Mimesis Law
21 October 2019

Chicago Court Imposes Consequences for Destruction of Video

Feb. 19, 2016 (Mimesis Law) — An Illinois appellate court has upheld the ruling of a trial court, sanctioning the government for destroying video of a DUI stop. The remedy is preventing officers from testifying about the arrest.

Basically, a man was pulled over in front of three video cameras (called “police observational devices,” or PODs, because video cameras don’t sound official enough) on a busy roadway. The PODs were installed in 2003, providing a rotating view that could be expected to include portions of the arrest and the field sobriety tests.

So, the defendant’s attorney subpoenaed the Chicago Police Department, asking that they please send him “[All] audio and video tape recordings, including but limited to [sic] in-car and in-station videos.”

Two days later, Chicago PD assured the attorney that no such videos existed. He followed up with additional requests for the video, but by then, Chicago PD told him all the videos had been deleted since they were past their fifteen day “retention date.”

Not exactly gripping stuff so far. But the defense attorney decided to move for sanctions, asking that the trial court prevent police officers from testifying to what they saw since they had destroyed the video that would otherwise be available and necessary to challenge their account.

And courts have a usual response to such a motion. They shrug.  Nothing we can do, they say. You can argue it in closing. Then closing comes, and the prosecutor shakes his fist at a fickle God that the video, which would have been so helpful, has been lost.

But the dash cam wasn’t working that day. The microphone was accidentally stashed in the glove box. The videos were accidentally deleted…perhaps by a group of officers accidentally wandering into a Burger King and mistakenly demanding the tape.

And while civil cases often have a remedy for this sort of thing: a “spoliationinstruction to the jury that they can assume evidence was favorable if the other side had it and destroyed it in bad faith, such an instruction is pretty rare in criminal cases.

Defense counsel could have safely expected the trial court to take the government’s word for it that they were just trying their best. But the trial court instead said that the government could not testify to anything that happened on the tape.

Naturally, the government then tried to win on the most technical of grounds. Remember that “[sic]” up above? “[All] audio and video tape recordings, including but limited to [sic] in-car and in-station videos.”

The government claimed for the first time on appeal that the defense attorney’s typo totally robbed them of all notice that they were expected to produce anything other than in-car and in-station videos. Fortunately, the Court of Appeals made short work of it:

[T]he Chicago police department, the assistant State’s Attorney and the OEMC all perceived the requests as incorporating the POD camera videos when, subsequently, both the Chicago police department and the OEMC conducted a search pursuant to defendant’s subpoena and ultimately responded to defendant’s request by stating that the requested material was overwritten.

This decision makes a lot of sense, especially in Chicago, where video evidence appears to be uniquely delicate and susceptible to accidental erasure. It is a lot more effective than a spoliation instruction, which requires the jury to make a lot of findings before holding anything against the government.

And most importantly, it does a lot more than the nearly useless Arizona v. Youngblood remedy that we’ve been yoked with lo these past 30 years. When the United States Supreme Court decided that the only constitutional remedy for destruction of evidence was dismissal of the case, they effectively doomed any chance for a defendant to actually get that remedy.

Worse still, defendants under the Youngblood standard have to prove that evidence which has already been destroyed, which they may have never had access to, would have helped their case. There is no better illustration of how impractical that doctrine is than the fact that Youngblood lost at the Supreme Court when the government destroyed essential DNA evidence, only to be later exonerated when better methods allowed him to test it.

But here, the court applied a simple, effective remedy. When you destroy probative evidence, you can’t present testimony or other evidence that the destroyed evidence might have contradicted. The incentives here, rather than dismissing charges against the arguably guilty, instead encourage accuracy by pushing for the consistent preservation of relevant evidence.

Hopefully, other courts and even legislatures will start looking at this Illinois sanction as a reasonable response to the destruction of evidence. When there are reliable consequences for the loss of video, there will be reliable methods for preventing it.

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