The purpose of this note is to identify uncertainties in the future application of the Wright rule and to predict their probable resolution. Analysis of Wright and the cases on which it relies leads to the conclusion that failure to use the notice-petition procedure before disposition or testing of evidence will result in sanctions only if the defense can show that evidence destroyed, or chemically changed in testing, was potentially material, and only if the state is unable to show that the failure to preserve was reasonable. In addition, the Wright rule implies a defense right to observe or participate in potentially destructive tests and independently to test items which are not consumed or whose chemical properties are not changed by the tests. The choice of sanctions for violation of the rule will not be limited to dismissal and will depend on the nature of the evidence involved and its degree of materiality.
Criminal Procedure—Preservation of Due Process When Evidence Is Destroyed or Tested—State v. Wright, 87 Wn. 2d 783, 557 P.2d 1 (1976),
53 Wash. L. Rev.
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