                     This opinion is subject to revision before final
                          publication in the Pacific Reporter

                                     2017 UT 22


                                        IN THE

          SUPREME COURT OF THE STATE OF UTAH

                                  STATE OF UTAH,
                                     Appellee,
                                           v.
                          LISSETTE MARIAN DEJESUS,
                                  Appellant.

                                  No. 20150460
                               Filed April 21, 2017

                                On Direct Appeal


                        Third District, West Jordan
                      The Honorable Bruce C. Lubeck
                              No. 141400093

                                     Attorneys:
            Sean D. Reyes, Att’y Gen., Christopher D. Ballard,
               Asst. Solic. Gen., Salt Lake City, for appellee
        Joan C. Watt, Wesley J. Howard, Alexandra S. McCallum,
                      Salt Lake City, for appellant

 CHIEF JUSTICE DURRANT authored the opinion of the Court in which
           JUSTICE DURHAM and JUSTICE HIMONAS joined.
  ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion, in which
                      JUSTICE PEARCE joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                                   Introduction
   ¶ 1 This case, along with State v. Mohamud, 1 requires us to apply
the due process analysis we set forth in State v. Tiedemann,2 which

_____________________________________________________________
   1   2017 UT 23, --- P.3d ---.
                             STATE v. DEJESUS
                          Opinion of the Court
addresses the due process rights of criminal defendants when
evidence has been lost or destroyed. On April 23, 2015, defendant
Lissette DeJesus was sentenced to an indeterminate term of zero to
five years in prison for assaulting a prison guard. She argues on
appeal that a video recording of the assault was lost or destroyed by
the State and that this loss of evidence violated her due process
rights, requiring the dismissal of her case. She also argues that the
district court applied the wrong legal standard to her claim by
imposing a threshold requirement that she demonstrate a reasonable
probability the evidence would have been exculpatory.
    ¶ 2 We reaffirm today that the due process analysis set forth in
Tiedemann does encompass a threshold reasonable probability
requirement. Although the district court correctly recognized this
threshold requirement, it erred by imposing on Ms. DeJesus an
overly stringent interpretation of what constitutes a “reasonable
probability” and concluding that she had failed to satisfy the
threshold requirement. We also conclude that the court erred in its
application of the factors set forth in Tiedemann, and upon our
review of Ms. DeJesus’s circumstances, we conclude that the loss of
the surveillance footage was sufficiently significant to warrant the
dismissal of the State’s case against her. We therefore reverse the
district court’s decision.
                               Background
    ¶ 3 On September 27, 2013, Corrections Officer Ronald Hansen
was escorting inmates Samantha Dash and Fatima Kahn from their
scheduled recreation time back to their cells at the Utah State
Prison’s women’s facility. Ms. Dash shared cell 416 with
Ms. DeJesus. Ms. Kahn occupied cell 415, located adjacent to
Ms. DeJesus’s cell. When Ms. Dash and Ms. Kahn arrived at their
cells, Officer Hansen directed Ms. Kahn to stand in front of her cell
door. She disobeyed the officer’s order, however, stopping instead in
front of Ms. DeJesus’s cell door. Ms. DeJesus and Ms. Kahn began
arguing. Officer Hansen’s partner, who controlled the cell doors
from a remote location, opened both doors before Officer Hansen
was prepared. With Ms. DeJesus’s door unlocked, Ms. Dash said
“check this out” to Officer Hansen and pulled Ms. DeJesus’s cell
door open.
   ¶ 4 After Ms. Dash opened the door, Ms. DeJesus emerged from
her cell, “swung at [Ms.] Kahn,” and the two engaged in “mutual


   2   2007 UT 49, ¶ 44, 162 P.3d 1106.

                                    2
                         Cite as: 2017 UT 22
                         Opinion of the Court
combat.” Officer Hansen pulled Ms. DeJesus off of Ms. Kahn, picked
Ms. DeJesus up, and carried her back into her cell. But before he
could close the cell door, Ms. DeJesus moved past him and began
fighting with Ms. Kahn again. Officer Hansen quickly inserted
himself between the women, pushing Ms. DeJesus to the floor. While
on the floor, Ms. DeJesus kicked Officer Hansen twice—once in the
abdomen and once in the thigh.
    ¶ 5 About thirty minutes after resolving the altercation,
Officer Hansen reviewed surveillance footage that had captured the
event. He then filed a written report of the incident and gave a copy
of the report to his captain. His captain sent the report to the prison
investigations unit, and Debbie Kemp, an investigator, came to the
prison about an hour and a half after the incident. She asked if there
was surveillance footage of the altercation and was told someone in
the control room had viewed it. She asked to view the footage, but
the officer who was staffing the control room at the time was new
and apparently did not know how to replay the footage, preventing
Ms. Kemp from viewing the recording. After being shown where the
incident occurred and conducting interviews, she returned to the
control room and asked that a permanent copy of the footage be
made.
    ¶ 6 After requesting a copy, Ms. Kemp waited for at least 30
days to follow up. She testified that during this time, she was asked
to complete “10 . . . background check investigation[s] . . . [within]
three weeks.” This unusually heavy workload forced Ms. Kemp to
“put [many things] on the back burner.” When she eventually
followed up to see whether the prison had made a physical copy of
the surveillance footage, she learned that no copy had been made.
The captain informed her that “after 30 days, it goes off the camera.”
Accordingly, the footage of the incident was irretrievably lost.
    ¶ 7 On January 14, 2014, the State charged Ms. DeJesus with one
count of assault under Utah Code section 76-5-102.5, which provides
that “[a]ny prisoner who commits assault, intending to cause bodily
injury, is guilty of a felony of the third degree.” Thirteen days later,
on January 27, 2014, defense counsel entered his appearance and
filed a general discovery request.3 Two days later, defense counsel
filed a supplemental discovery request seeking a “copy of any video
of the alleged incident.” Approximately three months later, on

_____________________________________________________________
   3 The general discovery request sought all video recordings
prepared during the investigation or prosecution of the case.

                                   3
                          STATE v. DEJESUS
                        Opinion of the Court
May 2, 2014, the State responded that it was “unable to provide any
video of the incident as none exist[s] as per the Utah State Prison.”
    ¶ 8 On June 17, 2014, the district court held the preliminary
hearing. At that hearing, Officer Hansen testified about the alleged
assault. He claimed that after he threw Ms. DeJesus to the ground,
she “looked directly at [him] and then kicked [him]” “in [the]
lower . . . abdomen and . . . in [the] . . . right thigh.” On cross-
examination, Officer Hansen testified about the location of Ms. Kahn,
noting that she “was on my back, I don’t know exactly where she
was. . . . [S]he was no longer on my shoulder though, I could not see
her behind me, she was behind me.” Defense counsel emphasized
this point, asking, “So she could’ve been as close as inches away but
you couldn’t see her?” Officer Hansen responded: “But I could not
see her, no.”
   ¶ 9 Following the preliminary hearing, Ms. DeJesus moved to
dismiss the charge under State v. Tiedemann, claiming that the loss or
destruction of the surveillance footage constituted a due process
violation. She argued that if she kicked Officer Hansen, she did so
unintentionally, merely seeking to defend herself from Ms. Kahn.
During oral argument on the motion to dismiss, the district court
decided it needed additional evidence and scheduled the matter for
an evidentiary hearing.
    ¶ 10 At the evidentiary hearing, Ms. DeJesus called Ms. Dash to
testify about the event. The State asked the court to instruct Ms. Dash
about her right against self-incrimination, noting that “[s]he was
originally charged in this case,” which charge had been dismissed
without prejudice. The State informed the court and Ms. Dash that,
“based on her testimony today, we could refile that case.” In
response, Ms. Dash invoked her Fifth Amendment right against self-
incrimination and refused to testify.
    ¶ 11 Officer Hansen also testified at the evidentiary hearing. This
time, he said the surveillance footage showed that Ms. Kahn was
about four to six feet behind him when he pushed Ms. DeJesus to the
ground. On cross-examination, defense counsel pressed
Officer Hansen about the testimony he gave at the preliminary
hearing that Ms. Kahn “was on his back” and he did not see where
she was at the time of the assault. Officer Hansen clarified his prior
testimony, noting that at the time of the altercation he did not know
precisely where Ms. Kahn was standing. After viewing the
surveillance footage, however, he could see that Ms. Kahn was
standing four to six feet behind him.



                                  4
                           Cite as: 2017 UT 22
                          Opinion of the Court
    ¶ 12 Ms. DeJesus also called Ms. Ataata, who identified herself as
Ms. DeJesus’s fiancée, to testify. Ms. Ataata was incarcerated in an
adjacent cell—417—at the time of the altercation and viewed most of
the incident. She contradicted Officer Hansen’s testimony, claiming
that Officer Hansen, Ms. DeJesus, and Ms. Kahn “were all on the
ground.” She also testified that Ms. Kahn did not disengage from
Officer Hansen, but remained on his back the entire time, attempting
to “[s]wing” “over [Officer Hansen] to get to [Ms.] DeJesus.” The
district court, in its memorandum decision, noted that Ms. DeJesus
was “making facial gestures and expressions of varying sorts to
[Ms.] Ataata depending on what [Ms.] Ataata was saying in her
testimony.”
   ¶ 13 After the evidentiary hearing, the court determined that it
needed a supplemental evidentiary hearing to receive evidence from
Ms. Kemp, the investigator from the prison investigation unit. It was
then that Ms. Kemp testified that she attempted to view the
recording while at the control unit but could not and that the prison
had not preserved a physical copy of the footage. The district court
asked her whether “someone has to do anything to make [the
footage] disappear,” to which she responded that she did not know,
but that she “wouldn’t think so, no.”
    ¶ 14 The district court subsequently issued a memorandum
decision denying Ms. DeJesus’s motion to dismiss. Applying State v.
Tiedemann,4 the court noted that Ms. DeJesus had to show, “as a
threshold, whether . . . it is reasonably probable that the recording
would be exculpatory.” The court found that “[h]ere, defendant
produced a witness, her fiancé[e] [Ms. Ataata], who said [Ms.] Khan
was engaged in fighting with defendant when defendant struck
[Officer] Hansen.” But the court “[did] not accept as true the
testimony of [Ms.] Ataata” for three reasons: (1) the relationship
between Ms. Ataata and Ms. DeJesus, (2) Ms. DeJesus’s signals to
Ms. Ataata during her testimony, and (3) the fact that Ms. Ataata
viewed the events from an angle. Reasoning that because only
credible evidence can create a reasonable probability, and because
“the testimony [of Ms. Ataata] was not believable,” the district court
held that Ms. DeJesus had not satisfied the threshold requirement
under Tiedemann.




