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The Government’s Use of Lost Evidence
By Marcia G. Shein
Imagine an individual is accused of a horrific crime. The prosecution claims that it has a voluminous amount of evidence against the defendant. It parades experts before the jury to testify how this evidence links the defendant to the crime — and yet all of this evidence has been lost. Some of this lost evidence could possibly exonerate the accused. The defendant is not, however, given the opportunity to examine or test the volumes of evidence presented at trial that supposedly establish guilt beyond a reasonable doubt. Instead, the defendant is left to challenge this evidence through cross-examination and based on pictures of the real evidence. Surely this sort of scenario cannot satisfy the promise of due process of law contained in the U.S. Constitution. Yet astonishingly, according to some courts, it does.
An astounding example of the amount of loss and negligence some courts are willing to accept can be seen in Georgia v. Davis,1 where the state of Georgia prosecuted
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