TITLE ELEVEN — MISCELLANEOUS RULES
Rule 1104. Inadequate Police Investigation Evidence
Admissibility. Evidence that certain tests were not conducted, that certain police procedures were not followed, or that certain information known to the police about another suspect was not investigated, in circumstances in which it was reasonable to expect that the police should have conducted such tests, followed such procedures, or investigated such information, is admissible.
Jury Instruction. If evidence under Rule 1104(1) is admitted, it is within the judge’s discretion whether to give a specific instruction to the jury. In the absence of an instruction, counsel may argue the issue, provided the argument is based on the evidence in the record and any permissible inferences taken from that evidence. In a bench trial the court shall consider the evidence as the fact finder and shall state in its findings the weight it gives to it.
Purpose. Evidence admitted under this rule bears upon the weight of the State’s evidence and upon whether the State has proved its case beyond a reasonable doubt. It does not itself establish any fact about the offense charged, and the defendant bears no burden by reason of offering it.
Matters Within This Rule. Evidence within Rule 1104(1) includes, where it was reasonable to expect the step to be taken:
the failure to obtain, capture, or preserve an in-game record, log, or system entry relating to the offense;
the failure to obtain, capture, or preserve a recording or log of a dispatch or radio transmission, including a transmission clearing a search warrant under Rid. R. Crim. P. 44(11);
the failure to request, capture, or preserve messages, direct messages, or channel logs known to bear upon the offense;
the failure to identify or interview a witness known to the investigating officers, or to obtain the username of a person present;
the failure to make the return of a warrant to the issuing court, or to attach and swear the inventory which 6 R. Stat. § 131.016 requires;
the failure to investigate information known to the police concerning another suspect; and
the failure to follow a procedure prescribed by law, by an agency’s own directive, or by these rules.
Foundation. The proponent shall establish, by cross-examination or by other evidence, that the step was available; that the investigating officers knew or should have known of it; and that it was reasonable to expect the step to be taken in the circumstances. Expert testimony is not required.
The State’s Response. The State may offer evidence explaining why a step was not taken, including evidence of the resources available, the exigency of the circumstances, the lawful limits upon the step, and the results which the step would not have produced. The State shall not respond by asserting facts outside the record.
Relation to Spoliation. Where the failure alleged is the loss or destruction of evidence which the State had a duty to preserve, Rule 1101 applies in addition to this rule, and the remedies of Rule 1101(7) are available.