Less Satisfactory Evidence: State v. Wildeboer

Ever been accused of not bringing your A-game evidence to trial?  Or had opposing counsel not bring theirs?  The Oregon Court of Appeals just handed civil litigators some useful guidance on this question in State v. Wildeboer, 338 Or App 404 (2025).  This criminal case delivers beyond its DUII context and is probably a useful read as you’re preparing for trial.

What it says: Wildeboer establishes that a less satisfactory evidence instruction is not required merely because a party could have gathered potentially superior evidence in the past.  According to the Court of Appeals, it’s appropriate only when:

1. A party withheld stronger evidence that was actually available at trial (in its possession or obtainable by subpoena); or
2. A party failed to gather stronger evidence specifically to avoid developing adverse evidence.

When a party has legitimate reasons for not gathering potentially superior evidence—unrelated to suppressing unfavorable results—the instruction is inappropriate.

Using Wildeboer to your advantage: It’s wise to think ahead about what evidence you (or your opponent) are relying on before you get to trial.  Some things to think about to defend against the instruction or when it looks like your opponent’s evidence may be suspiciously thin:

When defending against the instruction,

• Document your strategic decisions: Contemporaneously record why you chose certain tests, experts, or investigative methods over others.  Focus on legitimate considerations like cost, burden, and efficiency.
• Leverage expert opinions: Have your expert document why certain tests or methodologies were sufficient, demonstrating that your choices were based on sound professional judgment rather than an effort to avoid unfavorable results.
• Test your evidence strategy: If concerned about potential “missing evidence” arguments, consider focus-grouping how persuasive the argument might be to determine whether additional testing is worth the cost.

When seeking the instruction:

• Strategic deposition questioning: Ask defense witnesses directly about why they didn’t preserve certain evidence, conduct specific tests, or consult particular experts. Note inconsistencies that may suggest post-hoc justifications.
• Establish what was “within their power”: Discovery should clearly establish what evidence was in the defendant’s possession or control at the time of trial. Requests for admission can be particularly effective for establishing this foundation.
• Identify pattern evidence: If a defendant consistently fails to preserve certain categories of evidence that tend to be unfavorable, this pattern may help establish that the decision was made to avoid developing adverse evidence.
• Effective Rule 39C(6) depositions: Question corporate representatives about document retention policies and evidence-gathering protocols to identify deviations that suggest an intent to avoid unfavorable evidence.
• Examine insurance influences: In cases with potential insurance coverage, explore whether decisions about evidence gathering were influenced by coverage concerns rather than legitimate investigative needs.

Wildeboer gives lawyers protection for reasonable strategy calls without rewarding evidence-dodging shenanigans.  Document your choices as if someday you’ll need to explain them to a skeptical judge (because you probably will).