme Court goes on to say that“the applicability of the bad-faith requirement in Youngblood
depended not on the centrality of the contested evidence
to the prosecution’s case or the Defendant’s defense, but on
the distinction between “material exculpatory” evidence and“potentially useful” evidence.”4 This explicitly rejected Newberry’s
argument that the destroyed controlled substance was
absolutely essential to the defense’s case and thus the defendant
could have no hope for an exoneration without it. The
Court disagreed that the Newberry evidence was materially
exculpatory. They instead viewed it as only potentially useful.
As such, there needed to be some showing of bad faith for a due
process violation. Without that, due process would only have
been violated had the evidence been materially exculpatory.
What if the defendant had asked for and the court had granted
an order preserving the evidence before it had been destroyed?
Would that be enough for bad faith? Unfortunately, the
Supreme Court covered this as well, stating, “We have never
held or suggested that the existence of a pending discovery
request eliminates the necessity of showing bad faith on the
part of the police.”5 Even with that order, a defendant would
still need to show something more concrete in terms of bad
faith in order to succeed with a federal due process claim.
While the decision in Fisher all but crippled Newberry, it only
addressed the merits of a violation of due process under the
United States Constitution. The decision was completely silent
as to the due process provision under the Illinois Constitution.
Though the Illinois Supreme Court has declined to rule
(despite having the opportunity) on whether Newberry is still
good law for that purpose,6 several appellate courts around the
state have reasoned that they would adopt the standards set
forth in Fisher.7
Even though a due process argument under the United States
Constitution is made more difficult by requiring a showing
of bad faith, this does not exclude other remedies. Courts
certainly have the discretion to impose sanctions for discovery
violations, and even Newberry reminds us as much that the
court reserves this broad authority,8 which is codified under
Supreme Court Rule 415(g)(i)9 for violations under Rule 412.10
Furthermore, the defense does not even need to show the State
acted in bad faith in order for the court to levy a discovery
sanction.11 While dismissal of an entire case is a drastic remedy
reserved for only the most serious of violations, barring the
relevant testimony is a much more common sanction.
This was exactly the result in People v. Kladis.12 The defendant
was charged with misdemeanor driving under the influence
of alcohol. After the defense made a request on the State to
produce the video of the traffic stop from the squad camera,
the parties learned that the video had been inadvertently
destroyed per the police department’s policy. The defense
moved for sanctions, asking that any testimony regarding
the events that took place on the video be barred, with the
court granting their request. On appeal, the appellate court
determined that the sanction was not an abuse of discretion,
and that it did not matter that the destruction was inadvertent.
This case is important in that the court explicitly introduces
these types of discovery sanctions for misdemeanor cases.
Much of the case law involving the destruction of evidence
pertains to felony charges, which do follow different discovery
rules. Under Kladis however, those who practice in misdemeanor
courtrooms are not without remedies.
Most importantly, the request for preservation of evidence
boils down to the timeliness and content of the order. Given
that counsel should want to enter this order as soon as possible,
bond court is certainly the ideal time to make the request.
In addition to being the first court appearance that a defendant
makes, it is the closest date to the incident alleged. This
is important because there may be several time limitations
that have started running. With regards to theft-type crimes
(robbery, burglary, deceptive practices, etc.), 725 ILCS 5/115-9
allows for photographs of the stolen property to be entered into
evidence in place of the actual item, but it also provides for
the return of the property to its rightful owner under certain
circumstances. This return can be stayed if defense counsel
files a motion to preserve the evidence. Time is of the essence
though; items that were offered for sale in a retail establishment
can be returned fourteen days after the arrest of the defendant.
All other items (such as those obtained from private owners)
can be returned thirty days after the filing of an indictment,
information, or misdemeanor complaint. If counsel does not
ask for the preservation of the items within those time periods,
then the chance to examine them will be lost.
In People v. Mikolajewski,13 the defendant was charged with
stealing certain merchandise from a retail establishment.
Though the defendant did not ask for the items to be preserved,
the State still ran afoul of 725 ILCS 5/115-9 by failing to
provide written authorization to return the items to the store.