_____________________________________________________________
   4   2007 UT 49, 162 P.3d 1106.

                                    5
                            STATE v. DEJESUS
                         Opinion of the Court
    ¶ 15 Despite this conclusion, the court also considered the two
factors set out in State v. Tiedemann, 5 reasoning that “[if] the court is
wrong about the exculpatory nature of the recording, dismissal is
[still] not appropriate.” The court characterized the first Tiedemann
factor as concerned with “the reason for the destruction or loss or
failure of preservation of the evidence, including the degree of
negligence or culpability on the part of the State.” The court found
that “the reasons given for the lack of preservation are believable,
and amount to negligence but not in a high degree.” The court also
stated that “it is very difficult, if not impossible, for this court to
understand why prison personnel would not, with full knowledge
that a claimed assault had occurred by an inmate against a guard,
maintain a recording of that event.”
    ¶ 16 The court characterized the second Tiedemann factor as
concerned with “the [degree] of prejudice to the defendant in light of
the materiality and importance of the missing evidence in the context
of the case as a whole, including the strength of the remaining
evidence.” The court then reasoned that “[o]nly if the recording
shows in essence what defendant claims would there be prejudice by
its unavailability.” Because the court did “not believe defendant
[had] shown any reasonable, believable probability the recording
showed what defendant claims,” it concluded that “it does not
matter why or how [the footage] was destroyed, or more properly
not retained.” Ultimately, the district court held that Ms. DeJesus’s
due process rights were not violated by the destroyed surveillance
footage and denied the motion to dismiss.
    ¶ 17 Ms. DeJesus filed an interlocutory appeal with the court of
appeals to review the denial of her motion to dismiss. That court
denied the petition. Thereafter, she entered a conditional guilty plea
to one count of assault by a prisoner, a third degree felony, reserving
her right to appeal the denial of her motion to dismiss. The district
court, per the prosecution’s recommendation, sentenced Ms. DeJesus
to serve zero to five years in prison, to run concurrently with her
_____________________________________________________________
   5See id. ¶ 44 (“In cases where a defendant has shown a reasonable
probability that lost or destroyed evidence would be exculpatory, we
find it necessary to require consideration of the following: (1) the
reason for the destruction or loss of the evidence, including the
degree of negligence or culpability on the part of the State; and (2)
the degree of prejudice to the defendant in light of the materiality
and importance of the missing evidence in the context of the case as
a whole, including the strength of the remaining evidence.”).

                                    6
                            Cite as: 2017 UT 22
                           Opinion of the Court
other sentences. Ms. DeJesus timely appealed, and the court of
appeals certified the case to us. We have jurisdiction pursuant to
Utah Code section 78A-3-102(3)(b).
                           Standard of Review
   ¶ 18 Ms. DeJesus raises two overarching issues on appeal. First,
she argues that the district court incorrectly interpreted State v.
Tiedemann to require that a defendant demonstrate a reasonable
probability that the lost evidence would have been exculpatory. This
question, which requires us to examine the requirements of the due
process clause of the Utah Constitution, is a question of law that we
review for correctness. 6 Ms. DeJesus also argues that the district
court erred in its application of the Tiedemann due process analysis
and accordingly incorrectly denied her motion to dismiss. “Whether
the State’s destruction of potentially exculpatory evidence violates
due process is a question of law that we review for correctness,”
though we “incorporate a clearly erroneous standard for the
necessary subsidiary factual determinations.” 7
                                 Analysis
    ¶ 19 The first issue on appeal focuses on the precise requirements
of the due process test we announced in State v. Tiedemann. 8 The
second issue focuses on that test’s proper application in
Ms. DeJesus’s case. We begin our discussion by reviewing our
decision in Tiedemann. We reaffirm our earlier conclusion that the
due process clause of the Utah Constitution requires a defendant to
first establish as a threshold matter a reasonable probability that the
lost or destroyed evidence would have been exculpatory. By so
doing, the defendant establishes that his or her due process rights
have been violated. Once a defendant has made this threshold
showing, the court must consider the two factors set forth in
Tiedemann—the culpability of the State and the prejudice to the
defendant—in order to both evaluate the seriousness of the violation
and determine the necessary remedy.
   ¶ 20 After reviewing Tiedemann, we apply the due process
analysis established therein to Ms. DeJesus’s case. We conclude that
the district court erred by imposing a higher burden at the threshold
level than is required under Tiedemann, and that under the proper
_____________________________________________________________
   6   See State v. Tiedemann, 2007 UT 49, ¶ 12, 162 P.3d 1106.
   7   Id.
   8   2007 UT 49, 162 P.3d 1106.

                                     7
                            STATE v. DEJESUS
                          Opinion of the Court
standard, Ms. DeJesus met her burden. We also conclude that the
court erred in its application of the two Tiedemann factors and that
dismissal was an appropriate remedy for the loss of the surveillance
footage. Ultimately, we reverse the decision of the district court and
remand for an entry of dismissal.
I. The Due Process Clause of the Utah Constitution, as Interpreted in
   State v. Tiedemann, Requires a Threshold Showing that There Is a
 Reasonable Probability that the Lost or Destroyed Evidence Would
                        Have Been Exculpatory
    ¶ 21 Ms. DeJesus’s first argument on appeal focuses on the
correct interpretation of the due process analysis we articulated in
State v. Tiedemann.9 She argues that the district court erroneously
interpreted Tiedemann as establishing a threshold requirement that a
defendant show a reasonable probability that lost evidence would
have been exculpatory. She claims that the correct due process
analysis requires district courts “to consider the [factors found in
rule 16 of the Utah Rules of Criminal Procedure,] and the factors
considered by other states.” Then, when a defendant has shown a
reasonable probability that the lost evidence would have been
exculpatory, he or she must show the culpability of the State in the
loss of the evidence and the degree of prejudice to the defendant
resulting from the lost evidence. The State responds that our
articulation of the applicable due process analysis in Tiedemann
clearly encompassed a threshold requirement, and that such a
requirement comports with other due process standards. We agree
with the State.
   ¶ 22 As we discuss below, our decision in Tiedemann came after
the United States Supreme Court’s interpretation of the federal Due
Process Clause’s requirements in lost evidence cases. In Tiedemann,
we were called on to determine whether the Utah Constitution’s due
process clause imposed the same requirements as its federal
counterpart. We ultimately departed from the Supreme Court’s
approach as a matter of state due process and instead adopted an
approach consonant with rule 16 of the Utah Rules of Criminal
Procedure, other state courts’ interpretations of their own
constitutions, and other due process analyses. This approach
encompassed a threshold requirement that the defendant
demonstrate a reasonable probability that the lost evidence would
have been exculpatory. Only after this threshold showing is met

_____________________________________________________________
   9   2007 UT 49, 162 P.3d 1106.

                                    8
                              Cite as: 2017 UT 22
                              Opinion of the Court
should courts consider the factors set forth in Tiedemann in order to
provide an appropriate remedy. Thus, Ms. DeJesus’s argument that
the Tiedemann analysis does not require a threshold showing
misapprehends our precedent.
    ¶ 23 Prior to Tiedemann, the United States Supreme Court
decided Arizona v. Youngblood, 10 holding as a matter of federal
constitutional law that the “failure to preserve potentially useful
evidence does not constitute a denial of due process of law” “unless
a criminal defendant can show bad faith on the part of the police.”11
This “bad faith” standard confined constitutional relief “to that class
of cases where the interests of justice most clearly require it,” which
are those cases “in which the police themselves by their [bad faith]
conduct indicate that the evidence could form a basis for exonerating
the defendant.” 12
    ¶ 24 In Tiedemann we were called on to decide whether the due
process clause of the Utah Constitution also required “a defendant
[to] show bad faith on the part of the State in the loss or destruction
of evidence before he may seek a remedy.” 13 To answer this
question, we were guided by rule 16 of the Utah Rules of Criminal
Procedure and the approaches of other states’ courts. As we
described in Tiedemann, rule 16 “imposes broad obligations on
prosecutors” to produce or make available information that can aid
the defendant. 14 And a prosecutor’s failure to comply with rule 16’s
disclosure requirements permits a defendant to bring a motion to
exclude the prosecution’s evidence. 15 Although we recognized the
“nonexclusive factors” that courts consider when ruling on such
motions, 16 we reiterated that, under rule 16, “[t]he prosecutor’s good
_____________________________________________________________
   10   488 U.S. 51 (1988).
   11   Id. at 58.
   12   Id.
   13   2007 UT 49, ¶ 39.
   14 Id. ¶ 40; see also UTAH R. CRIM. P. 16(a) (requiring prosecutors to
“disclose to the defense upon request” several categories of evidence
or information, including all “evidence known to the prosecutor that
tends to negate the guilt of the accused, mitigate the guilt of the
defendant, or mitigate the degree of the offense for reduced
punishment”).
   15   See Tiedemann, 2007 UT 49, ¶ 41.
   16   Id.

                                       9
                                  STATE v. DEJESUS
                            Opinion of the Court
faith should not have . . . any impact on the trial court’s
determination of whether the prosecutor had violated his discovery
duties.” 17 We concluded that “[o]ur approach under rule 16 should
govern the destruction of evidence.” 18 Thus, we rejected Youngblood’s
bad faith requirement, concluding instead—consonant with rule
16—that “the culpability or bad faith of the state should be only one
consideration, not a bright line test, as a matter of due process under
article 1, section 7 of the Utah Constitution.”19
    ¶ 25 Having rejected the federal constitution’s approach to lost
evidence cases, we then discussed what the appropriate approach
should be under the Utah Constitution. We were guided in our
efforts by looking to our sister jurisdictions. 20 We found the Vermont
Supreme Court’s analysis, articulated in State v. Delisle, 21 particularly
persuasive. Under the Vermont court’s approach,
         if a defendant demonstrated “a reasonable possibility
         that the lost evidence would be exculpatory,” then the
         court would determine the proper sanctions by
         balancing “(1) the degree of negligence or bad faith on
         the part of the government; (2) the importance of the
         evidence lost; and (3) other evidence of guilt adduced
         at trial.” 22
Under this approach, a defendant must first “demonstrate[] ‘a
reasonable possibility that the lost evidence would be
exculpatory.”23 Once that threshold is satisfied, the court must
review and weigh three factors to determine the proper remedy.
   ¶ 26 We adopted a substantially similar analysis:
         In cases where a defendant has shown a reasonable
         probability that lost or destroyed evidence would be

_____________________________________________________________
   17   Id. ¶ 40 (citation omitted).
   18   Id. ¶ 41 (emphasis added).
   19   Id.
   20   See id. ¶¶ 42–43 (citing and discussing cases).
   21648 A.2d 632, 642–43 (Vt. 1994) (discussed in Tiedemann, 2007
UT 49, ¶ 43).
   22   Tiedemann, 2007 UT 49, ¶ 43 (quoting Delisle, 648 A.2d at 642–
43).
   23   Id. (citation omitted).

