Asked about 1 year ago - Jersey City, NJFlag
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Not every police department has video in NJ. If they do, and it is not available at trial, that does not end the case. It goes to the credibility and weight of the officer's testimony. If it can be proven he destroyed it on purpose, there would be a much better chance of getting an outright dismissal. If you are thinking of making a motion along those lines you really need a lawyer.
I agree with Mr. Mark. If the police did in fact destroy the tape, there is more at stake here than just your DUI case. Do you know if the department does have tapes? How do you know it was destroyed? Did you request it? There are a lot of unanswered questions. Feel free to call my office or one of the other AVVO Rated attorneys for help with this. You really should have a lawyer for this one.
The police can turn over only that which they have. Frequently they will have one of their own "experts" declare that the video never was properly recorded in the first place, therefore, there is nothing to turn over. Your lawyer can request that the judge allow a defense expert to have access to the recording equipment and system to determine if the police version is correct, or whether there has been tampering, deliberate erasure, the recording is still there, etc.
The state denies due process of law by withholding material evidence, whether or not a request is made. United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976); Hilliard v Williams, 516 F2d 1344 (CA 6, 1975). In Taylor v Illinois, 484 US 400; 108 S Ct 646; 98 L Ed 2d 798 (1988), the Supreme Court held that it was proper to exclude defense witnesses
because the defense failed to disclose the information until trial. The Court found this extreme remedy to be justified, stating:
"More is at stake than possible prejudice to the prosecution. We are also concerned with the impact of this kind of conduct on the integrity of the judicial process itself." It would deny due process to apply such a rule against the defense but not the prosecution. Wardius v Oregon, 412 US 470; 93 S Ct 2208; 37 L Ed 2d 82 (1973).
Of course, if there is nothing to withhold, then they could not have withheld it. The claim of nonexistence will likely be prominent in the prosecutor's response to your arguments.
You can argue to the Court that the fact of concealment is itself potent evidence it is exculpatory; when the police have inculpatory evidence, they do not conceal it. The recording is the only evidence other than the Defendant's own word that can contradict the officer. That is the very reason why the defense still does not have this recording, because the prosecutor's office does not want their witness to be contradicted.
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