Full Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS In re PCG, Minor. PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED November 12, 2026 Petitioner-Appellant, 10:23 AM v No. 375738 Wayne Circuit Court PCG, Family Division LC No. 2024-001799-DL Respondent-Appellee. Before: GADOLA, C.J., and O’BRIEN and MARIANI, JJ. O’BRIEN, J. (dissenting). GG accused respondent of sexually assaulting her. As part of the investigation into this accusation, officers interviewed a variety of individuals. Those interviews were recorded and summarized in a police report. Unfortunately, the recordings of the interviews were not marked for retention, so they were destroyed as part of a routine purging by the department. The majority holds that petitioner’s inability to produce the destroyed recordings of the interviews constitutes a Brady violation because the interviewees made material and exculpatory statements in their interviews. But the majority can only say that the interviewees made material and exculpatory statements in their interviews because the police report summarizing those interviews states as much. Respondent has that police report, so he too knows of the material and exculpatory statements made by the interviewees in their interviews. Given this, respondent cannot establish that any material evidence was suppressed. To the extent the majority bases its findings of a Brady violation on the possibility that more exculpatory statements may have been made during the interviews that we do not know about because the recordings of the interviews were destroyed, that reasoning conflates respondent’s Brady claim with his Youngblood claim. As for respondent’s Youngblood claim, I would conclude that respondent has not met his burden of proving that the recordings were destroyed in bad faith, at least not as a matter of law. Starting with respondent’s Brady claim, to establish a Brady violation, respondent must show that (1) the state suppressed evidence; (2) that evidence was exculpatory; and (3) that -1- exculpatory evidence was material. People v Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014). Respondent contends that the destroyed recordings were exculpatory because the interviewees said that GG made statements that were inconsistent with statements that GG herself made to authorities. And respondent bases this contention on the police report’s summary of the interviews—the report states that the interviewees made the exculpatory statements identified by respondent. The majority recounts that “the report reflects a variety of inconsistencies in GG’s allegations over the course of her disclosures, including those related to when the assault occurred, who was present in the home at the time, to whom she disclosed the assault, and what respondent said and did before and during the assault.” Ante at 10. More precisely, the report reflects that certain interviewees said that GG told them things that were inconsistent with what GG told authorities. And those inconsistencies as identified by the majority related to (1) whether GG was sexually assaulted on August 15 or August 17; (2) whether GG’s mother was home when GG was sexually assaulted; (3) whether GG disclosed the sexual assault to her brother, her brother’s girlfriend, and respondent’s sister, or just to her brother and her brother’s girlfriend; and (4) the fact that GG mentioned in only her forensic interview that respondent talked about sexually assaulting other girls and choked GG while assaulting her. See ante pp 4-5 n 3. These minor inconsistencies in what other people remembered about the details that GG shared with them regarding the sexual assault fall far short of Brady’s materiality requirement.1 That aside, respondent is fully aware of the inconsistencies in GG’s allegations as identified by the majority. Despite not having access to the recordings of the interviews, respondent knows about the interviewee’s exculpatory statements because those statements were recorded in the police report. If this case proceeded to trial, respondent could readily take advantage of that evidence. Given this, I cannot agree with the majority that the destroyed recordings of the interviews were material for purposes of a Brady violation. Respondent is fully aware of the inconsistencies in GG’s allegations as identified by the majority, and respondent can bring those inconsistencies to the factfinder’s attention at a potential trial. The majority rejects this reasoning because the police report “does not purport to transcribe or otherwise capture the full content of the interviews, but instead contains only the interviewing officer’s own summary of them for purposes of the report.” Ante at 11. And the majority reasons that more exculpatory statements were likely made during the interviews that we do not know about because the recordings were destroyed, which provides further support for finding a Brady violation. See ante at 11-12. This reasoning, however, conflates respondent’s Brady claim with his Youngblood claim. We do not know—and cannot know—whether the interviewees made exculpatory statements other than those identified in the police report because the recordings of the interviews 1 The only alleged inconsistency that relates to the sexual assault itself is that GG mentioned something in her forensic interview that she did not mention in other disclosures. But forensic interviewers are professionally trained to interview minor victims of sexual assault. That GG gave the most detailed account of the assault when interviewed by such a professional is hardly surprising. -2- were destroyed. “Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.” California