                                        10
                          Cite as: 2017 UT 22
                          Opinion of the Court
         exculpatory, we find it necessary to require
         consideration of the following: (1) the reason for the
         destruction or loss of the evidence, including the
         degree of negligence or culpability on the part of the
         State; and (2) the degree of prejudice to the defendant
         in light of the materiality and importance of the
         missing evidence in the context of the case as a whole,
         including the strength of the remaining evidence. 24
This approach encompassed the same threshold showing found in
the Vermont analysis, requiring defendants to “show[] a reasonable
probability that [the] lost or destroyed evidence would be
exculpatory.” 25 It also required a “balancing of factors on a case-by-
case basis,” which “embrace[d] the basic principles we ha[d]
adopted under rule 16 and the factors mentioned by other states.”26
    ¶ 27 So, contrary to Ms. DeJesus’s argument, the due process
analysis we articulated in Tiedemann is not a wide-ranging balancing
test that encompasses all of the factors applicable to rule 16—most of
which would be difficult if not impossible to directly apply to cases
involving lost evidence. 27 Instead, we established a two-step
analysis. First, the defendant must demonstrate a reasonable
probability that the lost evidence would have been exculpatory—the
_____________________________________________________________
   24   Id. ¶ 44.
   25   Id.
   26Id. This test encompasses two aspects: first, it encompasses “the
basic principles” of rule 16, including the principle that “the
culpability or bad faith of the state should be only one
consideration” in our due process analysis. Id. ¶ 41. Second, it
encompasses the factors adopted by other states, particularly the
culpability or bad faith of the State and the prejudice to the
defendant in light of the remaining evidence. See id. ¶ 43.
   27See id. ¶ 41 (discussing the “nonexclusive factors we consider
under rule 16,” which include “(1) the extent to which the
prosecution’s representation [of the existing evidence] is actually
inaccurate, (2) the tendency of the omission or misstatement to lead
defense counsel into tactics or strategy that could prejudice the
outcome, (3) the culpability of the prosecutor in omitting pertinent
information or misstating the facts, and (4) the extent to which
appropriate defense investigation would have discovered the
omitted or misstated evidence” (alteration in original) (citation
omitted)).

                                   11
                                STATE v. DEJESUS
                              Opinion of the Court
threshold requirement. Once a defendant has done so, the court
must balance the culpability of the State and the prejudice to the
defendant in order to gauge the seriousness of the due process
violation and to determine an appropriate remedy. The purpose for
this two-part analysis, with its threshold requirement, is to ensure
that a defendant only obtains a remedy—and that the State is only
sanctioned—when the defendant’s due process rights have actually
been violated. Indeed, this approach comports with the due process
analysis applicable in other circumstances.
    ¶ 28 For example, in Brady v. Maryland, 28 the United States
Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.” 29 So, to establish a
due process violation stemming from the non-disclosure of evidence,
a defendant must show a “reasonable probability that [the evidence]
would affect the outcome of the trial”30—essentially the same
threshold requirement we adopted in Tiedemann. If the evidence that
was wrongfully withheld would have had no bearing on the trial’s
outcome, a defendant’s due process right to a fundamentally fair
trial has not been violated. 31 In the same way, the destruction of
evidence violates a defendant’s due process rights only when there is
“a reasonable probability that [the] lost or destroyed evidence [was]
exculpatory.”32 Unless the evidence had some chance of affecting the
outcome of the trial, a defendant cannot claim a due process
violation.
   ¶ 29 We accordingly reject Ms. DeJesus’s claim that the due
process analysis set forth in Tiedemann for use in lost evidence cases
does not require a threshold showing that there is a reasonable


_____________________________________________________________
   28   373 U.S. 83 (1963).
   29 Id. at 87 (emphasis added); see also State v. Schreuder, 712 P.2d
264, 276 (Utah 1985) (“[A] criminal defendant will prevail on a Brady
claim ‘where the evidence is favorable to the accused and is material
either to guilt or to punishment.’” (quoting Moore v. Illinois, 408 U.S.
786, 794 (1972))).
   30   Schreuder, 712 P.2d at 276.
   31   See Tiedemann, 2007 UT 49, ¶ 45.
   32   Id. ¶ 44.

                                      12
                           Cite as: 2017 UT 22
                          Opinion of the Court
probability the lost evidence would have been exculpatory.33 Under
Tiedemann, a defendant must show as a threshold matter that there is
“a reasonable probability that [the] lost or destroyed evidence would
be exculpatory.” 34 Only after the defendant has established this
point—and accordingly established that there was a due process
violation resulting from the loss of evidence—should a court
consider the two Tiedemann factors. And these factors—the
culpability of the prosecution and the prejudice to the defendant—
guide the court’s analysis as to both the seriousness of the due
process violation and the remedy that is necessary to rectify the
violation.
   ¶ 30 In reaffirming our holding in Tiedemann that the due process
clause requires the State to preserve exculpatory evidence from loss
or destruction, we necessarily reject the approach advocated by the
concurrence. While it agrees with the reasoning of the majority, it
argues that we should “root” that reasoning and its concomitant
legal principles in “our inherent power to regulate proceedings in
our courts,” not “the Due Process Clause of the Utah Constitution.”35
This proposed adjustment, the concurrence contends, “is a modest
one,” 36 “counseled by the doctrine of constitutional avoidance”37
with a profound “practical and theoretical significance”; it affords us
“the power to refine and adjust the standard set forth in
Tiedemann.” 38
   ¶ 31 The chief obstacle to this proposal is Tiedemann itself. As we
noted above, Tiedemann came in response to the United States
Supreme Court decision of Arizona v. Youngblood and its requirement
that criminal defendants prove bad faith in the loss or destruction of
evidence in order to secure a remedy under the federal
_____________________________________________________________
   33 We note that the court of appeals in State v. Jackson apparently
interpreted Tiedemann in line with Ms. DeJesus’s argument—i.e.,
without any threshold requirement. See 2010 UT App 328, ¶¶ 10, 19–
21, 243 P.3d 902. To the extent Jackson suggests that the relevant due
process analysis does not require a defendant to meet this threshold
burden, it is overruled.
   34   Tiedemann, 2007 UT 49, ¶ 44.
   35   Infra ¶ 58.
   36   Infra ¶ 59.
   37   Infra ¶ 58.
   38   Infra ¶ 59.

                                   13
                            STATE v. DEJESUS
                          Opinion of the Court
constitution. 39 In rejecting this demanding bad-faith standard, we
consulted several of our sister jurisdictions that have held that the
due process clauses of their state constitutions afford defendants
more robust protections than the federal constitution in consequence
of lost or destroyed evidence. 40 And after consulting these
jurisdictions, we elected to join them, identifying the due process
clause of the Utah Constitution as the source of the Tiedemann test. 41
    ¶ 32 The concurrence rightly observes that in Tiedemann we
relied on rule 16. 42 But the concurrence relies on this fact to
recommend that we “hold that the duty and standards set forth in
Tiedemann are a matter of inherent judicial power and enforcement of
the terms of rule 16 of our rules of criminal procedure.” 43 This
misapprehends Tiedemann. In referencing rule 16, we did not ground
the Tiedemann test in our rules of criminal procedure. We instead
pointed lower courts to “[o]ur approach under rule 16” where “the
culpability or bad faith of the state should only be one consideration,
not a bright line test [unlike Youngblood], as a matter of [state] due

_____________________________________________________________
   39 Youngblood, 488 U.S. at 58 (holding as a matter of federal
constitutional law that the “failure to preserve potentially useful
evidence does not constitute a denial of due process of law” “unless
a criminal defendant can show bad faith on the part of the police”).
   40  Tiedemann, 2007 UT 49, ¶ 42 (collecting cases). Concerning the
concurrence’s claim that some of the authorities cited by Tiedemann
“were tied to a large extent to the standards like that set forth in our
criminal rule 16,” infra ¶ 67, we note that we read these cases
differently. While each case discussed rules of criminal procedure,
each holding was ultimately based on its state’s due process clause.
See, e.g., State v. Delisle, 648 A.2d 632, 642–43 (Vt. 1994) (“adopt[ing]
as the state constitutional standard” a three-factor test under the
state due process clause and concluding that the loss of evidence did
not violate defendant’s due process rights because he cross-
examined a medical examiner who provided the defendant favorable
testimony regarding the missing evidence); Thorne v. Dep’t of Public
Safety, 774 P.2d 1326, 1330 (Alaska 1989) (holding that the appellant’s
“due process rights at the revocation hearing were violated by the
state’s failure to preserve the videotape”).
   41   Tiedemann, 2007 UT 49, ¶ 44.
   42   Infra ¶ 67.
   43   Infra ¶ 58.

