Trombetta Motions and Spoliation of Evidence in California

What is a “Trombetta Motion” in California law?

California criminal defense attorney Neil Shouse, explains how a Trombetta Motion is used in California criminal cases, to dismiss a charge or a case, after evidence is lost by police. A “Trombetta Motion”, which is sometimes known as a “Trombetta-Youngblood Motion”, or abbreviated as a “T-Motion” is filed by a criminal defense attorney during legal proceedings, when evidence against a defendant is lost by the police department. Evidence which is exculpatory, that is evidence which could prove a defendant’s innocence, is even more important to be preserved by the police, and thus would be an even more effective basis for a Trombetta Motion. Trombetta Motions are made before or during trial, and if the judge grants the motion, then the charges could be completely dismissed. However the judge may instead choose to dismiss only one or two of the charges, and keep the others, and the judge may also choose to simply exclude certain evidence, but not dismiss any charges. Either way, if a Trombetta Motion is granted by the judge, then it’s usually a big win for a client facing criminal charges. A judge will weigh two factors when deciding whether to grant a Trombetta Motion. Firstly a judge will look at how important the evidence was to the prosecutions case, or in other words, how likely it would be that the evidence could prove or disprove a defendant’s innocence or guilt. Secondly, the judge will attempt to determine whether or not the police acted in bad faith. If police were judged to have thrown away the evidence on purpose, then the judge will likely grant the Trombetta Motion. An example of bad faith by the police department that could lead to a Trombetta Motion being granted, is DNA evidence that was collected at the scene of a crime, and could possibly prove who committed the crime, but the police lost or destroyed the evidence before it could be tested. An example of lost evidence which may or may not lead to a successful Trombetta Motion, would be evidence lost in a fire at a crime lab. Since the evidence was lost in an accidental fire, the judge may rule that the police did not act in bad faith. However the evidence still could have proven the defendant’s innocence, so it’s still unfair to the person on trial. Thus the judge would have a difficult decision to make, tasked with deciding whether or not to grant the Trombetta Motion and dismiss charges. More info at https://www.shouselaw.com/trombetta-motions or call (888) 327-4652 for a free consultation. If you or a loved one is charged with a crime we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.


A Trombetta motion (“T-motion”) is a legal motion that a criminal defense attorney will file with the court when:

  1. evidence was gathered in a case that was (or might be) helpful to the defendant, and
  2. the evidence was destroyed or mishandled by the police or prosecutor.

In the motion, a defense lawyer asks the judge to dismiss a case, or reduce charges, because evidence helpful to the defendant was tampered with or destroyed.

This is sometimes referred to as a Trombetta-Youngblood motion.

Examples of when a lawyer might file this document include:

  • after John was arrested for the continuous sexual abuse of a child (in violation of PC 288.5), his lawyer finds that the semen samples collected could not be tested because they were stored wrong.
  • Beth gives the police her prescription for Xanax, after being pulled over for suspicion of DUI, but the police later throw it out.
  • after Leslie if charged for robbery (per PC 211), her attorney discovers that the police lost fingerprints taken from the scene of the crime (that differed from those of her client).

Note that the mishandling of evidence, for which the motion addresses, is a violation of a defendant's Constitutional right to due process.

Defendants can file a Trombetta motion in basically any type of criminal case, and they can be used to fight charges of a misdemeanor, a felony, or a wobbler.

A judge will either grant or deny a defendant's motion. And, he will make this decision by following a two-step process that considers:

  1. how favorable the missing evidence was to the defendant, and
  2. if the government acted in bad faith.

Spoliation” refers to when a person destroys or conceals evidence. Per California Penal Code 135 PC, this destruction and concealment of evidence is a crime.

A violation of Penal Code 135 is charged as a misdemeanor. The crime is punishable by:

  • imprisonment in the county jail for up to six months, and/or
  • a maximum fine of $1,000.

Our California criminal defense attorneys will highlight the following in this article:

shredded evidence
In a T-motion, a defense lawyer asks the judge to dismiss a case, or reduce charges, because evidence helpful to the defendant was tampered with or destroyed.

