concurring in part and dissenting in part.
Drawing on its interpretation of Arizona precedent and accepting the reasoning of federal case law where compelling, the court today holds that fundamental fairness requires no more than a Willits instruction.1 See State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). Ultimately, the court applies the due process clause of the Arizona Constitution in the same manner as its federal counterpart. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). The majority does not, however, agree with the state’s position that the two clauses are coterminous. Instead, it reaffirms this court’s ultimate responsibility to interpret the meaning and application of the Arizona Constitution in light of our own reading of each clause.
Because I believe that this approach to state constitutional decision-making is correct, I concur in the constitutional process adopted by the majority and join in that portion of the opinion. Disagreeing with the lead opinion’s2 application of that process to Youngblood and with the conclusion the majority reached in both cases, I respectfully dissent from the following portions of the opinion.
A. Preclusion: State v. Youngblood
Stating that Youngblood failed to assert his due process claim under the Arizona Constitution until he had been through the entire appellate system and his case remanded to our court of appeals, the lead opinion argues that “Youngblood is precluded from relying upon the Arizona due process clause.”3 Both the premise and conclusion are flawed.
1. The Lead Opinion’s Position
The lead opinion’s discussion of the preclusion issue is both dictum—language unnecessary to the holding—and irrelevant to the issue before the court. Concluding that we are “not ... free” to decide the *509case on the issue of preclusion4—having neither granted review, ordered briefing, nor entertained argument of that issue— the lead opinion “turn[s] next to the merits” 5 and decides them. What, then, is the preceding discussion entitled “Preclusion”'1. It is no more than the author’s dissertation on the question of preclusion, uninformed by briefing6 or argument.
At the risk of compounding the error of a process that I believe is procedurally improper, I think it necessary to respond to the lead opinion’s dicta with some of my own. The reader wishing to quickly get to the only issue before the court and decided by it is advised to begin at Part B of this dissent.
2. The Issue was Raised
Youngblood did raise his due process claim; he also made the proper supporting argument. At every stage of the proceedings, from the trial court to this court, Youngblood has argued that the destruction of evidence violated principles of fundamental fairness, denied him a fair trial, and thus offended due process. Young-blood failed only to cite article 2, section 4 of the Arizona Constitution when arguing the requirement of fundamental fairness. Indeed, Youngblood’s original brief in the court of appeals cited neither the state nor federal constitution but spoke generally of due process.
Youngblood was not alone in this omission. The court of appeals’ original opinion in State v. Youngblood, 153 Ariz. 50, 734 P.2d 592 (Ct.App.1986), also did not specify which due process clause it applied and cited neither constitution, instead referring to both federal and state cases in arriving at its conclusion. This court has been guilty of similar imprecision. See, e.g., State v. Tucker, 157 Ariz. 433, 442-43, 759 P.2d 579, 588-89 (1988).7
Youngblood’s failure to cite the Arizona Constitution did not prejudice the state. Contrary to the lead opinion’s assumption, Youngblood did not hold back that issue. In a timely manner and at every step, he raised the due process issue, arguing that the destruction of evidence deprived him of a fair trial. When the United States Supreme Court held for the first time that bad faith was the sine qua non of a due process deprivation, Youngblood then asked the state court to follow the Arizona cases, such as Tucker, and hold that under the Arizona Constitution bad faith was only one of the tests of a fair trial. It is understandable that he had not done so before. Neither this court nor any other had previously been aware that bad faith was the only factor. In fact, this court previously abjured such subjective inquiries into the prosecutorial psyche in similar cases. See, e.g., Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984).
The view espoused today, therefore, is far more radical than the inarguable statement that “[o]ne should not be allowed to hold back a claim or issue and then use it only if one needs it.”8 Now, under what is evidently the lead opinion’s view, even though a litigant suffers no prejudice, constitutional rights may be destroyed simply because a lawyer had no greater prescience *510than the court of appeals or this court and failed to state which constitution he invoked in support of a timely claim raised in the exact words used in both constitutions. If such becomes the court’s holding, we witness the triumph of inconsequential form over critical substance. I do not—as the lead opinion implies—retreat from the principle that state issues must be raised and a record made. The issue was raised, and the point was argued. All that was omitted was a citation.