                                   14
                           Cite as: 2017 UT 22
                          Opinion of the Court
process.” 44 Rule 16, therefore, does not govern cases of lost or
destroyed evidence. It merely provides a helpful framework for
applying the Tiedemann test. Without question, we planted the
Tiedemann test in constitutional soil. 45
    ¶ 33 Tiedemann aside, the concurrence supports its proposal by
relying on the doctrine of constitutional avoidance and on the
practical benefits secured by a non-constitutional foundation for the
Tiedemann test. 46 As to constitutional avoidance, it is well established
that courts “will not pass upon a constitutional question although
properly presented by the record, if there is also present some other
ground upon which the case may be disposed of.” 47 But the
concurrence’s use of this principle is novel. In essence, the
concurrence contends that we should avoid procedural due process
questions “properly presented by the record” because we have
inherent authority to make rules of procedure. Taken to its logical
extreme, this would prospectively render much procedural due
process in this jurisdiction dead letter. We think this ill advised. 48
_____________________________________________________________
   44   Tiedemann, 2007 UT 49, ¶ 41.
   45 The concurrence acknowledges “that Tiedemann purported to
state a requirement of state due process” and concludes that we
should “leave open the possibility that our Utah Due Process Clause
may have a role to play in establishing a ‘floor’ or minimum
standard protecting an accused whose defense is interfered with by
the destruction of material evidence.” Infra ¶ 68. But the concurrence
does not attempt to identify this floor. And we can think of no more
suitable floor concerning the destruction of evidence than the one we
describe in Tiedemann—when the State loses or destroys evidence,
the court will impose appropriate sanctions aimed at preserving the
defendant’s right to a fair trial.
   46   Infra ¶¶ 58–59.
   47Slack v. McDaniel, 529 U.S. 473, 485 (2000) (quoting Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).
   48 We recognize in this case that the concurrence does not
advocate the creation of a new rule but argues that rule 16 governs
cases dealing with the loss or destruction of evidence. Yet
encouraging courts to rely on inherent judicial powers to avoid
constitutional issues will lead to the problem described above. In
addition, we note that in avoiding certain constitutional issues, the
concurrence would create new constitutional issues, as new rules
rooted in our court’s inherent judicial authority or in our rulemaking
                                                           (Continued)
                                  15
                           STATE v. DEJESUS
                         Opinion of the Court
    ¶ 34 As to the practical benefits secured by a non-constitutional
foundation for the Tiedemann test, we agree with the concurrence
that “[o]ur constitutional decisions are set in relative stone,” in that
“[t]hey place matters resolved by them beyond the policy reach of
this or other branches of government, and they establish precedent
that we ourselves may be bound by under the doctrine of stare
decisis.”49 But matters resolved by our constitutional decisions often
concern fundamental rights. In this case, our decision concerns Ms.
DeJesus’s right to a fair trial when facing the deprivation of her
liberty. When matters such as this are before us, the proper
interpretation and application of the constitution is rightly set in
relative stone to ensure that an individual’s fundamental rights are
not subject to the ever changing judgments of public policy.
    ¶ 35 In the end, we have not, as the concurrence suggests,
“distort[ed] the constitution,” 50 but have simply reaffirmed our
precedent regarding the due process concerns that arise when the
State is responsible for the loss or destruction of evidence that has a
reasonable probability of exculpating a criminal defendant. The
concurrence, by contrast, does not propose a “modest” alteration to
our precedent but a monumental one. By uprooting the Tiedemann
test from constitutional soil, the concurrence would significantly
weaken a fundamental right: Whatever protections a defendant
receives when faced with lost or destroyed exculpatory evidence
would turn on the discretion of a particular judge in the exercise of
his or her inherent judicial authority. And appellate review of that
exercise would be reviewed for an abuse of discretion. 51 This would
be a poor substitute for the protections, including more robust
appellate review, that our interpretation of the due process clause




power could be subject to constitutional challenge on the ground
that they provide less protection than constitutionally mandated.
   49   Infra ¶ 70.
   50   Infra ¶ 77.
   51 See State v. Dick, 2012 UT App 161, ¶ 2, 280 P.3d 445 (“A trial
court’s ruling on a rule 16 issue is reviewed for an abuse of
discretion.”); see also Coroles v. State, 2015 UT 48, ¶ 24, 349 P.3d 739
(concluding that in the civil context, a court’s decision to sanction a
party for its failure to comply with a discovery deadline is reviewed
for an abuse of discretion).

                                  16
                           Cite as: 2017 UT 22
                           Opinion of the Court
affords criminal defendants. 52 We will not invoke the doctrine of
constitutional avoidance to essentially erase this court’s previous
conclusion that government loss or destruction of exculpatory
evidence directly implicates due process. 53
   ¶ 36 The district court correctly imposed a threshold requirement
that Ms. DeJesus establish a reasonable probability that the lost
evidence would have been exculpatory—a requirement established
under our state due process clause. We now review the district
court’s conclusion that Ms. DeJesus failed to meet that threshold
requirement and its alternative determination that, even if she had,
she was not entitled to a dismissal under the two Tiedemann factors.
        II. The District Court Erred in Its Application of Tiedemann
   ¶ 37 The district court articulated two different bases for its
denial of Ms. DeJesus’s motion to dismiss, consistent with its
understanding of the due process analysis set forth in State v.
Tiedemann 54: first, Ms. DeJesus failed to demonstrate as a threshold
matter a reasonable probability that the lost footage would have
been exculpatory; and second, even if she satisfied the threshold
requirement, she failed to show that the Tiedemann factors required
_____________________________________________________________
   52  See Tiedemann, 2007 UT 49, ¶ 12 (“Whether the State’s
destruction of potentially exculpatory evidence violates due process
is a question of law that we review for correctness.”).
   53 The concurrence argues that our reasoning in this regard is
circular, in that we assume the Tiedemann standard to be required by
the Utah Constitution’s due process clause. Infra ¶ 81. But this
simply highlights our disagreement with the concurrence. The
concurrence does not view the Tiedemann standard as having been
dictated by the Utah Constitution. For the reasons explained above,
we disagree. We view Tiedemann to have held that the standard it
articulates is required by the Utah Constitution. So we would be
weakening a fundamental right by avoiding the question of whether
the Tiedemann standard is required by the Utah Constitution. If we
were addressing in the first instance whether the Utah Constitution
requires the Tiedemann standard, then it would indeed be circular to
claim that we would be weakening a fundamental right if we failed
to adopt that standard. But because we read Tiedemann as holding
that the Utah Constitution does indeed require that standard, we can
say that grounding the Tiedemann standard in a procedural rule,
rather than the Utah Constitution, would weaken the right.
   54   2007 UT 49, ¶ 44, 162 P.3d 1106.

                                    17
                           STATE v. DEJESUS
                         Opinion of the Court
dismissal of her case. We discuss each of these determinations below
and conclude that the district court erred in its application of the due
process analysis found in Tiedemann to the facts of the case.
A. Ms. DeJesus Established a Reasonable Probability that the Lost Footage
                    Would Have Been Exculpatory
    ¶ 38 The first basis for the district court’s denial of Ms. DeJesus’s
motion to dismiss was that she had failed to establish as a threshold
matter that there was a reasonable probability the lost surveillance
footage would have been exculpatory. In reviewing the district
court’s decision on this matter, we reiterate that we accept its factual
determinations unless clearly erroneous. 55 But the district court’s
determination of what constitutes a reasonable probability for
purposes of the Tiedemann analysis is a legal question reviewed for
correctness. 56 So, though we defer to the court’s conclusions as to the
facts of Ms. DeJesus’s case, we owe no deference to its determination
that those facts fail to satisfy her threshold burden under Tiedemann.
    ¶ 39 Of course, in order to analyze whether Ms. DeJesus
established a reasonable probability that the lost evidence would
have been exculpatory, we must first determine what constitutes a
reasonable probability for purposes of a defendant’s due process
right to exculpatory evidence. Although a “reasonable probability”
standard defies a precise definition or quantifiable value, we have
described it as “a probability sufficient to undermine confidence in
the outcome.” 57 And though it is more than a “mere possibility,” it

_____________________________________________________________
   55   See id. ¶ 12.
   56   See id.
   57State v. Knight, 734 P.2d 913, 920 (Utah 1987) (citation omitted).
The parties have argued at some length over whether a “reasonable
probability” is a different standard than a “reasonable possibility” or
a “reasonable likelihood”—standards that have been employed by
other courts. See, e.g., State v. Delisle, 648 A.2d 632, 642 (Vt. 1994)
(employing a “reasonable possibility” standard to a due process
claim founded on lost or destroyed evidence). But we see little
substantive difference between any of these articulations. See Knight,
734 P.2d at 920 (stating that a “reasonable probability” is
“substantively identical” to a “reasonable likelihood”). Thus, though
we use the phrase “reasonable probability” to maintain consistency
with Tiedemann, we believe that the distinctions between these
various articulations—if any exist—are of no practical effect.

                                   18
                            Cite as: 2017 UT 22
                           Opinion of the Court
falls “substantially short of the ‘more probable than not’” standard.58
Ultimately, in order to satisfy the reasonable probability standard in
the lost evidence context, a defendant must make some proffer as to
the lost evidence and its claimed benefit. 59 So long as that proffer is
not pure speculation or wholly incredible, the standard will be
satisfied. 60
    ¶ 40 Our review of the district court’s determination that
Ms. DeJesus failed to satisfy the threshold reasonable probability
requirement leads us to conclude that the court applied a more
stringent standard than the one we just articulated. The court stated
that “[t]here must be something in the evidence before the
court . . . that shows the court there is some reasonable basis on
which to believe the recording would show what defendant claims.”
This standard suggests that defendants must provide evidence that
the lost or destroyed evidence was in fact exculpatory. This is too
high of a burden given both the reasonable probability standard
articulated in Tiedemann and the fact that, in many lost evidence
cases, there may be little extrinsic, corroborating evidence.
Defendants will likely never be able to fully establish exactly what
the evidence would have shown. Instead, all a defendant must show
is that there is a reasonable probability the evidence would have
been exculpatory.
    ¶ 41 Applying the correct standard, we conclude that
Ms. DeJesus established a reasonable probability that the lost footage
would have been exculpatory. She presented the testimony of her
fiancée, Ms. Ataata, who testified that Officer Hansen, Ms. DeJesus,
and Ms. Kahn “were all on the ground” during the altercation, and
that Ms. Kahn “was right there on [Officer Hansen’s] back the whole
time,” attempting to “[s]wing . . . over him to get to [Ms.] DeJesus.”
_____________________________________________________________
   58   Knight, 734 P.2d at 920.
   59Cf. State v. Nielsen, 727 P.2d 188, 193 (Utah 1986) (holding that
in order to establish a due process violation resulting from the
prosecution’s refusal to disclose the identity of a confidential
informant, “a defendant must make some showing that disclosure of
an informant’s identity is material and essential to his defense”
(emphasis added)).
   60 Cf. State v. Mohamud, 2017 UT 23, ¶¶ 24, 26, --- P.3d --- (holding
that a defendant failed to satisfy the reasonable probability standard
when he provided only speculation as to what the lost evidence
would have shown).

