With advancements in technology, there is more of a chance that criminal activity will leave a video footprint. Take a walk down the street and you will see Ring doorbells on numerous houses or look up while you are shopping in a store, and you will see the ominous video bubbles capturing your every move. Your car and other cars on the roadway may now have cameras installed. Most intersections you enter have video recording capabilities and police officers in many jurisdictions wear body-cameras or have dash-cams in their patrol cars. Bystanders on the street are all equipped with cell phones and do not hesitate to record what they believe might be a possible crime.
In some cases, this video evidence may work in your favor because it corroborates that you were not the individual who committed the crime. It could also prove that the police officers misrepresented the facts or maybe that they intentionally omitted certain information from their investigation that demonstrates your innocence. In these situations, it is extremely important for your attorney to immediately obtain the evidence or seek to preserve the evidence before it is destroyed or written over.
Depending on the posture of your case, preservation of video evidence may require different methods. If your case is not filed right away, hiring a private attorney or an investigator may be helpful to send the appropriate entity a letter requesting they preserve the video evidence. On the other hand, if your case is filed, a Motion to obtain the evidence would be filed with the Prosecution under Arizona Rule of Criminal Procedure Rule 15.1. However, the problem is that in some cases there is a long delay between when a crime occurred and when the charges are actually filed. During that time, the evidence could be purged from a police department’s system or lost due to some other event. In these situations, an experienced criminal defense attorney knows they must challenge the State on their negligence for failing to preserve the evidence.
One such avenue to challenge the State is to file a Motion to Dismiss the case due to a violation of Due Process. Under the Constitution, the State is required to preserve evidence that might be expected to play a significant role in a suspect’s defense. In order to meet this standard, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Thus, if your video meets this criteria, a Motion to Dismiss might be your best bet to fight your charges. However, this is a particularly high standard to meet and Judges are sometimes reluctant to dismiss cases on what they deem to be technicalities.
In the alternative, should the Court not dismiss the case and your case proceeds to trial, your attorney can request that the Judge give the jury a Willits instruction. A Willits instruction is appropriate when police or other agents of the State fail to preserve potentially exculpatory evidence. The instruction is a sentence read to the jury before they go back to decide guilt or innocence, and tells them that they are permitted to infer that the evidence would have been exculpatory, or favorable to the Defendant. State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). If important video evidence was lost in your case, hopefully one of these avenues would be successful for you.
On the other hand, if the evidence is harmful to your case or demonstrates facts that may incriminate you, it may be in your best interest to fight the State from admitting that evidence into the record. The most common argument is to assert that the recordings violate the Arizona Rules of Evidence prohibition against hearsay. Other claims against admitting this evidence may include arguing that the video was improperly obtained, that the video evidence has been manipulated through the use of speeding up frame rates, asserting video bias depending on the perspective of the party filming, or arguing chain of custody was broken.
This area of the law is certainly evolving, and as the use of video and audio technology becomes more prevalent, there will certainly be more litigation to come.
If you or a loved one have a pending case involving video evidence of any kind and you would like to consult with an experienced and knowledgeable attorney, Cindy Castillo and the attorneys at Castillo Law are available to speak with you 24/7 for emergencies at 480-206-5204.