v Trombetta, 467 US 479, 486; 104 S Ct 2528; 81 L Ed 2d 413 (1984). So, rather than asking judges to determine whether a due-process violation occurred by divining what lost evidence would have shown, the United States Supreme Court adopted a test that considers the government’s role in losing the potentially useful evidence—“unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988).2 The majority agrees with the trial court that respondent established, as a matter of law, that the government acted in bad faith when it destroyed the recordings of the interviews in this case because (1) the failure of the officers to mark the recordings for retention (which led to the recordings being destroyed) violated department policy and (2) other recordings besides the pertinent interviews were marked for retention and thus preserved. I take no issue with the notion that the government’s failure to follow standard protocol for preserving evidence can be evidence that the government acted in bad faith, but I would hold that such evidence alone is not enough to establish bad faith. See, e.g, United States v Deaner, 1 F3d 192, 200 (CA 3, 1993) (“While a showing that the government did not follow standard procedure could provide some evidence of bad faith, we have not held that an improper procedure in and of itself implies bad faith. While it may permit such an inference, it does not syllogistically imply the presence of bad faith as a matter of deductive logic.”); United States v Garza, 435 F3d 73, 76 (CA 1, 2006) (“While Garza argues that it was not ‘normal’ procedure to destroy evidence in cases that were still open, there is no evidence that Quinn was motivated by malice or bad faith in authorizing the destruction.”); United States v Christian, 302 Fed Appx 85, 87 (CA 3, 2008) (“Absent some proof of ill-will, a failure to follow procedure is insufficient to support a finding of government bad faith.”). And I disagree with the majority that some recordings being preserved while others being destroyed establishes, as a matter of law, that the government’s failure to preserve all of the recordings was the result of bad faith. The majority concludes that the “selective retention of recordings” is evidence that “the destruction of the recordings at issue was not simply a matter of 2 Respondent did not advance a Trombetta claim, which considers not whether the government acted in bad faith when it destroyed evidence but whether the evidence that was destroyed “meet[s] the standard of constitutional materiality.” Trombetta, 467 US at 489. This standard is satisfied if the evidence “both possess[es] an exculpatory value that was apparent before the evidence was destroyed” and was “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. It is unclear why respondent chose to advance a Brady claim instead of a Trombetta claim because a Trombetta claim is considered one of the “two tests” that the United States Supreme Court “has established . . . to determine whether a government’s failure to preserve evidence amounts to a due process violation.” United States v Collins, 799 F3d 554, 569 (CA 6, 2015). -3- negligence,” ante at 16-17, but that is clearly a factual finding, not a legal conclusion.3 Indeed, I fail to see why the retention of some recordings but not others affirmatively disproves, as a matter of law, petitioner’s claim that the destruction of the recordings was the result of negligence. The majority seems to reason that the “selective retention of recordings” is affirmative evidence of the government’s bad faith because petitioner does not explain why some recordings were retained while others were not. See ante 15, 17. But this reasoning flips the burden of proof on its head— it is respondent’s burden to prove his Youngblood claim. See People v Dickinson, 321 Mich App 1, 16; 909 NW2d 24 (2017) (explaining that the defendant bears the burden of showing that the failure to preserve the evidence was done in bad faith). That petitioner does not explain why some recordings were preserved while others were destroyed does nothing to assist respondent in carrying that burden. This is not to say that the inference that the trial court and the majority draw from petitioner’s lack of an explanation for why some recordings were retained while others destroyed is necessarily impermissible. I simply believe that the inference requires fact-finding—the unexplained retention of some recordings and the destruction of others does not rebut the prosecution’s assertion that the recordings were destroyed by accident, nor does it conclusively establish that the officers acted in bad faith when they failed to preserve the recordings. Unfortunately, the trial court made this factual finding without the benefit of an evidentiary hearing. I would hold that this was error, the remedy for which is a remand of respondent’s Youngblood claim for an evidentiary hearing. At that hearing, the trial court can hear from the officers involved in this case and determine, as a factual matter, whether their failure to retain the evidence was the result of bad faith. But on the record as it now stands, I would not conclude that respondent has established, as a matter of law, that the government’s failure to retain the recordings was done in bad faith. For these reasons, I respectfully dissent. /s/ Colleen A. O’Brien 3 The language used by the trial court when rendering its decision reflects that it, too, understood itself to be making a factual finding in this respect. The court made credibility determinations about “the information presented” and concluded that there was “sufficient evidence” to find bad faith. -4-