                                    19
                           STATE v. DEJESUS
                         Opinion of the Court
Because the crime with which Ms. DeJesus had been charged—
assault—requires the prosecution to prove “inten[t] to cause bodily
injury,” 61 Ms. Ataata’s testimony suggests that Ms. DeJesus may not
have intended to cause bodily injury to Officer Hansen, but was
instead attempting to strike Ms. Kahn.
    ¶ 42 The district court found Ms. Ataata’s testimony “not
believable” based on the close relationship between Ms. Ataata and
Ms. DeJesus, its finding that Ms. DeJesus appeared to be coaching
Ms. Ataata’s testimony, and the fact that Ms. Ataata’s view of the
incident was partially obstructed, as she was viewing it at an angle.
“The court thus d[id] not accept her testimony at face value as being
testimony the court can rely on to find the events were as she
described.” But the court specifically found that the testimony was
not wholly incredible, stating that it was “not indicating such
evidence cannot be presented by defendant at a trial” and that “[a]
jury may well conclude differently.”
    ¶ 43 Ms. DeJesus also argues that the testimony of Ms. Ataata is
strengthened by the arguably inconsistent testimony offered by
Officer Hansen. During the preliminary hearing, the officer testified
that Ms. Kahn “was on my back, I don’t know exactly where she
was. . . . [S]he was no longer on my shoulder though, I could not see
her behind me, she was behind me,” and seemed to agree with
defense counsel’s statement that “she could’ve been as close as
inches away but you couldn’t see her?” But during the evidentiary
hearing on Ms. DeJesus’s motion to dismiss, he testified that
Ms. Kahn was about four to six feet behind him when he pushed
Ms. DeJesus to the ground. Officer Hansen explained this
discrepancy by stating that his initial testimony went to what he
knew of Ms. Kahn’s location during the altercation, but his later
testimony was based on his review of the surveillance footage, which
clarified where Ms. Kahn actually was standing.
    ¶ 44 We agree with Ms. DeJesus that this evidence—the
testimony of Ms. Ataata and the arguably inconsistent testimony of
Officer Hansen—is sufficient to establish a reasonable probability
that the lost surveillance footage would have been exculpatory. The
evidence put on by Ms. DeJesus was not wholly incredible, and it
established that her claim that she did not intend to attack
Officer Hansen, but rather was attempting to strike Ms. Kahn, was
more than speculation. We emphasize that we do not suggest that

_____________________________________________________________
   61   UTAH CODE § 76-5-102.5.

                                  20
                         Cite as: 2017 UT 22
                         Opinion of the Court
Ms. DeJesus has actually established what the lost evidence would
have shown; we simply hold that the testimony of Ms. Ataata, when
combined with the arguably inconsistent testimony of
Officer Hansen, crosses the low threshold of “reasonable
probability.” 62 Together, this testimony provides a reasonably
probable explanation of both what the lost evidence might have
shown and how that evidence could have benefitted Ms. DeJesus.
Accordingly, we hold that the district court erred by imposing too
stringent a standard on Ms. DeJesus at the threshold inquiry, and
that, under the proper “reasonable probability” standard described
above, Ms. DeJesus satisfied her threshold burden. 63 We turn now to
the district court’s application of the two Tiedemann factors.
         B. The Tiedemann Factors Weigh in Favor of Dismissal
   ¶ 45 As discussed above, once “a defendant has shown a
reasonable probability that lost or destroyed evidence would be
exculpatory,” the defendant has established that a due process


_____________________________________________________________
   62 The State argues that “all credible evidence . . . demonstrated
that the lost footage would not have been favorable to the defense
but instead would have conclusively proven the State’s case.” But it
is usually inappropriate to permit the State to undermine a
defendant’s claim that there is a reasonable probability that lost
evidence would have been exculpatory by having the State describe
what the evidence actually showed. The reasonable probability
threshold inquiry does not involve a balancing of evidence to
determine which side’s story about the lost evidence is more
believable and whether the evidence was in reality inculpatory or
exculpatory; it focuses entirely and solely on whether the defendant
can show a reasonable probability that the evidence would have been
exculpatory. If we were to hold otherwise, the State would be
incentivized to destroy relevant evidence and later claim that the
evidence would have only supported its own version of the events. It
is the State’s duty to preserve relevant evidence, and it cannot escape
that duty—or the consequences of its breach of that duty—simply by
putting on evidence as to what the lost evidence would have shown.
   63 By concluding that the district court applied an incorrect
standard, we do not wish to be critical of that court. The court’s error
stemmed from the dearth of precedent interpreting and applying
Tiedemann. Indeed, as the court itself noted, “Just what is ‘reasonably
probable’ is not as clear as the court would like.”

                                  21
                             STATE v. DEJESUS
                          Opinion of the Court
violation occurred. 64 If this determination has been made, courts
must consider two factors to determine both the seriousness of the
due process violation and the remedy that is necessary to ensure that
the defendant receives a fundamentally fair trial:
         (1) the reason for the destruction or loss of the
         evidence, including the degree of negligence or
         culpability on the part of the State; and (2) the degree
         of prejudice to the defendant in light of the materiality
         and importance of the missing evidence in the context
         of the case as a whole, including the strength of the
         remaining evidence. 65
And as we stated in Tiedemann, though these two factors guide the
analysis, “[t]he touchstone for the balancing process is fundamental
fairness.” 66
    ¶ 46 The only remedy sought in this case is dismissal. 67 The
district court, after considering the two factors discussed above,
concluded that such a remedy was unnecessary. We discuss the
district court’s consideration of the two factors in turn and conclude
_____________________________________________________________
   64   Tiedemann, 2007 UT 49, ¶ 44.
   65   Id.
   66   Id. ¶ 45.
   67 Both Ms. DeJesus and the defendant in State v. Mohamud sought
only dismissal as the remedy for lost evidence. See Mohamud, 2017
UT 23, ¶ 5. We note, however, that Tiedemann speaks in terms of
“sanctions” and “strik[ing] a balance [to] preserve[] defendants’
constitutional rights without undue hardship to the prosecution.”
2007 UT 49, ¶ 45. Nowhere is dismissal mandated as the sole
remedy. Because “[t]he touchstone for the balancing process is
fundamental fairness,” courts may find that other, less drastic
remedies may adequately protect the due process rights of criminal
defendants. Id. These remedies may include jury instructions
requiring the jury to infer that the lost evidence would have
corroborated the defendant’s version of events, prohibitions on
witnesses who would testify as to the content or subject of the lost
evidence, or increased time for discovery. Of course, in cases where
the State’s culpability and the prejudice to the defendant is
sufficiently great, dismissal may be the only remedy that can
adequately protect the due process rights of the defendant.



                                    22
                          Cite as: 2017 UT 22
                         Opinion of the Court
that, though the court properly analyzed the culpability of the State
in the loss of the evidence, it incorrectly determined that there was
no prejudice to the defendant resulting from the lost footage. And
upon our consideration of these factors, we conclude that dismissal
was an appropriate remedy.
1. Culpability of the State
    ¶ 47 The district court engaged in a lengthy analysis of the
culpability of the State in the loss of the surveillance footage. It
rejected the State’s argument—an argument the State made again on
appeal—that the State would have had no motivation to destroy or
fail to preserve the evidence because the evidence would have
supported the State’s case against Ms. DeJesus. As the court
reasoned, “If the recording showed exactly as [Officer] Hansen said,
certainly it would seem to this court that common sense would
indicate that recording would be retained . . . . The motivation,
frankly, to destroy or fail to preserve such a recording would come if
the recording supported some other factual situation than the one
[Officer] Hansen describes.” Thus, there may have been some
motivation by the State to permit the footage to be recorded over and
lost. Indeed, the court stated that “it is very difficult, if not
impossible, for this court to understand why prison personnel would
not, with full knowledge that a claimed assault had occurred by an
inmate against a guard, maintain a recording of that event.”
    ¶ 48 The court also found, however, “that the lack of the
evidence . . . is [not] related to any ‘decision’ made by anyone.” The
facts supporting the court’s decision were that Ms. Kemp, the
investigator, asked someone—an employee she did not know—to
make a copy of the recording, followed up over thirty days later, and
was informed that “if a hard copy had been made, it was lost.” The
court noted that Ms. Kemp had failed to follow up within a
timeframe that would have permitted the footage to be saved
because she was unusually busy at the time and found that “the
reasons given for the lack of preservation are believable.” Though it
stated that “[t]he investigator should have . . . conducted her
investigation in a way that retains relevant evidence,” it concluded
that “[t]he failure to do so, however, was at most negligence, and not
gross negligence and certainly not intentional.”
    ¶ 49 The court’s factual findings in this regard have not been
challenged by either party and do not appear to be clearly erroneous.
Further, we see no error in the legal standard employed by the court
in its consideration of the State’s culpability. Accordingly, we agree
with the district court that the State has shown “negligence but not

                                  23
                            STATE v. DEJESUS
                          Opinion of the Court
in a high degree” by failing to preserve the surveillance footage. We
turn now to the second Tiedemann factor.
2. Prejudice to the Defendant
    ¶ 50 The second Tiedemann factor is “the degree of prejudice to
the defendant in light of the materiality and importance of the
missing evidence in the context of the case as a whole, including the
strength of the remaining evidence.” 68 The district court reasoned
that there could be prejudice to Ms. DeJesus resulting from the loss
of the evidence “only if the recording shows in essence what
defendant claims.” And “[b]ecause [the] court d[id] not believe
defendant ha[d] shown any reasonable, believable probability the
recording showed what defendant claims,” it concluded that there
was no prejudice.
    ¶ 51 The court’s analysis is flawed because it relied on its earlier
conclusion that Ms. DeJesus had failed to establish a reasonable
probability that the lost evidence would have been exculpatory—a
conclusion that was itself flawed because it imposed too high a
burden—to find that there was no prejudice to Ms. DeJesus. This
circular reasoning improperly required Ms. DeJesus to establish
what the footage would have shown in order to claim that she was
prejudiced by its loss. Instead, the court should have focused on the
importance of having video footage of the altercation, given the
other evidence available in the case. When viewed in this light, the
high degree of prejudice to Ms. DeJesus becomes readily apparent.
    ¶ 52 Ms. DeJesus had called two witnesses to testify during the
evidentiary hearing on the motion to dismiss as to the events of the
altercation. The first witness, Ms. Dash, was Ms. DeJesus’s cellmate
during the altercation. As soon as she took the stand, however, the
State asked the court to instruct Ms. Dash about her right against
self-incrimination, noting that “[s]he was originally charged in this
case,” and that the charge had been dismissed without prejudice.
The State suggested that, “based on her testimony today, [it] could
refile that case.” Ms. Dash apparently took the State’s warning to
heart and refused to testify. This left only Ms. Ataata, a fellow
inmate and Ms. DeJesus’s fiancée, to testify on behalf of Ms. DeJesus.
And as the court found, Ms. Ataata’s testimony was less believable
due to her close relationship with Ms. DeJesus and her partially
obstructed view of the altercation. The State’s evidence, on the other


