United States v. Augenblick
In United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), the government had lost the tape of an interview with a key prosecution witness-the other participant in the indecent act for which defendant was court marshalled and discharged from the service.
During the course of the interview, the witness at first apparently denied anything had happened and then maintained an act of sodomy had occurred. Id., 393 U.S. 353, 89 S.Ct. 532.
The defense theorized that the witness had been induced to change his story during the interview upon a promise that he would receive an honorable discharge. Indeed, the witness was honorably discharged after the defendant was convicted, despite his admission to participation in sodomy. Although government officials testified to the routine followed in handling tapes and the efforts to locate them, the reason for the tapes' loss was never ascertained.
The court, noting that an "earnest effort" to locate the tapes had been made, id., 355, 89 S.Ct. 533, and that the record was "devoid of credible evidence that they were suppressed," id., 356, 89 S.Ct. 533, concluded defendant's due process right to a fair trial had not been denied by the tapes' nonproduction. While the defendant in Augenblick might have been aided had the tape enabled him to impeach the witness, it is clear from the evidence as recounted in the Court of Claims opinion, Augenblick v. United States, 377 F.2d 586 (Ct.Cl.1967), that the testimony of the arresting officers would have been sufficient alone to sustain the conviction, and hence the lost evidence was not crucial.
Thus, Augenblick indicates that the proper focus in a case of lost evidence as opposed to suppressed evidence is not solely on the potential prejudice to the defendant from the evidence's nonproduction as in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976), but also upon the government's culpability.