What happens if the Commonwealth loses evidence in a case, like your booking video in an OUI arrest?  A recent case provides new answers to this question.  Although this is not a drunk driving case, attorneys can use the reasoning in this case to advocate in upcoming cases.

In Commonwealth v. Carroll Heath, No. 15-P-227, the Massachusetts Appeals Court held that the Commonwealth’s failure to preserve booking video was negligent, that it prejudiced the defendant’s case and warranted a new trial. This case is a victory for defendants who have suffered the loss of a booking video. Booking videos are often strong pieces of evidence for the defense because they objectively show the defendant on the date of their arrest. While this case is not a drunk driving case, this case may help OUI Lawyers argue for some type of remedy when the police department loses or destroys a booking video in an OUI case.  Video evidence increases the chance of having breath test evidence excluded from trial as it shows whether the officer followed the proper procedure in administering the breath test; you can learn about these issues on my website.

The defendant in the Heath case was charged with assault and battery of a police officer. The assault and battery allegedly occurred during booking at the Haverhill police station. Prior to trial a motion to preserve video evidence was allowed. At trial it became clear that the booking video had not been preserved. The arresting officer in the case testified that he was aware that booking video did exist which would have captured the defendant on the night of his arrest, but that the video had been erased.

On the trial date, defense counsel asked the judge to instruct the jury that because the Commonwealth could have provided evidence that would assist the jury in their deliberations and failed to do so, that the jury may infer that the evidence would have been unfavorable to the Commonwealth. The judge denied the request. The defendant was found guilty.

The defendant filed a motion for a new trial stating that he was denied due process of law because the Commonwealth failed to preserve the video evidence. The motion was denied and the defendant filed an appeal.

The appeals court overturned the lower court’s decision and granted the defendant a new trial. In making their decision, the appeals court considered whether the video evidence was potentially exculpatory, whether the Commonwealth was negligent in not preserving the video, whether the video was material and whether the defendant was prejudiced by the destruction of the video.

The appeals court concluded that the video was potentially exculpatory. The court examined the evidence presented at trial as well as the defendant’s affidavit. The officer testified at trial that the defendant assaulted him and that he was aware that booking video existed and that the video would have recorded the incident. The defendant stated in his affidavit that the video would have shown that he did not assault the officer. The court reasoned that because there were two different versions of the event and that the video could have proved the defendant’s assertion, the video was potentially exculpatory.

The court then examined whether or not the Commonwealth was negligent in not preserving the video. The lower court had decided that the burden was on the defense to obtain the video because counsel had agreed to. The appeals court disagreed and held that the Commonwealth has a duty to preserve and provide to the defense any exculpatory evidence. The court went even further stating that regardless of the motion to preserve, the Commonwealth had the duty to preserve and provide the video because they were aware a video existed that would have shown the alleged crime.

The next consideration for the court was whether the video was material to the defendant’s case. The court held that the video would have helped the jury decide if the officer’s testimony was credible and whether or not the incident actually occurred. In fact, the court went so far as to say that the booking video was “highly material”.

Lastly, the court examined whether the defendant’s case was prejudiced by the destruction of the video. The lower court held that the defendant was not prejudiced by the loss of the video because the defendant could still question the officer about what occurred and the destruction of the video. The appeals court disagreed, stating that the ability to question the officer was insufficient and that the absence of the video “denied the defendant the most concrete evidence to impeach” the officer. In light of the prejudice to the defendant the appeal’s court granted the motion for a new trial and instructed the new trial judge to instruct the jury on how to consider the destruction of the video.

This case is important because it holds the Commonwealth accountable for the preservation of booking videos. Many police departments have policies allowing videos to be erased after a certain time period. Defense attorneys and clients need to be able to view these videos to impeach officers, if necessary and to show the behavior of clients on the date of arrest.  When you are in court, you may hear the Brady material, this refers to the prosecutor’s duty to preserve favorable evidence, named after the case Brady v. Maryland.

Delsignore Law routinely files motions to preserve video evidence, however courts are often hesitant to over turn cases based on the destruction of video evidence alone. This case places a burden on the Commonwealth to preserve videos if they are potentially exculpatory and also offers a remedy to defendants when the videos are destroyed. You can find the Heath decision on the Social Law website.