_____________________________________________________________
   68   Tiedemann, 2007 UT 49, ¶ 44.

                                   24
                          Cite as: 2017 UT 22
                         Opinion of the Court
hand, centered entirely on the testimony of Officer Hansen, the
officer who was allegedly struck by Ms. DeJesus.
    ¶ 53 Thus the “context of [this] case” 69 is a literal he-said/she-
said dispute between witnesses that would turn on which side’s
witnesses were most credible. On the State’s side, we have a peace
officer, Officer Hansen. On Ms. DeJesus’s side, we have her fiancée, a
fellow inmate, whose testimony was already determined by the
district court to be less believable than Officer Hansen’s. It is hard to
overstate “the materiality and importance of the missing evidence”
in this context.70 The surveillance footage would have changed the
entire nature of the case, potentially permitting Ms. DeJesus to show
actions consistent with her claims without needing to rely on a
potentially unbelievable witness. Indeed, we can conceive of no
other evidence that would be as helpful or probative than an actual
video recording of the events. Nor can we think of other evidence
that can serve as an adequate replacement.
   ¶ 54 Weighing the two Tiedemann factors, we determine that the
State’s failure to preserve the footage is a severe violation of
Ms. DeJesus’s right to a fair trial and that dismissal is an appropriate
remedy. The State’s negligence forced Ms. DeJesus into a situation
where the case turned entirely on the believability of each side’s
witnesses. The State also implicitly encouraged one of Ms. DeJesus’s
witnesses to not testify, leaving only Ms. Ataata to testify on her
behalf—a fellow inmate with a close relationship with Ms. DeJesus
who was already found to be less than credible by the court. Thus,
Ms. DeJesus was required to attempt to defend against the
accusations of the State by pitting the credibility of Ms. Ataata—a
witness likely to be seen as biased and not credible—against
Officer Hansen. And given the indisputably central role a video
recording of the incident would play, we cannot say that the loss of
the evidence had only a negligible impact on Ms. DeJesus’s right to a
fundamentally fair trial. We accordingly hold that, under Tiedemann,
dismissal is an appropriate remedy. We therefore reverse the
decision of the district court and remand for an entry of dismissal.
                              Conclusion
   ¶ 55 The district court erred by applying a more stringent


_____________________________________________________________
   69   Id.
   70   Id.

                                   25
                             STATE v. DEJESUS
   A.C.J. Lee, concurring in part and concurring in the judgment
“reasonable probability” standard than is required under the due
process analysis articulated in State v. Tiedemann. 71 When the correct
standard is applied, Ms. DeJesus’s proffer as to what the footage
may have shown and how the footage would have aided her defense
meets the threshold by establishing a reasonable probability that the
footage would have been exculpatory. By so doing, Ms. DeJesus
established that her due process right to a fair trial was violated. We
accordingly must weigh the two Tiedemann factors to gauge the
severity of the due process violation. And based on the negligence of
the State in failing to preserve the footage and the crucial role that
footage would have played in the case, we ultimately hold that
dismissal is an appropriate remedy. We therefore reverse the district
court’s denial of Ms. DeJesus’s motion to dismiss and remand for
that court to enter an order of dismissal.

   ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
the judgment:
    ¶ 56 In this case, as in State v. Tiedemann, 2007 UT 49, ¶ 44, 162
P.3d 1106, the court holds that the State has an obligation to preserve
evidence that is reasonably likely to affect the outcome of trial.
Further echoing Tiedemann, the majority next concludes that the
decision on an appropriate remedy for a violation of the duty of
preservation depends on a “balance” of two factors—“the culpability
of the state and the prejudice to the defendant.” Supra ¶ 27. And
finally, applying these standards, the court concludes that the State’s
failure to preserve the evidence in question in this case justifies
dismissal of the charges against Ms. DeJesus.
   ¶ 57 I agree with all of these premises and conclusions. The State
has a duty to preserve evidence in its possession that is of known
materiality to a criminal case. And the destruction of the video
recording at issue here is sufficiently troubling that I support the
decision to dismiss the charges in this case.
    ¶ 58 That said, I write separately because I would identify a
different basis from the majority for the State’s duty of preservation
and for the court’s power to impose a sanction for a violation of that
duty. Unlike the majority, I would not root these principles in the
Due Process Clause of the Utah Constitution. I would base them on
our inherent power to regulate proceedings in our courts—as
reflected in our rules of criminal procedure (specifically, rule 16).
_____________________________________________________________
   71   2007 UT 49, ¶ 44, 162 P.3d 1106.

                                    26
                         Cite as: 2017 UT 22
   A.C.J. Lee, concurring in part and concurring in the judgment
Thus, I would defer to and leave unaltered the standards set forth in
Tiedemann. But because those standards are easily sustained without
reference to the Due Process Clause, I would exercise the restraint
counseled by the doctrine of constitutional avoidance. I would hold
that the duty and standards set forth in Tiedemann are a matter of
inherent judicial power and enforcement of the terms of rule 16 of
our rules of criminal procedure. And I would reverse on that basis,
without concluding (one way or another) that the Tiedemann
principles are required as a matter of constitutional law. 72
    ¶ 59 The adjustment I propose is a modest one on the surface.
But it has both practical and theoretical significance. If we mean to
retain the power to refine and adjust the standard set forth in
Tiedemann (as the majority suggests, see supra ¶¶ 21–29), we should
avoid rooting that standard in constitutional soil. We should base it
instead on our inherent power to regulate practice and procedure in
our courts, under rule 16 or otherwise.
                                     I
    ¶ 60 For at least a couple of centuries, the courts have adverted to
the existence of “[c]ertain implied powers” that “necessarily result to
our Courts of justice from the nature of their institution.” United
States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812). Such powers
include those the courts deem necessary “to preserve [their] own
existence and promote the end and object of [their] creation.” Id. at
33. To that end, the courts have long asserted the authority to impose
contempt sanctions in an effort to enforce “the observance of order.”
Id. at 34. As a close cousin to the contempt power, the courts have
also long maintained the power to sanction a party for destroying
evidence of relevance to the disposition of a case. 73

_____________________________________________________________
   72 My point is mostly theoretical: I would retain each of the legal
standards set forth in Tiedemann and reinforced again today, and
alter only the theoretical basis for those standards. But theory
matters. It matters most, perhaps, when it comes to our power of
judicial review under the constitution. A judicial declaration of a
constitutional requirement is a matter of grave significance. When
we exercise that power, we remove the matter from further
adjustment or amendment at the policymaking level. That is a
significant step. We should not take it lightly.
   73See Bart S. Wilhoit, Comment, Spoliation of Evidence: The Viability
of Four Emerging Torts, 46 UCLA L. REV. 631, 637–38 (1998)
(“Although the common law did not recognize an independent
                                                           (Continued)
                                27
                           STATE v. DEJESUS
    A.C.J. Lee, concurring in part and concurring in the judgment
    ¶ 61 This power is sometimes framed as a matter of the common
law. The common law doctrine of relevance to the destruction of
material evidence is called spoliation. 74 There is a split in the courts
on whether to recognize a common-law claim for damages for
spoliation. 75 But most courts have recognized some form of common-
law or inherent-power-based doctrine that allows for the imposition
of sanctions against a party who destroys or fails to preserve




action in tort, common-law courts allowed juries to infer that
destroyed evidence would have worked against the spoliating party.
Beginning with Armory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1772) in
1772, courts began to establish legal precedent to remedy the
destruction of evidence.”); Jonathan Judge, Reconsidering Spoliation:
Common-Sense Alternatives to the Spoliation Tort, 2001 WIS. L. REV. 441,
446–47 (“Courts have tried to fill these gaps [of sanctioning
spoliation] by relying on the ‘inherent powers’ of the court—powers
needed for the exercise of all others. Since the court must structure
its proceedings for the most effective ascertainment of the truth, it
arguably can punish spoliation of any sort that the court believes is
intended to hinder its work.” (footnotes omitted)); 61A AM. JUR. 2d
Pleading § 601 (“[T]he federal courts possess the inherent power to
manage their own affairs to achieve the orderly and expeditious
disposition of cases. This includes the inherent power to impose
reasonable and appropriate sanctions for conduct which abuses the
judicial process, since the court possesses the power to punish for
contempt, as well as the power to control admission to its bar,
discipline attorneys who appear before it, dismiss a lawsuit or enter
a default judgment, impose fines, and assess attorney’s fees.”
(footnotes omitted)).
   74  The term looks like a typo—a mistaken attempt to speak of
spoilation. But the term spoliation has deep roots in the common law.
See supra ¶ 60, n.73. And it is traced etymologically to the Latin
spoliationem, meaning “a robbing, plundering, pillaging.” Spoliation,
ONLINE                      ETYMOLOGY                      DICTIONARY,
http://www.etymonline.com/index.php?allowed_in_frame=0&sear
ch=spoliation (last visited Mar. 27, 2017).
   75 See generally Intentional Spoliation of Evidence, Interfering with
Prospective Civil Action, As Actionable, 70 A.L.R.4th 984 (noting that
some states do not recognize spoliation as a common law tort, while
setting forth the elements of the tort in other states).

