I began my position here in September of this year. Shortly thereafter I realized through plea negotiations that my DWI case did not have a video, despite a receipt from 2010 showing that the office had received it from the PD.

At this point I made several requests and finally went to the PD and found a copy of the video, and made it available to D counsel(approximately a month and a half ago). Now, we are set for trial in the morning and I can just feel D counsel trying to get the video suppressed based on something - spoliation or brady or misconduct, something. My belief is that the defense attorney took the video from the file years ago, but this is beside the point.

Does anyone have any on-point caselaw or has anyone had an experience similar to this one?

Thanks

I can't imagine anything here that would lead to suppression or dismissal. The only real question here (and the one you should keep your judge focused on) is *authentication.* If the video that you have provided to the defense attorney is a true and accurate recording of the events it purports to depict then it should be admitted. Any thing beyond that should go to the weight, not the admissibility.

"Officer X, does this video fairly and accurately display what occurred that night?"

"Yup."

"Have you tampered with it, or modified it in any way?"

"Nope."

"Are you sure?"

"Yup."

"Double sure?"

"Yup."

Yeah silliest objection I heard this week. "That look like what you saw?" really is whole predicate. To require any more requires the defense raise (by evidence not just talking) issue of editing. Big fact to put forward, your office lost "a" duplicate original, not "all" duplicate originals. A duplicate original is any copy made from a digital source. Just in case the defense pulls out the dusty oldie "best evidence rule".

Oh and 45 days before trial is timely for Brady purposes.

This message has been edited. Last edited by: Clay A.,

Thanks y'all. I got some on-point cases from the DWI resources as well.

As a connected issue, redacted videos should be able to be entered exactly the same, provided the officer has been able to previously view the redacted copy, correct?

quote:

Originally posted by Matt Heermans:
As a connected issue, redacted videos should be able to be entered exactly the same, provided the officer has been able to previously view the redacted copy, correct?

Yes. My predicate stays the same. I ask:

1) Is this a fair and accurate recording of what you observed that night?

2) Have YOU tampered with it in any way?

Now, of course *I* have tampered with it, but as a legal matter. I think it's important for the jury to hear the the police officer isn't messing with the evidence.

Depending on your edits, they may or may not be able to tell that it has been redacted in some way. If they can, they're smart enough to figure out that if the cop didn't edit it, somebody did, and that it's because there's probably something they shouldn't be hearing.

I would do your edits, show the tape to defense counsel and have them agree that it is what they want. Then show your officer. MAKE SURE that he is familiar with any motion in liminie or other exclusion. The last thing you want is to spend time redacting out the defendant talking about his prior and then have the officer blurt it out on the stand.

Then pre-trial, put on the record that you've made redactions after consulting with the defense attorney. Have them agree on the record that they've been provided a copy of the redactions, and they're in agreement with the version you've proposed to show the jury. Tell the judge that you've discussed the motion in liminie or redactions with the officer and told him not to talk about it.

Finally, be alert for any questioning by the defense attorney that opens the door to bring back in any mater excluded by a motion in liminie. If they have you redact something out but then ask quesitons about it, or ask questions that leave a false impression about it, ask to approach. Tell the judge what's going on and get a ruling. If necessary, take the witness back on voir dire outside the presence of the jury and have them testify about it to let the judge decide if it's truly opened the door.

Good luck!

My predicate question on that for redacted videos is always something to the effect of "Other than edits made pursuant to the order of the court, has the video been tampered with in any way?" I haven't had a defense attorney object yet. I ask it that way because I don't want jurors thinking that our side is trying to pull something over on them when they see a skip or hear some muting.

I'm with Jeff. I want to be up front with the fact that there were edits made and it was for a legitimate reason that neither side has a problem with. By bringing it up during the predicate and the defense attorney not objecting (which they don't -- why would they, since it would highlight the very reason they don't want those parts in front of the jury), you give them the explanation and move on. That way they don't start wondering and worrying if they hear something on the tape.

I've had at least one judge that would scold me very harshly if I even *suggested* that something was subject to editing because of a prior ruling, even if plainly obvious.

Know your judge. Jeff and Andrea suggest the better way if feasible.