1. What is the legal definition of a Trombetta-Youngblood motion?

A T-motion is a legal motion that a criminal defense attorney will file with the court when:

  1. evidence was gathered in a case that was helpful to the defendant, and
  2. the evidence was destroyed or mishandled.

In the motion, a defense lawyer asks the judge to dismiss a case, or reduce charges, because evidence helpful to the defendant was tampered with or destroyed.

A T-motion is sometimes referred to as a Trombetta-Youngblood motion.1

Note that the mishandling of evidence, because of which the motion is filed, is a violation of a defendant's Constitutional right to due process.

A Trombetta motion can be filed in any type of criminal case, including one (for example) that involves such charges as:

2. How does a judge rule on a T-motion?

A judge will either grant or deny an accused's Trombetta motion. He will make this decision by following a two-step process that considers:

  1. how favorable the missing evidence was to the defendant, and
  2. if the government acted in bad faith.

2.1 Was the missing evidence favorable to the defendant?

The first step in a judge analyzing a T-motion is for him to ask how exculpatory or favorable the missing evidence was to the defendant.

A judge will likely grant a motion if he finds that the evidence that was destroyed or tampered with was advantageous to the accused.

Please note that “exculpatory” evidence is evidence that clearly shows a party's innocence. If this evidence gets destroyed, a judge will typically grant the motion without an exception.

Favorable” evidence means items that help the accused support his defense. If this evidence gets lost or mishandled, judges are likely to grant a Trombetta motion.

In any event, the exculpatory or favorable evidence at issue must:

  • have held this value before the evidence was lost or destroyed, and
  • be of such a type that an accused would not be able to get similar evidence by any other efforts.

2.2. Did the government act in bad faith?

If a judge finds that the missing evidence was not favorable, then he can still grant the motion if he determines that the government acted in bad faith.

Bad faith” means that the government intentionally destroyed or mishandled evidence.

Note that the negligent handling of evidence will not rise to the level of bad faith. This rule also applies to the situation where evidence was lost or mishandled by the government's accident.

So, for example, consider a person that was arrested for the rape of his ex-girlfriend. Following the incident, a semen sample was taken from the woman. But the sample, through an accident at the lab, was not preserved correctly. As a result, the sample could not get tested. This scenario would not be considered “bad faith.” This is because the government did not intentionally damage the semen sample. It was only rendered untestable because of an accident.

burning paper evidence
Per California Penal Code 135 PC, this destruction and concealment of evidence is a crime.

3. What is the spoliation of evidence and Penal Code 135?

Spoliation” refers to when a person destroys or conceals evidence. Per California Penal Code 135 PC, this destruction and concealment of evidence is a crime.

Two conditions must be met in order for a defendant to be guilty under PC 135. These are:

  1. the accused knew that the evidence was going to be in fact used as evidence, and
  2. he intended to destroy or conceal the evidence.2

A person can be guilty of PC 135 by destroying or concealing pretty much any kind of evidence--including digital images and video recordings.3

Please also note that a defendant must have been successful in the spoliation of evidence (at least to some extent) in order to be convicted of this crime.

4. What are the penalties if a person destroys or conceals evidence, under Penal Code 135?

A violation of Penal Code 135 is charged as a misdemeanor.4 The crime is punishable by:

  • imprisonment in the county jail for up to six months, and/or
  • a maximum fine of $1,000.5

Note that in lieu of jail time, a judge may award a defendant with misdemeanor (or summary) probation.

Have you been charged with a crime in California and favorable evidence to your defense was mishandled or destroyed? Call us for help…

california criminal defense attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know has been charged with an offense and favorable evidence to your defense has been tampered with, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.


Legal References:

  1. A “Trombetta-Youngblood” motion gets its name from a real defendant, Larry Youngblood. The Supreme Court found Mr. Youngblood innocent in 1988 since vital DNA evidence in the case could not be tested. See Arizona v. Youngblood (1988), 488 U.S. 51. See also, California v. Trombetta (1984), 467 U.S. 479.

  2. California Penal Code 135 PC.

  3. People v. Fields, (1980) 105 Cal.App.3d 341.

  4. California Penal Code 135 PC.

  5. California Penal Code 19 PC.

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