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A defendant is entitled to a Willits instruction when the State “loses or destroys evidence that would have been useful to the defense.” ¶ 7 (2014).

Under Willits, “if the state fails to preserve evidence that is potentially exonerating, the accused might be entitled to an instruction informing the jury that it may draw an adverse inference from the state’s action.” ¶ 1 (2014).

“To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice.” ¶ 8 (2014) (cleaned up).

This standard of review “places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence.” (once defendant has shown error, burden shifts to state to prove error harmless); (state has burden of convincing appellate court that “guilty verdict actually rendered in this trial was surely unattributable to the error” (

¶ 8 (2014) (cleaned up).

¶8 If the State “fails to preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused and prejudice results, the trial court must provide the jury a Willits instruction.” ¶ 1 (2020); see also Willits, 96 Ariz. at 191; ¶ 7 (2014).

¶ 7 (2014) (citation omitted).

¶ 9 (2014) (“To show that evidence had a ‘tendency to exonerate,’ the defendant must do more than simply speculate about how the evidence might have been helpful.”).

42 (Lost, Destroyed, or Unpreserved Evidence) (4th ed. 2016); ¶ 15 (2014).

¶ 9 (2014) ("To show that evidence had a 'tendency to exonerate,' the defendant must do more than simply speculate about how the evidence might have been helpful.").

¶ 2, 152 ¶ 19 (2014) (explaining that a defendant was prejudiced by destruction of recordings that could have been used to impeach the State’s only witness in a child 22 STATE V. SMITH Opinion of the Court molestati

42 (4th ed. 2016); ¶ 1 (2014); Willits, 96 Ariz. at 191.

“[A] defendant is entitled to an adverse-inference instruction when the state loses or destroys evidence that would have been useful to the defense, even if that destruction is innocent.” ¶ 2, 150 ¶ 7 (2014) (police detective interview recordings destroyed according to then-existing policy meant defendant was entitled to a Willits instruction).

¶17 vacated, supports his position that the trial court’s Rule 403 analysis was incorrect.

¶12 “We review rulings regarding a Willits instruction for [an] abuse of discretion.” ¶ 7 (2014).