In a remarkably brave decision, the Second District court of appeals ruled that police destruction of a materially exculpatory video must result in dismissal of the indictment.  The case is State v. Blair, 2014 Ohio 1279.  This result is rare.  Not only is the legal standard that defendants must meet absurdly illogical and almost insurmountable, as I will discuss below, but the felony that was ordered dismissed in this case was assault on a police officer.  You know the appellate court really had some problems with the officers for it to dismiss that particular charge.

I often file motions to preserve evidence along with my request for discovery.  The reason is simple.  If I believe there is helpful evidence that may eventually spoil or be destroyed, I want the court to order its retention for my use.  This could be samples of an illegal substance, which could be used for independent testing or reweighing, or it could be the dash-cam on the police cruiser.  Let’s just say it is not uncommon for my client’s rendition of events to differ significantly from the officer’s.

If the interaction of the officer and my client is captured on a video, I want to see that.  Sometimes I wished there wasn’t a video, but other times it is very helpful.  But what happens when the video is destroyed by the state? One of the remedies is for the trial court to grant a motion to dismiss.  Seems fair, right?  There is just something unseemly about the notion that there is an independent, objective way to prove who’s telling the truth, but that it has been lost forever, conveniently or not.  So let’s look at when the court should dismiss the charge.

Legal Standard:

Due Process protections prevent the state from convicting a defendant when (1) the state fails to preserve “materially exculpatory evidence,” or (2) destroys in bad faith “potentially useful” evidence.   In short, when the evidence is materially exculpatory, a defendant need not show the state acted with any form of malice (bad faith).  All a defendant needs to demonstrate is that the state had a duty to preserve the evidence and failed to do so, whether on accident or through negligence.  If, however, a defendant can show the state acted in bad faith, the defendant only has to convince the trial court that the evidence was “potentially useful,” even if it wouldn’t have necessarily established his innocence.

In Blair, the Second District noted that to be considered materially exculpatory, “evidence must possess an exculpatory value that was apparent before the evidence was destroyed, and be of such nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

At first glance, this standard doesn’t seem all that bad.  If a defendant can get comparable evidence from some other place, why worry so much.   And although the Blair court considered the evidence to have been materially exculpatory in this case, most trial courts hardly reach the same conclusion when applying the above standard.

Because trial court’s believe almost anything that comes out of officers’ mouths, all the police have to say is, “whoops, my bad.”  “I accidentally erased the video.  I’m so sorry.” That takes us out of bad faith. We now have to prove not just the utility of the evidence, but that it is (1) exculpatory, (2) the exculpatory nature of it was apparent prior to its destruction, and (3) there is no comparable evidence obtainable elsewhere.

Normally, that is an insurmountable standard.  First, how in the world is a defendant going to prove the evidence is exculpatory without having ever seen it?  If you have no idea what is on it, how much of the event was captured, it is difficult to argue that it would prove your guy’s innocent.   It is through witness testimony that you prove the exculpatory nature of the evidence.  And let me tell you, trial court’s always believe what the defendant and his friends say would be shown on the video had it been preserved.  In reality, the trial judge holds the hearing, listens to witnesses from both sides and immediately proceeds to credit the officer’s testimony, which undoubtedly “proves” that the video was not exculpatory.

Second, another nifty part of this standard is that a defendant must demonstrate that the exculpatory nature of the evidence was apparent prior to its destruction. Huh? Apparent to who?  Again, the defendant never saw it.  It takes officers to say what was on it, if anyone ever saw it at all.  Also, it is not uncommon for something that appears at first glance to be innocuous to end of being really helpful.  That’s why we review the evidence over and over again.  You see things the second time you may not have seen the first.  And how would officers truly appreciate what might be exculpatory.

So why was Blair’s motion ultimately sustained by the appellate court? Because of the rare circumstances that other independent evidence existed that tended to show the cop’s were less than truthful.  An internal affairs investigation had been conducted shortly after Blair’s arrest. The investigating officer watched the video and wrote a report.

His version of what was on the video, as memorialized in his report, didn’t coincide with the arresting officer’s version of events.  Plus, the same investigating officer’s testimony at the evidentiary hearing wasn’t believable.  He had a poor excuse for why his initial report failed to corroborate the arresting officer’s claims, while he now claimed that it mostly did.  The appellate panel probably smelled the rat.  The opinion notes the inconsistencies in the testimony of the various officers.  I believe that was the biggest reason it had a hard time rubber stamping the trial court’s decision.  The entire thing just felt wrong.

In summary, if a defendant is going to prevail on a motion to dismiss, there better be some other, objective information from some officer that supports the contention that the video would exculpate the defendant.  Luckily for Blair, this was one of those cases.