3. The Issue Could not be Waived
Even if the preclusion principle applied in this case, the lead opinion has overlooked a significant issue. Briefly acknowledging that there is no preclusion when fundamental error has occurred, the lead opinion fails to explain why that principle does not apply to this case. Indeed, if the state’s destruction of evidence denied Youngblood a fundamentally fair trial, the issue would not be precluded even if he had completely failed to raise the evidentiary question. See, e.g., State v. Dawson, 164 Ariz. 278, 283, 792 P.2d 741, 746 (1990); State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984); see also State v. Slemmer, 170 Ariz. 174, 177-78 & n. 8, 823 P.2d 41, 44-46 & n. 8 (1991). Thus, the reasoning is circuitous; if Youngblood was denied a fair trial, the error would always be fundamental and could not be precluded.9
Even if Youngblood had failed to raise the state due process claim, a finding of preclusion would be wrong as a matter of jurisprudential policy. Although it cites Yee v. Escondido, — U.S.-, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992),10 the lead opinion’s views on preclusion are far more extreme. In Yee, the Supreme Court held that courts have jurisdiction to consider a claim first raised on appeal. Yee, — U.S. at-, 112 S.Ct. at 1531; see also Dawson, 164 Ariz. at 283-86, 792 P.2d at 746-49. Accordingly, even if Youngblood had failed to raise the destruction of evidence claim in the trial court, the court of appeals had jurisdiction to consider that claim. A refusal to do so on direct review would have been prudential—and usually good policy—rather than jurisdictional in nature. As in the present case, when the court of appeals passes on such a claim—as well it might, considering the importance of the constitutional issue—the issue is fairly before this court. See, e.g., Dawson, 164 Ariz. at 283-86, 792 P.2d at 746-49; see also United States v. Williams, — U.S. -,---, 112 S.Ct. 1735, 1738-41, 118 L.Ed.2d 352 (1992).
Thus, the lead opinion, citing Yee, evidently concludes that the court of appeals had discretion to consider the issue but that, for lack of a single citation, the court of appeals abused its discretion by deciding the issue. This is a legally incorrect and gratuitous reprimand to the court of appeals. See Yee, — U.S. at---, 112 S.Ct. at 1531-32; cf. Riggins v. Nevada, — U.S. -, -, 112 S.Ct. 1810, 1824, 118 L.Ed.2d 479 (1992) (Thomas, J., dissenting).11 Youngblood squarely and timely raised the due process claim. Each court, including the court of appeals, considered his argument on the question of fundamental fairness. Even under Justice Thomas’ view, the issue was not waived or precluded.
So much for the “merits” of preclusion. I return to the process. Dicta is easy to define but sometimes hard to avoid. All of us are guilty of unnecessary statements. It is part of the common law process. But this goes much further. The preclusion discussion in the lead opinion is entirely dictum, recognized as such in the lead opinion, and completely irrelevant to the issues on which the case was decided. Further, the conclusions are reached without the benefit of briefing or argument by counsel. *511This court denied review of the issue, refused to hear argument on the issue, and therefore should not address it. I express my dissent from so improper a process and turn next to the only issue before us.
B. Loss of Evidence
Disregarding both the persuasive evidentiary and legal analysis of the court of appeals in Youngblood12 and the trial judge’s factual finding that the destroyed evidence “may have exonerated” Herrera-Rodriguez,13 the majority here adopts a bright line rule that no matter what evidence is lost or how significant its potential exculpatory value, due process is not violated unless the defendant can demonstrate that the loss has resulted from the state’s “bad faith.”14 This analysis, too, is significantly flawed.
1. Brady v. Maryland is Inapplicable
First, the court finds some support in cases such as Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where the remedy for suppressed evidence is retrial, not dismissal.15 This is true, but the Brady rule is not applicable to this case. When, as in Brady, the prosecution has withheld exculpatory evidence, a new trial, at which the evidence can be produced, is the appropriate remedy, “irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 104, 83 S.Ct. at 1197. As the majority says today, Brady “makes sense.” 16 Its application to this case, however, makes no sense. In this case, the evidence is not available for retrial because it was destroyed before testing. Retrial would leave us with the same issue: determining what remedy to invoke when the evidence has not just been withheld but destroyed.