At trial, pictures of the items were admitted into evidence
despite not having price tags visible in order to prove the value
of the items. The State achieved this by introducing witness
testimony (to which the defendant vigorously objected). The
defendant was eventually found guilty of felony retail theft. The
admission of the photographs was upheld on appeal because
the court deemed the non-conformance to the statute harmless
error. There was ample evidence that otherwise showed
the defendant had committed the retail theft. The court did
however reduce the felony conviction to a misdemeanor due
to the fact that the trial court did not allow the defense to
enter a jury instruction on a lesser-included offense. This case
is instructive inasmuch as it shows a possible remedy for when
the State fails to comply with the proper procedures. Though
the violation was ruled harmless error due to the overwhelming
amount of other evidence, other situations with different
circumstances may yield better results.
When asking for the preservation of evidence, defense counsel
must be very detailed in wording the order. One must make
sure that the order covers every conceivable item that may
later be in question. To that end, the DuPage County Public
Defender’s office has a form order in bond court that encompasses all possible items that might need to be
preserved. The order reads as follows:
1. That the (with a blank space to indicate which specific
department) Police Department and all other Governmental
agencies involved in the investigation of the above matter, or
otherwise assisting therein, shall safely preserve all physical
evidence recovered; al l original notes, memoranda,
documents, reports, and tape recordings, generated in
connection with the above cause, shall be preserved as well.
The above shall be maintained in their original condition;
copies of documents, etc. and a list of physical evidence
recovered shall be delivered forthwith to the DuPage County
State’s Attorney’s Office to effectuate discovery rules;
2. The DuPage County State’s Attorney’s Office shall notify all
involved Governmental agencies of this order, within eight
(8) hours thereof.14
The order concludes with a space to not only enter the date of
the order, but the time of day as well. This assures that there
is a definitive record of exactly when the order was entered.
It is important to note the second paragraph of the order as
this is the only way the relevant agencies will be aware of what
they are now required to do. It also serves to put the State on
notice that they should be actively working to preserve any
information they may have. It may also be prudent to specifically
include language regarding electronic communications
such as text messages, emails, or even information posted on
social media websites like Facebook and Instagram. While a
clever attorney might be able to make an argument that this
content falls under the existing provisions in the order, it
certainly makes sense to be absolutely sure and specifically refer
to these electronically materials in the preservation request.
Asking for the preservation of evidence as early as possible
(ideally in bond court) is vital to establishing a good defense
for your client and to successfully proving a due process or
discovery violation. Without it, your client may find himself
without particular defenses that he might otherwise have if
only that material had been maintained.
1. People v. Newberry, 166 Ill. 2d 310, 652 N.E.2d 288 (1995).
2. People v. Crowder, 323 Ill. App. 3d 710, 753 N.E.2d 1165 (2d Dist. 2001)
3. Illinois v. Fisher, 540 U.S. 544 (2004).
4. Fisher at 549.
5. Fisher at 549.
6. People v. Sutherland, 223 Ill. 2d 187, 860 N.E.2d 178 (2006)
7. See People v. Stolberg, 2014 Il. App(2d) 130963, 18 N.E.3d 927; People v. Voltaire, 406 Ill.App.3d 179, 941
N.E.2d 270 (2d Dist. 2010); and People v. Kizer, 365 Ill.App. 3d 949, 851 N.E.2d 266 (4th Dist. 2006).
8. Newberry at 317-318.
9. Ill. S. Ct. R. 415.
10. Ill. S. Ct. R. 412.
11. People v. Koutsakis, 255 Ill. App. 3d 306, 627 N.E.2d 388 (3d Dist. 1993).
12. People v. Kladis, 403 Ill. App. 3d 99, 934 N.E.2d 58 (1st Dist. 2010).
Most importantly, the
request for preservation
of evidence boils down
to the timeliness and
content of the order “
13. People v. Mikolajewski, 272 Ill. App. 3d 311, 649 N.E.2d 499 (1st Dist. 1995).
14. “Order for Preservation of Evidence,” DuPage County Public Defender’s Office.
Christopher P. Holland has been an Assistant
Public Defender in DuPage County since
2008, and currently serves on the Leadership
Council for the DCBA Criminal Law Section.
He graduated from John Marshall Law School
in 2007, and earned his undergraduate degree
in political science and psychology from Illinois Wesleyan University in 2004.