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June 15, 2006

Your client's busted for DWI, you file a motion to preserve the videotape of the arrest, and find that the cops destroyed the tape. Is that a basis for having the charges thrown out?

Good chance, as the recent decision from the 3rd District in State v. Geeslin explains, as long as the tape was destroyed after you filed your request to preserve it.

This goes back to a U.S. Supreme Court case in 1988, Arizona v. Youngblood, 488 U.S. 51. In Youngblood, the police had inadvertently destroyed a semen sample, and the defendant claimed this as a due process violation. The Youngblood Court established two tests, depending upon whether the evidence was "materially exculpatory" or whether it was merely "potentially useful." If the former - if it was clear that the evidence would have aided the defendant - the defendant's rights are violated if the police don't preserve it. On the other hand, if the evidence is only "potentially useful" - evidence that can go either way, like a semen sample or the videotape of an arrest - the defendant's rights haven't been violated unless he can show that the destruction was done in "bad faith." The defendant has the burden of proof in both cases: either showing that the evidence was exculpatory, or that the police destroyed it in bad faith.

A videotape of an arrest, like the semen sample in Youngblood, is the classic example of "potentially useful" evidence: until you see it, you don't know whether it's going to do the defendant any good. It might seem logical that the courts would simply apply a rule that if the evidence was destroyed after the defense requested it, that constituted bad faith. They haven't, but several courts have arrived at pretty much the same place by taking a different route: they hold that if the tape is destroyed after the request is made to preserve it, the burden shifts to the prosecution to prove that it wasn't exculpatory. Typical of this reasoning is Geeslin, which also gives an exhaustive (and exhausting) analysis of the subject. The courts in the 1st, 6th, and 10th Districts have ruled the same way, although the 5th District has rejected the burden-shifting approach.  (They did find bad faith in that case, though,and it's a good read for that purpose.)

As I said, the reasoning isn't completely logical. The burden not only shifts, but it's transformed into a burden on a different subject in the process: it goes from the defendant having the burden of proving bad faith to the prosecution having the burden of proving the evidence isn't exculpatory. Still, it works out to pretty much the same thing. A prosecutor will be hard-pressed to prove that a tape is not exculpatory if the tape no longer exists.

Keep in mind, though, that if the tape was destroyed before you requested that it be preserved, you're probably out of luck; the courts have pretty routinely rejected such claims. Including our court, in the closest it's come to ruling on the subject. Back in 1980, in City of Solon v. Gravill, 1980 Ohio App. LEXIS 12812, it rejected a claim of a due process violation because no request was made to preserve the tape in that case.

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