2. Good Faith Cannot be the Only Test
The court’s holding that no remedy beyond a jury instruction is appropriate unless the defendant establishes the state’s bad faith is a non sequitur. The issue is not the state’s good or bad faith. Rather, the issue is whether the defendant received what the due process clause of the constitution requires: a fair trial under fundamentally fair procedures. Obviously, in some situations, a defendant might have had a fair trial even though the state acted in bad faith; likewise, a defendant might have had an unfair trial even though the state acted in good faith. The answer is fact-intensive and depends on the quality and quantity of the other .evidence, the type of evidence that was lost, its potential value for exculpatory purposes, and similar issues. There is no basis to assume, in every case where the police may have acted in bad faith, that a fair trial has been denied. Nor has due process always been satisfied where the police have acted in good faith but have lost evidence having significant exculpatory value. The majority’s bright line test achieves just that result. At 506-507, 844 P.2d at 1156-1157; Matthew H. Lembke, Note, The Role of Police Culpability in Leon and Youngblood, 76 Va.L.Rev. 1213, 1240 (1990); The Supreme Court, 1988 Term—Leading Cases, 103 Harv.L.Rev. 137, 157-67 (1989).
The majority also overlooks the effect of the presumption of innocence. See State v. Mathers, 165 Ariz. 64, 66-67, 796 P.2d 866, 868-69 (1990). Presuming the defendant to be innocent, the proper question is whether the lost evidence had such potential exculpatory value that its destruction significantly impaired his defense. One can easily imagine cases—and the trial judge in Herrera-Rodriguez evidently believed that *512this was one17—where a “defendant is unable to prove the state acted in bad faith but ... the loss or destruction of evidence is nevertheless so critical to the defense as to make a criminal trial fundamentally unfair.” Massachusetts v. Henderson, 411 Mass. 309, 582 N.E.2d 496, 497 (1991) (quoting Arizona v. Youngblood, 488 U.S. at 61, 109 S.Ct. at 339 (Stevens, J., concurring) (citations omitted)).
If the lost evidence significantly impaired his defense, Herrera-Rodriguez’ due process rights were prejudiced. Prejudice has always been an independent component of Arizona’s due process clause in cases involving destroying or failing to preserve significant evidence. See, e.g., Tucker, 157 Ariz. at 442, 759 P.2d at 588. This has been the holding in driving under the influence (“DUI”) cases such as Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986). Montano, of course, is not a failure to preserve evidence case, but our other DUI cases are.18 Prejudice has also been the test in such cases as Tucker and State v. Gerhardt, 161 Ariz. 410, 778 P.2d 1306 (Ct.App.1989), that have no relation to the peculiarities of DUI law. Neither the trial judge in Herrera-Rodriguez nor the court of appeals in Youngblood fashioned a new Arizona rule to be applied in destruction of evidence cases. They simply applied existing Arizona law. See Youngblood, 153 Ariz. at 52-55, 734 P.2d at 594-97. Since 1978, the Arizona Supreme Court has a well-settled history in cases of lost or destroyed evidence. The origin appears to be State ex rel. Hyder v. Hughes, 119 Ariz. 261, 264, 580 P.2d 722, 725 (1978) (a rape case adopting the test in United States v. Heiden and Klein, 508 F.2d 898, 902 (9th Cir.1974)). In Hughes, we quoted Heiden and Klein: “When there is loss or destruction of such evidence, we will reverse a defendant’s conviction if he can show (1) bad faith or connivance on the part of the government or (2) that he was prejudiced by the loss of the evidence.” Hughes, 119 Ariz. at 264, 580 P.2d at 725 (emphasis added). Thus, the majority ignores our non-DUI cases, in which we have consistently held, before Arizona v. Youngblood, that the test for fundamental error and due process is either bad faith OR prejudice.19
*513Remarkably, today’s majority argues that State v. Serna, 163 Ariz. 260, 787 P.2d 1056 (1990), and Tucker, 157 Ariz. 433, 759 P.2d 579, adopted a “bad faith guide long before the United States Supreme Court did.”20 If this means that bad faith was the only factor we considered, the assertion is unsupported, at best. As the majority acknowledges, these cases, like those cited in footnote 19, all held that due process was violated if the “state has acted in bad faith OR the defendant is prejudiced by the loss.”21
Prejudice is what the present case is about. The suggestion that today’s decision, making bad faith the only test for a due process violation, is a mere exercise in stare decisis is unfounded.22 Before today, bad faith was one of two elements used in the alternative to determine fundamental fairness. After today, it is the only test. Yet the majority claims “no departure from our previous holdings.”23 Until today, no Arizona case had held that bad faith is the sine qua non of due process. Today’s holding results from the majority’s ignoring well-reasoned Arizona authority and applying the views of four members of the United States Supreme Court. That the majority chooses to follow the views of a plurality of the United States Supreme Court is unremarkable, though I believe on this issue it is erroneous. The court’s refusal to acknowledge what it is doing, however, is remarkable.
