Clarifying the Bailey Balancing Test: Negligent Evidence Destruction without Gross Negligence Is Insufficient for Dismissal in Vermont

Introduction

State v. Eric M. Champagne, decided by the Vermont Supreme Court on 8 August 2025, revisits the constitutional consequences of lost or destroyed evidence in criminal prosecutions. The defendant, Eric M. Champagne, was convicted by a jury of attempted assault and robbery and resisting arrest after physical items central to the allegations—a knife, latex gloves, and a black shirt—were mistakenly destroyed during a police evidence audit. Champagne moved to dismiss, arguing that the loss of this potentially exculpatory evidence violated his due-process rights under Chapter I, Article 10 of the Vermont Constitution. The trial court denied dismissal; Champagne renewed the motion after conviction and, on appeal, challenged the court’s application of the three-factor balancing test first articulated in State v. Bailey, 144 Vt. 86 (1984).

The Supreme Court affirmed, establishing a detailed clarification of what constitutes ordinary negligence versus gross negligence or bad faith for purposes of the Bailey test and confirming that dismissal remains an extraordinary remedy where other evidence of guilt and mitigating substitutes (photographs, stipulations, witness cross-examination) are available.

Summary of the Judgment

The Court accepted that Champagne met the initial burden of showing a “reasonable possibility” that the lost items might have been favorable.
Applying the Bailey three-factor test—(1) degree of State culpability, (2) importance of the evidence, and (3) strength of the remaining evidence— the Court concluded:
- The officer’s actions were negligent, but not grossly negligent or in bad faith.
- The importance of the physical items was mitigated by photographs, a factual stipulation, and vigorous cross-examination.
- The State’s remaining evidence, including eyewitness identifications, vehicle-stop details, and defendant’s flight, was independently sufficient to uphold the convictions.
Consequently, dismissal of the charges was unwarranted; the convictions were affirmed.

Analysis

1. Precedents Cited and Their Influence

State v. Bailey, 144 Vt. 86 (1984)
Originated the Vermont constitutional standard for lost evidence: reasonable possibility of favorability plus the three-factor balancing test. Champagne re-affirms Bailey’s vitality and clarifies its application.
State v. Gibney, 2003 VT 26
Confirmed the State’s duty to disclose exculpatory or impeachment evidence. The Court relies on Gibney to frame the disclosure obligation but distinguishes between failure to disclose and negligent loss.
Kennery v. State, 2011 VT 121
Defined gross negligence as conduct demonstrating a failure to exercise “even a slight degree of care.” The Court borrowed this definition to assess the police officer’s conduct.
State v. Gentes, 2013 VT 14 (mem.)
Deemed simple mislabeling and misfiling to be mere negligence. Champagne analogizes the mistaken destruction to Gentes, finding no gross negligence.
State v. Devine, 168 Vt. 566 (1998) & State v. Cameron, 2016 VT 134
Demonstrated that dismissal is unwarranted when other routes exist to present comparable evidence or challenge the State’s proof.
State v. Bellanger, 2018 VT 13
Noted abrogation of part of Bailey but left the lost-evidence framework intact.

2. Legal Reasoning of the Court

The Court’s analysis proceeds in two stages: a threshold determination followed by the Bailey balancing.

Threshold Showing. The defendant satisfied the modest requirement of a “reasonable possibility” that the knife, gloves, or shirt could aid the defense. The burden then shifted to the State to survive the balancing test.
The Bailey Factors.
- State Culpability: The Court emphasized that the officer made some effort to verify relevance, and because this was the department’s first error and no disposal protocol existed, the conduct was negligent but not grossly negligent or in bad faith.
- Importance of the Evidence: While the items were undeniably relevant, their evidentiary utility was blunted by:
  - High-resolution photographs logged at seizure;
  - A joint stipulation presented to the jury (e.g., “knife handle had purple and black”);
  - Effective cross-examination using the above substitutes.
- Other Evidence of Guilt: Independent testimony placed two men of differing heights at the crime, identified the getaway car, and linked Champagne to the vehicle and a flight attempt. Such evidence was deemed strong enough even excluding any benefit the destroyed items could offer.

3. Potential Impact

The decision crystallizes several practical and doctrinal points likely to influence Vermont criminal litigation:

Clarifies Gross vs. Simple Negligence. Routine or first-time protocol failures, absent conscious disregard, will rarely cross the gross-negligence threshold.
Photographs & Stipulations Suffice. Where reliable photographic documentation exists and parties can stipulate to characteristics, physical destruction will less often yield dismissal.
Strategic Defense Planning. Defense counsel must marshal alternative evidence (e.g., photos, chain-of-custody gaps) early; outright dismissal may be elusive unless bad faith is provable.
Police Evidence-Handling Protocols. Departments are on notice that implementing clear disposal procedures is prudent—but the absence of such procedures alone does not necessarily constitute gross negligence.

Complex Concepts Simplified

Bailey Balancing Test: A Vermont-specific, three-part analysis used when the State loses or destroys possible exculpatory evidence. Courts weigh (1) State fault, (2) value of the evidence, and (3) remaining proof of guilt.
Gross Negligence: More than careless error; it reflects an almost total disregard for the duty to preserve evidence—“failure to exercise even slight care.”
Bad Faith: Intentional or willful misconduct by the State aimed at disadvantaging the defendant.
Reasonable Possibility Standard: The defendant need only show it is possible (not probable) the lost evidence would favor the defense. This is easier to satisfy than “reasonable probability” (Brady) but still must precede the balancing test.

Conclusion

State v. Champagne provides a definitive modern reading of Vermont’s lost-evidence jurisprudence. The Court underscores that while defendants enjoy constitutional protection against unfair prejudice from missing evidence, dismissal will occur only when (i) State conduct is egregious (bad faith or gross negligence), (ii) the lost items are central and irreplaceable, and (iii) the remaining case is weak. By upholding the convictions, the Court signals that photographs, stipulations, and robust cross-examination can collectively cure prejudice arising from negligent destruction. Future litigants must therefore focus on proving either State malfeasance or the irreplaceable nature of the evidence if they hope to secure the “extreme remedy” of dismissal.