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Let's go to the video

Ah, the marvels of technology.  A police cruiser is fitted with a videocam, which faithfully records the officer's interactions with the citizenry.  You happen to be representing one of those citizens whose interaction involved being stopped after allegedly imbibing a bit too much.   You want to see the video to see how much of the cop's story it bears out.  It turns out you can't, because when making a copy of the tape, the officer inadvertently pressed "Record" instead of "Play."  At least, that's his story and he's sticking to it.

Even Justice O'Donnell, not exactly the most pro-defendant judge, expressed some incredulity over that version during the oral argument the other day before the Ohio Supreme Court in State v. Lupardus.  The bigger question is what to do about it.

The court first tackled the issue of destruction of evidence two years ago in State v. Geeslin.  As in Lupardus, a tape of a DWI arrest had been inadvertently erased.  The court adopted the distinction that the US Supreme Court had created in Arizona v. Youngblood:  basically, if the evidence was "materially exculpatory," destruction would violate the defendant's rights.  If it was merely "potentially useful," on the other hand -- you can't show whether it would have helped the defendant or not -- the defendant has to prove that the state acted in bad faith in destroying the evidence.

Lupardus reaches an issue that was left undecided by Geeslin:  what happens if the evidence is destroyed after the defendant makes a specific request for it?  The position argued by Lupardus was the same that a number of appellate districts have adopted:  the prosecution then bears the burden of proving that the evidence wasn't materially exculpatory, and if it doesn't meet that burden, the case is dismissed.  The State's position was also clearcut:  it didn't matter -- the defendant still bore the burden of proving that the evidence was exculpatory or, if it was potentially useful, that it had been destroyed in bad faith.

Unfortunately, the oral argument raised as many questions as it answered, among them:

What exactly does "materially exculpatory" mean?  The officer testified that Lupardus smelled of alcohol, that his eyes were glassy and bloodshot, and that he admitted drinking eight beers within the two hours before the stop; he blew a .114 on the breathalyzer.  The videotape wouldn't have captured any of that.  It would have shown how he did on the sobriety tests, though.  A number of justices questioned whether, in light of the breathalyzer and the fact the video wouldn't show glassy eyes or odor of alcohol, anything on the tape would have been material.  This apparently was based on their belief that Lupardus had pled to the per se violation.  He didn't; he pled to the impaired section, and how he performed on the sobriety tests certainly would have been helpful there.

How would you ever prove that something which no longer exists was "materially exculpatory"?  The video was erased.  The cop's going to say that the guy was falling over drunk, and the tape would show that.  The guy's going to say he was sober as a judge, and the tape would show that.  The judge doesn't have the tape.  Sober or not, who's he likely to believe?  Chief Justice Moyer pointedly questioned the prosecutor on the fairness of that.

How would you ever prove "bad faith"?  As noted, O'Donnell expressed some reservations as to officer's story, skepticism he'd also voiced in his dissent in Geeslin, which featured a similarly "accidental" erasure.  What officer in his right mind is going to going to come into court and testify, "Yeah, I knew it was going to get him off, so I tape-recorded A Very Special Brady Bunch Reunion over it"?  Given that most people, including judges, can't program their own VCR, the "whoops" defense is going to receive a sympathetic hearing.  Whether evidence isn't  disclosed because of accident or purpose normally isn't significant.  If the prosecutor fails to turn over Brady material, for example, it doesn't matter whether he failed to do so because the cops never gave it to him, he didn't realize the significance, or he purposely hid it:  it's still a due process violation.  That it's not treated the same way here is due solely to the "materially exculpatory/potentially useful" construct.

Are we getting into the era of "kinder, gentler" prosecutors?  Earlier this year I mentioned the oral argument in an allied offense case which saw the prosecutor asking the court to overrule State v. Rance.  In Lupardus, the prosecutor suggested that, in cases where evidence was destroyed, the jury be instructed that they were permitted to infer that the evidence would have aided the defendant; this inference would be permitted regardless of whether destruction was inadvertent or not, and regardless of whether it was "materially exculpatory" or "potentially useful."  This was too much even for Justice Pfeifer, normally the most pro-defendant justice on the court:  he noted that any ruling would apply not just to DWI cases, but to all criminal cases.  Do you really want a jury in a murder case told that they can make an inference that the DNA evidence which was accidentally trashed would have exonerated the defendant?

What will the court do?  I think there's a decent chance the case will be reversed, if only because the appellate court missed the fact that Lupardus' lawyer had made a specific request for the tape at a pretrial, before it was destroyed.  There's some problems with Lupardus' approach of having the state prove the tape wasn't exculpatory if they destroy it, inadvertently or not.  It's not entirely logical -- the burden not only shifts, but it's transformed into a burden on a different subject.  Still, you wind up in pretty much the same place, and it seems a fair result.  I think the votes just might be there to do that.

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