The VCR ate my video of the crime (criminal mischief (9-06) from Walmart parking lot). Walmart only has one camera angle left of the tape, and I do have that. (The eaten tape had 3 camera angles.) I have asked the defense for a copy of the tape which we provided to him, pursuant to our Agreed Discovery Order. He has refused saying he shouldn't have to provide evidence against his client.
If any of you have any suggestions, I would really appreciate hearing.
Just off the top of my head, I would do a quick letter to the attorney and hand deliver it to him/her today or as soon as possible. In the letter, I would explain what happened to the original. I would then tell him that you consider his copy of the tape to now be evidence in your criminal case. I would respectfully refer him/her to Section 37.09 of the Texas Penal Code. Then, I would inform him that you will shortly be filing a motion with the court seeking an order for him to produce the tape for purposes of copying same and that you will also be filing an application for a search warrant to take possession of the tape in order to copy same. I would add that you fully understand that he cannot just hand the tape over without a court order or a warrant (without risking a grievance or an ineffective assistance claim) so you are filing these things to protect him as well as the record. Also, unless you are the boss, clear this with your boss because this could get a little nasty if you have a jerk defense lawyer so you'll want some back-up. Just my quick thoughts.
It's not privileged; it's not work product - why not just subpoena it?
TPC 37.09 talks about concealing evidence (with intent to impair its availability)...there is an affirmative defense for work product or privileged info. However, a tape that you provided to the defense would not be either of those.
For future reference, Nan and I stumbled upon a Texas case on point. In Adams v State (969 SW2d 106)the Dallas court of appeals ruled that the defendant's privilege against self-incrimination, attorney-client privilege, nor work-product doctrine applied to preventing the state from compelling the production of a copied DWI videotape that the defense had in its possession. The COA said the trial court committed no error after compelling the defense to hand over the tape because the tape constituted non-testimonial evidence.
...so we'll give it a shot in our case!
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