9.33A PARTICULAR RIGHTS—FOURTEENETH AMENDMENT—

DUE PROCESS— DELIBERATE OR RECKLESS SUPPRESSION OF EVIDENCE

As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. The Fourteenth Amendment protects against a person being subjected to a criminal trial when favorable evidence has been deliberately or recklessly withheld from the prosecutor. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff's claim].

For the plaintiff to prevail on [his][her] claim of deliberate or reckless suppression of evidence, the plaintiff must prove the following elements by a preponderance of the evidence:

1.	The defendant [name] suppressed evidence that was favorable to the accused [plaintiff's name] from the prosecutor and the defense;

2.	The suppression harmed the accused [plaintiff's name]; and

3.	The defendant [name] acted with deliberate indifference to an accused's rights or for the truth in suppressing the evidence.

"Deliberate indifference" is the conscious or reckless disregard of the consequences of one's acts or omissions.

Comment

Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.9. See Mellen v. Winn, 900 F.3d 1085, 1096 (9th Cir. 2018); Tennison v. City & Cnty. of S.F., 570 F.3d 1078, 1087, 1089 (9th Cir. 2009); see also Carrillo v. Cnty. of L.A., 798 F.3d 1210, 1219 (9th Cir. 2015) ("The law in 1984 clearly established that police officers were bound to disclose material, exculpatory evidence.").

Added Jan. 2019