We should not ignore well-reasoned Arizona authority just because four United States Supreme Court justices change their interpretation of what federal due process requires. Five years from now, the plurality may change. What then for Arizona?
3. The Majority’s Holding is Unsupported by Authority
These considerations have prompted other state courts to reject the view of today’s majority and that of the United States Supreme Court s plurality in Arizona v. Youngblood. See, e.g., Thorne v. Department of Pub. Safety, 774 P.2d 1326, 1330 n. 9 (Alaska 1989) (“We have construed the Alaska Constitution’s due process clause to not require a showing of bad faith.”); Lolly v. Delaware, 611 A.2d 956 (Del.1992) (rejecting bad faith as a grounds for Willits-type instruction); Hammond v. Delaware, 569 A.2d 81, 86-87 (Del.1989) (“We remain convinced that fundamental fairness, as an element of due process, requires the State’s failure to preserve evidence that could be favorable to the defendant ‘[to] be evaluated in the context of the entire record.’ ”) (quoting United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976)); Hawaii v. Matafeo, 71 Haw. 183, 787 P.2d 671, 673 (1990) (“In certain circumstances, regardless of good or bad faith, the State may lose or destroy material evidence which is ‘so critical to the defense as to make a criminal trial fundamentally unfair’ without it.”) (quoting Arizona v. Youngblood, 488 U.S. at 61, 109 S.Ct. at 339 (Stevens, J., concurring)); Idaho v. Fain, 116 Idaho 82, 774 P.2d 252, 265-67, cert. denied, 493 U.S. 917, 110 S.Ct. 277, 107 L.Ed.2d 258 (1989); Henderson, 582 N.E.2d at 497 (“The rule under the due process provisions of the Massachusetts Constitution is stricter than that stated in the Youngblood opinion____ The fact that the police did not act in bad faith when they negligently lost the potentially exculpatory evidence cannot in fairness be dispositive of the issue.”); New Hampshire v. Smagula, 133 N.H. 600, 578 A.2d 1215, 1217 (1990) (applying a different test under the state constitution); New York v. Ramos, 147 A.D.2d 718, 538 N.Y.S.2d 327, 328 (1989).
The error in the majority’s logic becomes apparent when one considers its espousal of the Willits instruction.24 See generally Willits, 96 Ariz. at 186-91, 393 P.2d at 275-79. The majority concludes that an instruc*514tion permitting the jury to infer that the evidence would have been exculpatory cures the problem, no matter how significant the lost evidence. This, of course, is an assumption for which no empirical evidence exists. In fact, considerable evidence suggests the contrary. See generally Joseph M. Livermore, Absent Evidence, 26 Ariz.L.Rev. 27 (1984); J. Alexander Tan-ford, The Law and Psychology of Jury Instructions, 69 Neb.L.Rev. 71 (1990). In any event, the majority fails to explain why it is permissible for the jury to infer that the evidence might have been exculpatory but impermissible for the trial judge to do so as a matter of law under appropriate facts.