                                   28
                          Cite as: 2017 UT 22
    A.C.J. Lee, concurring in part and concurring in the judgment
evidence in litigation. 76 And, recognizing that not all acts of spoliation
have the same impact, the common law has carved out room for
different remedies—ranging from a judgment against the infringing
party to a mere instruction permitting the jury to draw an adverse
inference that the missing evidence would have harmed that party’s
case. 77
   ¶ 62 Our courts have also formulated rules of procedure to
regulate the practice in this area. Rule 16 of the federal rules of
criminal procedure requires the government to disclose or permit the
defendant to inspect and copy evidence in its “possession, custody,
or control” that it intends to introduce at trial or that is material to
the preparation of the defense of a case. FED. R. CRIM. P. 16. Covered
evidence includes “photograph books, papers, documents, data,
photographs, tangible objects, [and] buildings or places.” Id.
16(a)(1)(E). In light of the duty to disclose, the federal courts have
held that the government bears a duty to preserve discoverable




_____________________________________________________________
   76  See, e.g., In re Evans, 130 P. 217, 224 (Utah 1913) (“It is
undoubtedly true that courts of general and superior jurisdiction
possess certain inherent powers not derived from any statute.
Among these are the power to punish for contempt, to make,
modify, and enforce rules for the regulation of the business before
the court . . . . Such inherent powers of courts are necessary to the
proper discharge of their duties.”); Restaurant Mgmt. Co. v. Kidde-
Fenwal, Inc., 986 P.2d 504, 507–08 (N.M. Ct. App. 1999) (“A remedy
for the destruction of evidence may be available pursuant to the
inherent power of the courts ‘to impose sanctions on both litigants
and attorneys in order to regulate their docket[s], promote judicial
efficiency, and deter frivolous claims.’ . . . The rationale underlying
the existence of the inherent power of the courts is that ‘a court must
be able to command the obedience of litigants and their attorneys if
it is to perform its judicial functions.’” (alteration in original)
(citations omitted)).
   77 See, e.g., Fines v. Ressler Enters., Inc., 820 N.W.2d 688, 694 (N.D.
2012) (affirming the district court’s dismissal of a case where the
plaintiff was found to have destroyed evidence); Stender v. Vincent,
992 P.2d 50, 60 (Haw. 2000) (holding that it was not an abuse of
discretion for a trial court to give an “adverse inference instruction”
against a party that destroyed evidence).

                                    29
                            STATE v. DEJESUS
    A.C.J. Lee, concurring in part and concurring in the judgment
evidence. 78 And when that duty is breached, the federal courts have
exercised their discretion under the rules to impose a sanction—to
enter “any . . . order that is just under the circumstances.” Id.
16(d)(2)(D). The sanction orders imposed for failure to preserve have
included an adverse inference instruction 79 and dismissal of criminal
charges. 80 In deciding on the appropriate sanction, moreover, the
courts have articulated a number of factors to be considered. Those
factors include the reasons for the government’s nondisclosure, the
extent of the prejudice to the defense, and the feasibility of rectifying
the prejudice through a continuance or otherwise. 81


_____________________________________________________________
   78See 3C CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE 189 (2008) (citing Advisory Committee Notes to Federal
Rules of Criminal Procedure).
   79 See Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (“In
order for an adverse inference to arise from the destruction of
evidence, the party having control over the evidence must have had
an obligation to preserve it at the time it was destroyed.”); People v.
Kelly, 467 N.E.2d 498, 501 (N.Y. 1984) (applying New York rule,
which parallels federal rule; concluding that dismissal was an abuse
of discretion where adverse inference instruction would have
adequately remedied prejudice caused by government’s destruction
of evidence).
   80 See United States v. Zaragoza-Moreira, 780 F.3d 971, 982 (9th Cir.
2015) (directing the district court on remand to dismiss the
indictment against the defendant because the government had the
duty to preserve evidence but failed to do so); People v. Howard, 469
N.Y.S.2d 871, 874 (Crim. Ct. 1983) (applying New York rule;
concluding that sanction of dismissal was appropriate).
   81 See, e.g., Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv.,
Inc., No. 97-5089, 1998 WL 68879, at *4 (10th Cir. Feb. 20, 1998)
(“When deciding whether to sanction a party for the spoliation of
evidence, courts have considered a variety of factors, two of which
generally carry the most weight: (1) the degree of culpability of the
party who lost or destroyed the evidence, and (2) the degree of
actual prejudice to the other party.”); Flury v. Daimler Chrysler Corp.,
427 F.3d 939, 946 (11th Cir. 2005) (considering culpability of the
spoliator and prejudice to the opposing party in assessing whether
dismissal is warranted or an adverse inference instruction is
appropriate).

                                   30
                         Cite as: 2017 UT 22
   A.C.J. Lee, concurring in part and concurring in the judgment
    ¶ 63 Our Utah rule is a general parallel of the federal provision.
Like the federal rule, our criminal rule 16 requires the government to
“disclose to the defense” certain information in its possession. UTAH
R. CRIM. P. 16(a). Under the Utah rule, the information to be
disclosed includes “evidence which the court determines on good
cause shown should be made available to the defendant in order for
the defendant to adequately prepare his defense.” Id. 16(a)(5). And
our rule also recognizes the authority of the court to enter sanctions
for any failure “to comply with this rule.” Id. 16(g). Like the federal
rule, our rule spells out specific sanctions that may be entered, but
also states that the court “may enter such other order as it deems just
under the circumstances.” Id. 16(g).
                                    II
    ¶ 64 The Tiedemann case was decided against the above
backdrop. Mr. Tiedemann’s case came before us on an interlocutory
appeal. Tiedemann stood charged with aggravated murder,
aggravated kidnapping, and aggravated sexual assault. He was
initially declared incompetent to stand trial. 2007 UT 49, ¶ 7. And the
charges against him were dismissed after he was subjected to civil
commitment. Id. At that point Tiedemann was deemed “unlikely to
ever be found competent to stand trial.” Id. And “the state evidence
custodian notified the investigating officer that physical evidence
from the case would be destroyed unless an objection was filed
within thirty days.” Id. ¶ 8. Absent any objection, certain physical
evidence was destroyed. When Tiedemann was released from the
state hospital many years later, the State refiled charges against him.
Tiedemann, now deemed competent to stand trial, moved “to
dismiss the case due to destruction of evidence.” Id. ¶ 10.
    ¶ 65 The district court denied Tiedemann’s motion, and this
court agreed to consider that decision on interlocutory appeal. Id. In
challenging the denial of the motion to dismiss, Tiedemann asserted
a federal due process argument. Citing Arizona v. Youngblood, 488
U.S. 51 (1988), Tiedemann argued that his right to due process was
infringed because “the evidence may have been exculpatory, no
comparable evidence still exists, and the destruction was done in bad
faith.” Tiedemann, 2007 UT 49, ¶ 30. But Tiedemann also asserted
alternative grounds for his motion to dismiss. He cited rule 16 of our
rules of criminal procedure 82 as well as the Due Process Clause of the
_____________________________________________________________
   82Brief for Tiedemann at 50, State v. Tiedemann, 2007 UT 49, 162
P.3d 1106 (arguing that the prosecution has a duty to preserve
evidence and that the evidence in this case “would have been
                                                        (Continued)
                                31
                           STATE v. DEJESUS
   A.C.J. Lee, concurring in part and concurring in the judgment
Utah Constitution. And he urged the court to dismiss the charges
against him even if it did not find the “bad faith” required as a
matter of federal due process under Youngblood, 488 U.S. at 58. 83
     ¶ 66 The Tiedemann majority found a lack of “any degree of
culpability or bad faith on the part of the State.” 2007 UT 49, ¶ 46. So
it rejected Tiedemann’s federal due process claim. But the court
accepted his invitation to establish a standard that could protect a
defendant even absent such a showing. In articulating such a
standard, the Tiedemann court cited rule 16 of our criminal rules,
noting that this rule “imposes broad obligations on prosecutors to
produce” evidence material to a defense “or make it available to a
defendant.” Id. ¶ 40. Citing prior cases interpreting this rule,
Tiedemann held that “‘[t]he prosecutor’s good faith should not have
. . . any impact on the trial court’s determination of whether the
prosecutor had violated his discovery duties.’” Id. (quoting State v.
Knight, 734 P.2d 913, 918 n.5 (Utah 1987)). And, in further reliance on
our rule 16 precedents, the Tiedemann majority listed factors of
relevance to the determination whether the State is in violation of its
duties under the rule, including “the culpability of the prosecutor”
and the impact of the violation on the defense (or likely “prejudice”
to the outcome). Id. ¶ 41 (quoting State v. Kallin, 877 P.2d 128, 143
(Utah 1994)).
    ¶ 67 The holding in Tiedemann was expressly tied to some degree
to rule 16. The majority stated that “[o]ur approach under rule 16
should govern the destruction of evidence,” holding that “the
culpability or bad faith of the state should be only one consideration,
not a bright line test.” Id. Elsewhere, the Tiedemann court also
attributed its standard to the Due Process Clause of our Utah
Constitution. Id. ¶ 44 (citing UTAH CONST. art. I, § 7). But the
authorities it cited were tied to a large extent to standards like that
set forth in our criminal rule 16.84 Even the Vermont case from which



discoverable under Utah law” under rule 16 of the Utah Rules of
Criminal Procedure).
   83Brief for Tiedemann at 46–47 (requesting that the court “not
now require . . . a showing [of bad faith] under a due process
analysis for the state constitution,” and urging the court to instead
consider other factors, including “the degree of prejudice to the
defendant”).
   84See Thorne v. Dep’t of Pub. Safety, 774 P.2d 1326, 1330 & n.8
(Alaska 1989); Hammond v. State, 569 A.2d 81, 88 (Del. 1989); State v.
                                                        (Continued)
                                 32
                          Cite as: 2017 UT 22
    A.C.J. Lee, concurring in part and concurring in the judgment
Tiedemann drew its standard, State v. Delisle, 648 A.2d 632 (Vt. 1994),
is along these lines. The Delisle decision is admittedly based on the
Vermont Constitution. But the holding in Delisle is ultimately based
not on a general right to due process but on that state constitution’s
guarantee of a right of a criminal defendant “‘to call for evidence in
his favor.’” See Delisle, 648 A.2d at 642 (quoting VT. CONST. ch. 1, art.
10). In light of that right, the Delisle court found a duty of the
government to preserve evidence, and held that dismissal may be
appropriate depending on the importance of the evidence in
question and the strength of other evidence of guilt. Id. at 642–43.
    ¶ 68 I would interpret Tiedemann as resting on our inherent
power to regulate practice and procedure in criminal litigation in our
courts as reflected in our criminal rule 16 and the extensive
authorities cited above. In so doing, I would acknowledge the fact
that Tiedemann purported to state a requirement of state due process.
And I would leave open the possibility that our Utah Due Process
Clause may have a role to play in establishing a “floor” or minimum
standard protecting an accused whose defense is interfered with by
the destruction of material evidence. But I would not “double down”
on the constitutional basis for the standard we have articulated in
this area. Instead, in the spirit of constitutional avoidance, and in
light of the settled, alternative grounds for our authority in this area,
I would root the Tiedemann standards in our inherent power and
rulemaking power under criminal rule 16.
                                     III
   ¶ 69 The proposed reformation of Tiedemann is a simple one. I
would not alter any of the standards set forth in that opinion. I
would simply recast the legal basis for our holding, tying it to our
inherent power as reflected in rule 16. To do so, we need to say only
what the federal courts have long said under the counterpart federal
rule—that the government’s duty to disclose material evidence
encompasses a duty to preserve such evidence. See supra ¶ 62.
Tiedemann, as noted above, effectively did that. I would make that
more explicit here. And I would state this as the basis (going
forward) for the standards that we have articulated in this area.
   ¶ 70 This adjustment is subtle. But it is hardly without
consequence. The doctrine of constitutional avoidance wisely
counsels against resolving cases on constitutional grounds when a


Matafeo, 787 P.2d 671, 673 (Haw. 1990); State v. Osakalumi, 461 S.E.2d
504, 511 n.10 (W. Va. 1995).

