Arkansas Supreme Court reverses dismissal after police body‑camera footage was overwritten

The Arkansas Supreme Court on Oct. 24 reversed and remanded a Pulaski County circuit court’s dismissal of five felony charges against Lee Earnest Clarks, concluding the circuit court erred in shifting the burden of proof after law enforcement failed to preserve body‑worn and mobile video recordings.

Associate Justice Rhonda K. Wood, writing for the majority, said the governing legal standards require a defendant to prove either that destroyed evidence had an apparent exculpatory value before destruction and was not replaceable by reasonable means, or that the evidence was only potentially useful and the State destroyed it in bad faith. Wood wrote that the circuit court incorrectly placed the burden on the State and conflated routine, unintentional deletion with bad faith.

The case arose after Clarks was stopped for running a stop sign in Pulaski County and officers smelled marijuana. Officers searched the vehicle and recovered marijuana, methamphetamine, drug paraphernalia and, in a passenger’s purse, marijuana and a firearm. Clarks was charged as a habitual offender with simultaneous possession of a controlled substance while in possession of a firearm, possession of methamphetamine with intent to deliver, felon‑in‑possession of a firearm, possession of marijuana with intent to deliver and possession of drug paraphernalia.

Clarks filed a discovery motion that included a preservation request. The State later acknowledged it did not retain the arresting officers’ body‑worn camera footage and mobile video recordings because the Little Rock Police Department’s retention practice is to keep video for 60 days and then overwrite it if an assigned investigator has not retrieved it. The State’s filing conceded the video was overwritten unintentionally.

At a hearing, the arresting officer, Officer Jalen Salam, testified that he was wearing an active body camera during the stop and that Clarks admitted to having marijuana in the car and said the firearm did not belong to the female passenger. A passenger, Clarks’s brother, testified he did not hear Clarks make such an admission. The circuit court granted Clarks’s motion to dismiss all charges, characterizing the State’s position on burden as impermissibly shifting and concluding the State’s omissions amounted to bad faith.

The Supreme Court majority found two errors. First, the court reiterated the Trombetta standard: dismissal under due process is warranted when destroyed evidence (1) had an exculpatory value that was apparent before its destruction and (2) the defendant cannot obtain comparable evidence by reasonable means. Second, following Youngblood and subsequent decisions, the court said a defendant may alternatively prevail if the evidence was only potentially useful and the State acted in bad faith in destroying it. The majority emphasized that routine, unintentional adherence to a standard retention policy does not, by itself, establish bad faith.

Wood wrote, in part, that the circuit court “erred as a matter of law when it found that the unintentional deletion of the video, executed as part of the State’s routine data management, was done in bad faith.” The opinion noted that bad faith requires purposeful or intentionally improper conduct and that negligence or failure to preserve without evidence of official misconduct does not meet that standard.

Chief Justice John Dan Kemp dissented, arguing the State’s appeal should have been dismissed as an improper State appeal because, in his view, the issues involved the application of settled law to the specific facts rather than a legal question requiring statewide clarification. Kemp wrote that because the appeal turned on factual application, it did not present a question of law that warrants this court’s acceptance under Arkansas Rule of Appellate Procedure–Criminal 3(d).

The Supreme Court reversed the circuit court’s dismissal and remanded for further proceedings consistent with the opinion. The court did not specify the disposition of the underlying criminal case on remand; the practical effect is that the charges, which the circuit court had dismissed, are no longer dismissed as a matter of law pending further proceedings.

Background authorities the court relied on include Brady v. Maryland, California v. Trombetta, Arizona v. Youngblood and Illinois v. Fisher, plus Arkansas precedents such as Lee v. State and Wenzel v. State. The opinion also cites Arkansas Rule of Appellate Procedure–Criminal 3 for the State’s right to appeal.

The Supreme Court’s ruling clarifies that, under Arkansas law, routine data‑management practices that lead to unintentional overwriting of body‑camera footage do not automatically equal bad faith sufficient to require dismissal; defendants must meet the established Trombetta or Youngblood standards before dismissal is appropriate.