4. The Majority’s Holding is Bad Judicial Policy
Finally, in making the officers’ bad faith the litmus test to determine whether a defendant received what due process requires, the majority requires our trial courts to do exactly what they should not do. Instead of deciding the objective question of whether the loss of the evidence deprived a defendant of a fair trial, trial courts will, henceforth, concentrate on the subjective intent of the officers. No benefit and much mischief will result from these mini-trials on the motives of the police and prosecutors. See Pool, 139 Ariz. at 105-07, 677 P.2d at 268-70; Lolly, 611 A.2d at 960.
The majority’s new rule has other significant policy ramifications. Regardless of whether important evidence is exculpatory or inculpatory, good public policy requires that the police use care in preserving it. Instead of requiring a defendant to prove something as nebulous and subjective as a police officer’s bad faith, we should encourage due care. Today’s holding invites bad police work, so long as the government does not act in bad faith, whatever that is. Is it bad faith when the police collect valuable evidence, know that it should be preserved, but carelessly fail to do so? Is it bad faith when the government fails to provide the law enforcement agency with the proper equipment to preserve the evidence? Properly, the majority does not define bad faith at this time; no doubt, we must await a procession of cases over the coming years to define this amorphous term.
The new bad faith jurisprudence created by the present case is possible, again, only because the majority ignores the presumption of innocence. The basis of our previous cases was that because a defendant is presumed innocent, we must at least indulge the idea that evidence that could have significant exculpatory value would have rebutted guilt. Therefore, in cases in which the other evidence is inconclusive, the loss may well have prejudiced the defendant and deprived him of a fair trial, thus requiring dismissal.
I would rest on our previous cases and, in applying our constitution, follow the holdings of other state courts. I agree with the Massachusetts Supreme Court that when the government loses potentially exculpatory evidence, the trial court must
balance the degree of culpability of the government, the materiality of the evidence, and the potential prejudice to the defendant in order to protect the defendant’s constitutional due process right to a fair trial____ If the loss of the evidence threatened the defendant’s right to a fair trial, the judge has discretion concerning the manner in which to protect thé defendant’s rights.
Henderson, 582 N.E.2d at 496-97.
CONCLUSION
Thus, in Youngblood, believing that the issue of due process is not precluded, I would approve the court of appeals’ opinion and reverse the judgment of conviction. In Herrera-Rodriguez, I would vacate the court of appeals’ opinion and affirm the trial court’s order of dismissal.
ZLAKET, J., concurs.. Lead op. at 505-506, 844 P.2d at 1155-1156.
. A majority of this court (Vice Chief Justice Moeller, Justice Corcoran, and Justice Martone) holds that due process is not violated unless a defendant can demonstrate that the loss of evidence has resulted from the state’s bad faith. Also, a majority (Chief Justice Feldman, Vice Chief Justice Moeller, Justice Corcoran, and Justice Zlaket) believes that Youngblood should not be precluded from asserting his Arizona due process rights in this court. Therefore, I refer to Justice Martone's opinion as the "lead opinion.”
. Lead op. at 505, 844 P.2d at 1155.
. Lead op. at 505, 844 P.2d at 1155.
. Lead op. at 505-506, 844 P.2d at 1155-1156.
. The lead opinion suggests that the preclusion issued was briefed. Id. and n. 5. It is incorrect. Preclusion was raised by the state in one paragraph. Petition for Review at 10-11. Young-blood responded in one paragraph. Opposition to Petition for Review at 2. This court then denied review on the preclusion issue but granted review, ordered supplemental briefing, and heard argument on two other issues. See Order dated May 25, 1990. Thus, the preclusion question was not accepted for review, not briefed, and not argued.
. In discussing Tucker's claim that the loss of evidence had rendered his trial fundamentally unfair, thus depriving him of due process, former Chief Justice Gordon discussed federal and Arizona cases without citing to either constitution; nor did he indicate whether Tucker made his claim under either or both. While judges, particularly those of the highest courts, may sometimes be excused for that which the lead opinion condemns in lawyers, the Chief Justice and the Tucker court possibly were under the same misapprehension as defense counsel in this case, correctly believing at the time that the test was the same under both constitutions.
. Lead op. at 504, 844 P.2d at 1154.
. Cf. Lead op. at 505 n. 3, 844 P.2d at 1155 n. 3.
