State v. DeJesus: Tiedemann does encompass a threshold reasonable probability requirement

“The due process clause of the Utah Constitution requires a defendant to first establish as a threshold matter a reasonable probability that the lost or destroyed evidence would have been exculpatory. By so doing, the defendant establishes that his or her due process rights have been violated. Once a defendant has made this threshold showing, the court must consider the two factors set forth in Tiedemann—the culpability of the State and the prejudice to the defendant—in order to both evaluate the seriousness of the violation and determine the necessary remedy.” State v. DeJesus, 2017 UT 22, ¶ 19.

In this case, DeJesus kicked a correctional officer during a fight with another inmate. Surveillance footage showed the kicks. The prison failed to make a copy of the recording and after 30 days it was irretrievably lost. DeJesus moved to dismiss the charge under State v. Tiedemann, claiming that the loss or destruction of the surveillance footage constituted a due process violation. The Utah Supreme Court concluded that DeJesus met her threshold burden. The Court then considered the second part of the test and found that the State should have done more to preserve the evidence and failure to do so prejudiced DeJesus. The appropriate remedy in this case was dismissal.