Court faults officers for failing to preserve video footage and orders charges dismissed
Editor’s note: the following is a legal alert from BBK Law.
Overview: The Court of Appeal held in a published case that officers violated a defendant’s due process rights by failing to preserve police camera video of a robbery crime scene when both the defendant and his counsel sought the video before it was routinely destroyed.
Training Point: When officers are aware that video footage is available and might be “potentially useful” to the defense, officers have an affirmative duty to preserve the evidence. If the video is destroyed, even as a matter of routine, courts will infer it was done in “bad faith” and any pending criminal charges stemming from that case may be dismissed on the grounds that the destruction of the evidence rises to the level of a due process violation.
Officers should follow their departmental policy and guidelines as it pertains to the recording, retention and destruction of video footage.
Summary: In the early morning hours, Jose C. and a companion were walking across the parking lot of commercial complex when they were confronted by “five male gang types,” one of whom he told police stole a gold chain from around his neck while two others threatened him. Because the area was an area of “high concern” the Anaheim Police Department had two cameras trained on it.
Jose followed the men and flagged down patrol officers, who detained the suspects nearby. A gang detective responded to the scene. The gold chain was found nearby.
One of the suspects insisted that, while at the scene, he told the gang detective to “get the videos,” insisting that the video footage would show that neither he nor one of the other suspects were involved in the robbery. In response, according to the suspect, the gang detective said, “If I had video camera of what took place, that’s part of my job. My job is not to arrest people that aren’t guilty of something.” When later called to testify, the gang detective testified he did not recall one of the suspects requesting the video footage but that it would not surprise him if someone had said that. The evidence revealed that a personal recording device worn by the gang detective that recorded one of the suspects saying, “Check the cameras, dude! There’s gotta be cameras around here, man….” In response, the gang detective stated that getting the videos was part of his job.
The gang detective did not retrieve the videos or request any other detectives assigned to the case to do so. Defense counsel requested copies of the video footage; however, despite the prosecution’s assurances to obtain and preserve the videos, the evidence revealed that pursuant to routine practice, the department destroyed the videos
Charges against two of the suspects were dismissed on grounds that their due process rights were violated as a result of the destruction of potentially exculpatory evidence. The 4th District Court of Appeal affirmed the order, holding held that the video footage was “potentially useful” to the defense and, because the police and prosecution were on notice of the request for the footage and because the gang detective and the prosecution promised to retain it, even the routine destruction of the video constituted “bad faith.”
For more information regarding this case or its implications for your agency and public safety department, please contact one of the attorney authors of this legal alert listed at the right in the Public Safety group, or your BB&K attorney.
Originally posted at BBK Law.