Where there is no bad faith, the defendant has the burden of showing prejudice. Buchanan v. State, 119 Nev. 201, 220 (Nev. 2003). The defendant must show that “‘it could be reasonably anticipated that the evidence sought would be exculpatory and material to [the] defense.’” Id., see also Cook v. State, 114 Nev. 120, 125 (Nev. 1998). Further, the “materiality and potentially exculpatory character of lost or destroyed evidence must be determined on an ad hoc basis on the facts of each particular case”. Deere v. State, 100 Nev. 565, 566-67 (Nev. 1984).

In Cook, defendant was charged with three counts of sexual assault for the alleged rape of his former domestic partner. Cook, 114 Nev. 120. At the conclusion of his fourth trial, a jury found Cook guilty of one count of sexual assault. Cook, 114 Nev. 120. Following the investigation, the police subsequently lost the photos, reports, and sweater. Cook, 114 Nev. at 124-25.

Cook alleged that lost photographs of blood on the carpet would have proven that he did not violently attack the victim and drag her several feet across the carpeted floor; that the lost photos of the bruise on his arm deprived him of the opportunity to rebut or impeach the victim’s testimony that the bruise on his arm was caused by her act of slamming a door on his arm during her purported escape attempt; that his lost initial statement to police, given by Cook before he was aware of any of the victim’s specific allegations, could have been used to corroborate Cook’s trial testimony; the victim’s lost initial statement to the police: Cook argues that the victim’s initial statement may have been inconsistent with portions of her trial testimony as evidenced by the fact that her initial statement led police to charge Cook with only one count of fellatio, and not two; and Cook argues that the sweater was both material and exculpatory evidence because it would have supported his testimony because no blood was on it and it would have demonstrated she was not wearing the sweater when she says she was, when her nose got bloody. Cook, 114 Nev. 124-25.

The court ruled that Cook has made the requisite showing of prejudice by demonstrating that the lost items of evidentiary value could have been reasonably anticipated to be both material and exculpatory. Cook, 114 Nev. at 126. Due to the State’s negligent loss of evidence, Cook’s ability to defend himself was severely undermined. Cook, 114 Nev. at 126. Accordingly, the State’s failure to preserve such evidence violated Cook’s right of due process and mandates reversal of his conviction and sentence. Cook, 114 Nev. at 126.

In footnote number 6, the Cook Court noted, “[w]e do not suggest the Sparks Police Department had a duty to collect evidence. Rather, we base our holding that Cook’s defense was unduly prejudiced solely on the evidence that was gathered and then subsequently lost by the Sparks Police Department.” Cook, 114 Nev. at 126. The court then concluded that Cook has established prejudice by showing that the lost items of evidentiary value could have been reasonably anticipated to be both exculpatory and material. Cook, 114 Nev. at 127.