Evidence Preservation After a Police Custody Death

The 48-Hour Window

Evidence in a custody death case is volatile. Body-worn camera footage, cell surveillance video, booking records, and dispatch audio all sit on systems governed by routine retention policies. In some jurisdictions, standard retention is as short as 30 days. If no preservation duty or request applies, agencies may overwrite or purge this data under routine schedules — and once it's gone, it's gone.

The first 48 hours after notification are the most critical. Every day of delay increases the risk that critical evidence is lost — not necessarily through malice, though that happens too, but through the normal operation of institutional data management.

What a Spoliation Letter Does

A spoliation letter (also called a litigation hold notice) is a formal written demand that agencies involved in your loved one's detention and death preserve relevant evidence. It gives them written notice that litigation may be anticipated and identifies records to preserve. A duty to preserve relevant evidence can arise when litigation is reasonably foreseeable; the scope depends on the facts and applicable law.

The legal concept is straightforward: spoliation is the destruction, alteration, or failure to preserve evidence that is relevant to an active or reasonably foreseeable lawsuit. If an agency destroys evidence after receiving a litigation hold, a court may impose sanctions, including an adverse-inference instruction when the applicable legal standard is met.

Under Maryland's pattern jury instruction (MPJI-Cv 1:16), for example, if a party destroyed evidence with intent to conceal the truth, the jury must infer the evidence was unfavorable. In some jurisdictions, negligent destruction may support an unfavorable inference.

Who Gets the Letter

Send the spoliation letter to every agency that had any contact with your loved one during the incident:

• The arresting police department
• The jail or detention facility
• The county sheriff's department
• The medical examiner or coroner's office
• The hospital or medical facility that treated or pronounced death
• The local 911 dispatch center
• The emergency medical services (EMS) provider

Send each letter via certified mail with return receipt requested. Keep copies of everything.

What to Demand Preservation Of

The letter should specifically name each category of evidence:

Electronic recordings: Body-worn camera footage from all officers present. Dashcam footage from all responding vehicles. Cell-block, hallway, and booking area surveillance video. 911 audio recordings.

Dispatch and communications records: Computer-aided dispatch (CAD) sheets with timestamps showing when officers were dispatched, arrived, initiated force, and requested medical assistance. Radio communications logs. In-car computer (MDT) messages.

Physical records: Use-of-force reports filed by each involved officer. The police incident report. Booking photographs. Intake medical screening records. Cell-check logs documenting whether mandatory welfare checks were actually conducted. Medication administration logs. EMS run sheets.

Personnel records: Training records and prior use-of-force history for involved officers. Internal affairs complaints and outcomes.

The Physical Evidence Your Family Controls

While the spoliation letter addresses institutional records, the family may also have access to physical evidence:

• Clothing and personal effects. If the facility returns your loved one's clothing, seal it immediately in plastic bags without washing it. Bloodstains, chemical residue, and DNA evidence can be preserved for forensic analysis.
• Photographs of the body. Before any cosmetic work by the funeral home, have scale-referenced photographs taken of all injuries, bruising, taser marks, and restraint marks. These document the condition of the body independently of either autopsy report.
• Witness contact information. Other detainees, bystanders, or medical personnel who were present may have observations that contradict the official account. Document their names and contact information before they become unreachable.

What Happens If Evidence Is Destroyed

If you can prove that an agency destroyed evidence after receiving your preservation demand — or after it reasonably should have anticipated litigation — the consequences range from evidentiary sanctions to case-dispositive rulings:

• Adverse inference instructions to the jury
• Exclusion of the agency's version of events on disputed facts
• Monetary sanctions
• In extreme cases, default judgment on liability

Even without a spoliation letter, a court may find a duty to preserve relevant evidence once litigation is reasonably foreseeable. A death in custody can make litigation foreseeable, but whether it does depends on the circumstances. A formal letter documents the request and the agency's notice.

Templates and Next Steps

The After a Death in Police Custody guide includes fill-in-the-blank spoliation letter templates, records request language, and a tracking system for monitoring which agencies have responded and which records remain outstanding.