. Lead op. at 505, 844 P.2d at 1155.
. Concluding that the "Nevada courts had no reason to consider an argument that Riggins did not make,” Justice Thomas asserted that the United States Supreme Court "should refuse to consider Riggins’s [liberty interest] argument," especially because it had granted certiorari only to determine other issues. Id. No other member of the Court agreed. In fact, Justice Scalia joined the dissent on all issues except preclusion. Riggins, — U.S. at-, 112 S.Ct. at 1821.
. For a description of the evidence in Youngblood, see 153 Ariz. at 50-52, 734 P.2d at 592-94. The opinion applies law (as it existed in Arizona until today) to fact with compelling force, demonstrating, I believe, the error of the view taken by today’s majority. See id. at 52-55, 734 P.2d at 594-97.
. See November 4, 1988 order, State v. Herrera-Rodriguez, Maricopa County Superior Court case No. CR-87-11124.
. Lead op. at 508, 844 P.2d at 1158.
. Lead op. at 506, 844 P.2d at 1156.
. Lead op. at 506, 844 P.2d at 1156.
. In a comprehensive minute entry filed on November 4, 1988, an able, experienced trial judge detailed the evidence, explained that it was less than overwhelming, and noted that the jury, which hung, must have reached the same conclusion. He then dismissed the case.
. See, e.g., State v. Kemp, 168 Ariz. 334, 813 P.2d 315 (1991) (reaffirming that police must preserve a separate breath sample for independent testing by a DUI defendant): State v. Velasco, 165 Ariz. 480, 799 P.2d 821 (1990); Oshrin v. Coulter, 142 Ariz. 109, 688 P.2d 1001 (1984) (holding that the Arizona Supreme Court will reverse a conviction if bad faith or prejudice can be shown).
Until today, our court’s cases have always accepted the proposition that due process requires that even in situations "where the defendant cannot show bad faith in [the state’s failure] to preserve material evidence, the defendant may nevertheless be entitled to a dismissal if he made a sufficient showing of substantial prejudice.” State v. Gerhardt, 161 Ariz. 410, 412, 778 P.2d 1306, 1308 (Ct.App.1989). The majority overrules our jurisprudence on this issue simply by dismissing these cases as DUI cases. Lead op. at 505-506, 844 P.2d at 1155—1156. This assumes, I suppose, that we have different due process tests depending on whether the case involves drunk driving, burglary, or homicide. The constitution makes no such distinctions but, instead requires due process in all cases.
. Many subsequent decisions by this court have endorsed the Hughes rule. They include, in chronological order: State v. Hannah, 120 Ariz. 1, 2, 583 P.2d 888, 889 (1978) (holding that a defendant charged with arson and filing fraudulent insurance claim was prejudiced by the loss of the evidence); State v. Soloman, 125 Ariz. 18, 22, 607 P.2d 1, 5 (1980) (holding that the defendant charged with rape while armed with a knife was not deprived of his due process rights); State v. Schilleman, 125 Ariz. 294, 299, 609 P.2d 564, 569 (1980) (holding that defendant charged with first degree rape and burglary not deprived of due process rights); State v. Wiley, 144 Ariz. 525, 538, 698 P.2d 1244, 1257 (1985) (holding that defendant charged with burglary, kidnapping, and robbery not deprived of due process rights); State v. Day, 148 Ariz. 490, 496-97, 715 P.2d 743, 749-50 (1986) (holding that defendant charged with various sexual assaults not deprived of due process rights); Tucker, 157 Ariz. at 442-43, 759 P.2d at 588-89 (defendant charged with first degree murder); State v. Serna, 163 Ariz. 260, 264, 787 P.2d 1056, 1060 (1990) (holding that defendant charged with first degree murder not deprived of due process rights).
. Lead op. at 507, 844 P.2d at 1157.
. Lead op. at 507, 844 P.2d at 1157 (quoting State v. Day, 148 Ariz. 490, 496, 715 P.2d 743, 749 (1986) (emphasis added)).
. Lead op. at 507, 844 P.2d at 1157.
. Lead op. at 507, 844 P.2d at 1157.
. Lead op. at 505-506, 844 P.2d at 1155-1156.