                                   33
                           STATE v. DEJESUS
    A.C.J. Lee, concurring in part and concurring in the judgment
non-constitutional ground is available. See Nevares v. M.L.S., 2015 UT
34, ¶¶ 38–39, 345 P.3d 719. For good reasons. Our constitutional
decisions are set in relative stone: They place matters resolved by
them beyond the policy reach of this or other branches of
government, and they establish precedent that we ourselves may be
bound by under the doctrine of stare decisis. For these and other
sound reasons, our courts have long deemed constitutional grounds a
matter of last resort.
    ¶ 71 Our cases have stated this principle in the specific context of
the Due Process Clause. We have warned of the perils of treating this
provision as a “free-wheeling constitutional license for courts to
assure fairness on a case-by-case basis.” In re Discipline of Steffensen,
2016 UT 18, ¶ 7, 373 P.3d 186. We have indicated that “[w]e retain
discretionary license to assure fair procedure in the cases that
proceed through our justice system.” Id. But we have explained that
“our usual course for doing so is by promulgating rules of
procedure.” Id.; see also Ownbey v. Morgan, 256 U.S. 94, 110–11 (1921)
(“The due process clause does not impose upon the states a duty to
establish ideal systems for the administration of justice, with every
modern improvement and with provision against every possible
hardship that may befall.”).
    ¶ 72 This is a sound, practical reason for reformulating the
theoretical basis for the framework set forth in Tiedemann. 85 By
relocating the Tiedemann standard to rule 16 and our inherent power,
we avoid the entrenchment inherent in a constitutional decision.
And instead we tap into the process we have put in place for the
promulgation and amendment of the rules governing practice and
procedure in our courts.

_____________________________________________________________
   85 We could identify additional reasons—in the premises for the
interpretive methodology of originalism, for example. In re K.A.S.,
2016 UT 55, ¶ 46 (Lee, J., dissenting) (advocating an originalist basis
for our interpretation of the Utah Due Process Clause—a
“historically driven test ‘measured by reference to “traditional
notions of fair play and substantial justice”’”—while noting that our
“usual course” for assuring “fair procedure” is to promulgate “rules
of procedure”). But we need not do so to decide this case. We can
save for another day the question whether there may also be a
constitutional basis for the standards in Tiedemann—a minimum
constitutional guarantee in this area. I would take that approach
here.

                                   34
                          Cite as: 2017 UT 22
    A.C.J. Lee, concurring in part and concurring in the judgment
   ¶ 73 That seemingly minor adjustment is a significant one. Our
rules process is set up in a manner that facilitates both ready
decision-making and wide-ranging input from the bar. Through our
advisory committees and public comment process, we receive input
on proposed amendments from a wide range of interested parties.
And through the rules process, we can make ready adjustments to
our rules on the fly—as soon as we are convinced of the need to
make a change.
     ¶ 74 None of this holds in the context of the decisions we make in
the exercise of our appellate jurisdiction. When we exercise that
power we maintain a passive posture. We maintain neither “FORCE
nor WILL, but merely judgment.” THE FEDERALIST No. 78 (Alexander
Hamilton). We “can take no active resolution whatever,” id., in that
we do not set our own agenda, but must await a judicial case that
presents a live, disputed issue before we have the authority to tackle
it. That is as it should be in the exercise of our appellate jurisdiction.
When we endeavor to set rules to assure fair procedure in our courts,
however, we need greater flexibility.
    ¶ 75 This case illustrates the point. Because the “touchstone” of
the Tiedemann standard is “fundamental fairness,” the court goes out
of its way to emphasize that the standards we set forth in that case
are not the be-all-end-all of the matter. Supra ¶ 46 n.67. It notes, in
particular, that we may yet find new “less drastic” remedies than the
one identified in Tiedemann. Id. And presumably the court is opening
the door to the possibility of further adjustments to the Tiedemann
standard on other points. I assume that’s the point of reiterating a
“touchstone” as broad as “fundamental fairness.”
    ¶ 76 I’m all for fundamental fairness. But if that is our goal, we
should root our power in a ground that is better suited to vindicating
it. When we make rules of practice and procedure we need to be able
to set our own agenda. We need the flexibility to make adjustments
to our law as we see fit and as new policies and procedures come to
our attention. Yet that highlights a defect in the majority’s approach.
The constitution is not a charter for the promulgation of ever-
evolving standards of practice. Its premise is the opposite—of the
need for the establishment of “certain limits not to be transcended”
and “designed to be permanent.” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 176 (1803).
    ¶ 77 We distort the constitution when we press it into the sort of
service for which our rules process is designed. I would avoid that
distortion here. I would do so through the doctrine of constitutional
avoidance—by reconceptualizing the legal foundation of Tiedemann
while still retaining its doctrinal elements.
                                   35
                            STATE v. DEJESUS
    A.C.J. Lee, concurring in part and concurring in the judgment
                                     IV
    ¶ 78 I see no barrier to my approach in any of the majority’s
objections. First, there is nothing “novel” about resolving a case on
non-constitutional grounds when a constitutional decision is
unnecessary. See supra ¶ 33 (criticizing my approach as somehow
“novel”). And that is all that I am proposing. My point is not that
“we should avoid procedural due process questions ‘properly
presented by the record’ because we have inherent authority to make
rules of procedure.” Supra ¶ 33 (emphasis added). It is that we already
have an applicable rule of procedure (rule 16) that can stand as a
basis for our articulation of standards regulating the spoliation of
evidence by the prosecution. Because Tiedemann can be understood
to be rooted in our interpretation of rule 16 (and the exercise of the
inherent power recognized in that rule), we need not conclude that
the Due Process Clause requires the standards we articulated in
Tiedemann.
    ¶ 79 I recognize that the Tiedemann opinion purported to
“plant[]” its “test in constitutional soil.” Supra ¶ 32. But it also cited
rule 16, as have the courts in other jurisdictions that have adopted
similar tests. And that fact renders this a straightforward application
of the doctrine of constitutional avoidance: Because we have a rule of
procedure that regulates spoliation of evidence and reflects our
inherent power in this field, we can easily deem the standards set
forth in Tiedemann a reflection of our inherent power in this field—
without deciding whether the Due Process Clause demands the
same standard. Thus, we can construe Tiedemann as declaring that
this court has satisfied the Due Process Clause by promulgating rule
16. We need not deem Tiedemann to establish the rule 16 standard as
the constitutional floor under the Due Process Clause.
    ¶ 80 Second, the court is wrong to insist that my approach only
avoids “certain constitutional issues” while giving rise to other “new
constitutional issues,” such as those implicated in a constitutional
challenge to the application of rule 16. Supra ¶ 33 n.48. The tradeoff
identified by the majority is illusory. At most, the court is observing
that my approach leaves open the possibility that a court’s application
of a standard rooted in rule 16 “could be subject to constitutional
challenge.” Supra ¶ 33 n.48. Yet the majority’s approach makes
constitutional analysis not just possible but required; if the Tiedemann
standard is rooted in due process, then a court is engaged in
constitutional decision-making in every case in which there is an
allegation of prosecutorial spoliation of evidence.
   ¶ 81 It is no answer to assert that a rules-based approach “would
be a poor substitute for the protections, including more robust
                                   36
                         Cite as: 2017 UT 22
   A.C.J. Lee, concurring in part and concurring in the judgment
appellate review, that our interpretation of the due process clause
affords criminal defendants,” 86 or that a due process conception of
Tiedemann is necessary to preserve “this court’s previous conclusion
that government loss or destruction of exculpatory evidence directly
implicates due process.” Supra ¶ 35. The majority’s critiques along
these lines are circular. They assume that the Tiedemann standard is
in fact required by the terms of the Due Process Clause. That is the
question that I would avoid here. I see nothing in the Tiedemann
opinion that supports the conclusion that the constitutional
guarantee of “due process of law” was understood at the time of the
framing of the constitution to guarantee the standards announced in
that opinion. Tiedemann, in fact, professed a prerogative of making
state constitutional law on the basis of “sister state law” and “policy
arguments.” 2007 UT 49, ¶ 37. And it repudiated the originalist
approach to constitutional interpretation announced in some of this
court’s decisions. See id. (noting the originalist approach to
constitutional interpretation but deeming it only “persuasive in
some cases” and not required). Those are reasons alone to question
the constitutional foundation of the Tiedemann standard. Yet we need
not reach that issue here. We can decide this case by recognizing
only a non-constitutional basis for the Tiedemann approach.
    ¶ 82 Neither Tiedemann nor the briefing presented in this case
tells us anything of relevance to whether the standard we apply
today is a “suitable floor concerning the destruction of evidence.”
Supra ¶ 32 n.45. That question, in my view, turns entirely on material
not yet examined by this court—on whether the guarantee of “due
process of law” would have been understood in 1896 to encompass
the protections we recognized in Tiedemann. The majority offers no
historical or textual support for its conclusion, and without it I
cannot see how the court can insist that Tiedemann is a “suitable
floor,” much less that it is the protection guaranteed by the founders
of this state. I would reserve that analysis for a different case in

_____________________________________________________________
   86 I have no problem with the court’s aspiration for more robust
appellate review in cases involving allegations of prosecutorial
spoliation of evidence. See supra ¶ 35. But we can achieve that
outcome without attributing our preferences to the dictates of the
Utah Constitution. We can provide for more searching appellate
review by rule. And on this and all points of policy, I far prefer the
rulemaking route to a decision to open the door to “reinterpreting”
the constitution each time we wish to add to the protections
prescribed in prior cases.

                                  37
                          STATE v. DEJESUS
   A.C.J. Lee, concurring in part and concurring in the judgment
which we have briefing and argument of relevance to this inquiry.
And I would conclude that Tiedemann simply dictates that rule 16
does not fall below the floor of the Due Process Clause, whatever that
floor may ultimately be.




                                 38
