I have always told the defense bar that they are welcome to copy the DVDs / videos from DWI arrests. The office is just my secretary and me - and we really don't have the time to do them for everyone.

THis works great locally, and in the interest of fairness, I have told out of town lawyers that they need to contact a local for assistance if they don't want to do it themselves.

Yesterday, the judge (who will be the trial judge if the case doesn't plead) demanded that he be given the DVD to copy for an out of town attorney. This idea makes me extremely uncomfortable...seems to violate one or two ethical canons ...so I am refusing.

What do those of you with very small offices and no investigators do? Are you copying them? How do you feel about the judge doing it?

Lisa L. Peterson
Nolan County Attorney

Technically, the judge can't order the evidence to be out of your possession. In the past, I've had the judge order that I allow my only copy for the defense to enter as evidence and the answers I got on here said that it wasn't allowed....but try actually stopping it and it's a mess.

One system that we used that worked fairly well was that we used an outside person to copy--but at $20 bucks a pop--to pay the person for the equipment and time. So the defense paid before hand and got their copy. They usually chose to just view mine for free unless there was a special need to get their own copy. The opposition came when they were court appointed at a low fee and had to dish out 20 bucks for the copy.

Some law enforcement will do it with a court order, so if the judge orders them to make a copy, they will probably squawk but will probably do it. I've seen that happen as well, and they only charge a nominal fee, like three dollars or so. It makes me a little nervous, though, to have defense receiving evidence directly from law enforcement...but with a small town you probably work closely with them enough to explain that this is the only time they give out evidence.

I have got an article 39.14 trial memo addressing the issue that evidence cannot be removed from state's possession. There the defense wanted independent testing of the shotgun, but we successfully argued that the State has the right to appoint someone to watch over the evidence while it is out of the State's possession.

39.14 "Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State." I suppose the judge could argue he is the State, but I would argue that he is no longer an unbiased judge and is advocating for the defense.

In Abilene we use an outside source and defense furnishes the tape/cd/dvd. They also pay for the copy charge.

We do the $20 fee for an outside vendor to make copies. (I've offered to make copies on my personal equipment for half that, but still no answer. I know of two other smaller counties that have the in-house equipment. One charges a nominal fee ($3) and the other has no charge if the defense atty provides a blank tape/CD/DVD.

Here is a link to some machines for copying DVDs ... the starting price is less than $200

http://www.newegg.com/Product/ProductList.aspx?Submit=ENE&N=2000100528%201036520714&bop=And&Order=PRICE

Out of curiosity...is there anyone else who lives in a county where there is not an outside business that will do this? We have the equipment in our office to copy VHS - VHS, VHS-DVD, and DVD-DVD; what I don't have is the manpower to do it and mail it. My one secretary and I stay pretty crazy...

Lisa L. Peterson
Nolan County Attorney

Is it possible to have the equipment on a stand alone computer so the defense could come and do it themselves?

Making some of these is time consuming, and uses a lot of memory from the computer which sort of keeps you from other work, so I see why you don't have time to do it all yourself.

Can you request that law enforcement send it to you with two copies? I have a hard time getting this one out with a straight face, but maybe one of your agencies is sympathetic to your plight?

It is perfectly reasonable to request that law enforcement provide two copies. We are making that request, particularly if the digital information arrives on a DVD in a proprietary format that requires passwords or installation of software to copy or watch the DVD.