dissenting:
In reversing the appellate and circuit courts, the majority asserts that the failure of the State to disclose exculpatory evidence before trial does not rise to the level of a constitutional deprivation. (166 Ill. 2d at 271.) This proposition is untenable, for it is in direct conflict with the holding of the United States Supreme Court. See Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.
As a general rule, the State’s failure to preserve potentially useful evidence constitutes a denial of due process where the defendant can demonstrate that the State acted in bad faith. (Arizona v. Youngblood (1988), 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333, 337.) No showing of bad faith is required, however, where the evidence is lost or destroyed after defense counsel has requested access to it. (See People v. Koutsakis (1993), 255 Ill. App. 3d 306, 312.) In such a case, the defense is also relieved of the burden of making an independent showing that the evidence had exculpatory value. The failure to preserve and disclose evidence once it has been requested by the defense violates due process without regard to the nature of the evidence. See People v. Sleboda (1988), 166 Ill. App. 3d 42, 53.
In the case before us, the defense made prompt and repeated efforts to obtain copies of the DCFS report on which his prosecution was predicated as well as copies of all DCFS records pertaining to that report. The defense requests were ignored, and the agency’s records were destroyed, even though they indicated that the report against C.J. was, in fact, "unfounded.” Because there is no way to reconstruct the contents of those records, there is no way, consistent with due process, that the proceedings against C.J. can be allowed to continue.
The majority attempts to minimize the prejudice to C.J. by arguing that there may have been no real significance to DCFS’s determination that the report was "unfounded.” Because the records were destroyed after the defense requested them, however, no further proof of their relevance was necessary. That they were the subject of a request made them presumptively material. To require the defense to make any further showing of materiality would place an impossible burden upon it. There is no way it can reasonably be expected to make arguments concerning materials that it has never seen and that no longer exist.
Wholly aside from this problem, the majority’s analysis is based on a fundamental and obvious misreading of the statute. Under the law, an "unfounded report” is a report for which it has been "determined after an investigation that no credible evidence of abuse or neglect exists.” (Ill. Rev. Stat. 1991, ch. 23, par. 2053.) As defined by DCFS,
" 'credible evidence of child abuse or neglect’ means that the available facts, when viewed in light of surrounding circumstances would cause a reasonable person to believe that a child was abused or neglected.” 89 Ill. Adm. Code ch. Ill, § 300.20 (1991).
The majority postulates that the Department’s decision that there was no abuse here could have resulted from nothing more than a determination that C.J. was not a parent or immediate family member, a person responsible for the child’s welfare, or an individual residing in the same home as the child, or a paramour of the child’s parent. What the majority overlooks is that a child can be "abused” -within the plain meaning of this statute even if the perpetrator is not among these specified groups. Abuse also occurs when a member of any of the groups listed allows physical injury, sexual abuse or torture to be inflicted on the child by a third party, such as C.J. Ill. Rev. Stat. 1991, ch. 23, par. 2053.
An equally fundamental error in the majority’s position is that it fails to adequately appreciate the mechanics of the DCFS’s investigatory process. If DCFS was simply concerned with C.J.’s relationship to the victim, the problem could have been detected by the department in its initial investigation as to whether the report was a "good faith indication of alleged child abuse.” (See Ill. Rev. Stat. 1991, ch. 23, par. 2057.4(3).) No further action would have been taken. No formal investigation would have been required, and there would have been no need to classify the report, as was done here, pursuant to section 7.12 of the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1991, ch. 23, par. 2057.12).
That the report in this case was determined to be unfounded presupposes that the Department concluded that this was a proper case for it to proceed to a formal investigation and that there was, in fact, no evidence of abuse. (Ill. Rev. Stat. 1991, ch. 23, par. 2058.1.) Given this, there is no basis for speculating that the Department’s decision was simply a matter of technical definitions. Rather, our assumption must be that when the Department decided to classify the report as unfounded following its investigation, it did so because it believed there was no merit to the substantive allegations against C.J. Considering that the report was the basis for the juvenile proceedings against C.J., the materiality of the Department’s records to his defense is manifest, as the appellate court correctly recognized. 257 Ill. App. 3d at 904.
Contrary to what the majority holds, the denial of C.J.’s due process rights cannot be excused on the grounds that DCFS’s destruction of the records is not attributable to the prosecution. The prosecution may not be accountable in court for the action of every State employee, but it should certainly be responsible for the destruction of evidence in child abuse cases where the destruction was carried out by the very agency charged by the General Assembly with responsibility for investigating child abuse reports. (See Ill. Rev. Stat. 1991, ch. 23, par. 2057.3.) In child abuse cases, DCFS’s investigative role is equivalent to that of any other law enforcement agency. It may work in tandem with such agencies and delegate its investigatory functions to them. (See Ill. Rev. Stat. 1991, ch. 23, par. 2057.3.) Considering that the loss or destruction of evidence by the police is deemed to be the action of the State (see Arizona v. Youngblood (1988), 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333, 337), there is no principled reason why the same should not be true when the culprit is DCFS.
Even if some valid distinction could be drawn, the majority’s analysis would still fail. My colleagues assume that due process is only implicated by actions for which the State’s Attorney is responsible. In taking this view, the majority confuses discovery requirements with constitutional obligations. It is true that under the criminal discovery rules promulgated by this court, the prosecution is only responsible for those within the scope of its authority. For constitutional purposes, however, a governmental employee’s relationship to the State’s Attorney’s office is irrelevant. Due process is not dependent on the government’s table of organization. If a defendant’s rights are violated, the deprivation is no less severe because the offending party worked for one agency rather than another. The effect on the defendant will be the same. All that is required for a due process violation is that there be State action, and DCFS, a department of the State of Illinois, is plainly a State actor. I therefore dissent.