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What To Do, What To Do About Lost, Destroyed, or Missing Video?
People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02)
It’s unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it’s unclear what’s the best remedy.
Gist
Defendant was cited for DUI involving alcohol, DUI involving drugs, and various traffic offenses. Before trial, the state was ordered to provide defendant with a squad-car video of the traffic stop. It failed to do so, and defendant moved to bar evidence of the events captured by the video, as a sanction.
The trial court denied the motion.
What Happened To The Video?
The parties stipulated that the deputy would testify that he recorded the stop, the video was never uploaded to the system where videos were stored, he could not explain why it was not uploaded, and he was unsure if the recording was still “in the cloud.”
According to the deputy, the video equipment was not malfunctioning, but, when he checked the system where the videos were stored, he noticed that it was not there, so no video was ever uploaded. He thought the video entered the cloud, because he saw space for video on his computer free up after uploading, but that, since there were multiple videos, he could not say for sure whether the video from defendant’s stop was uploaded.
When he tried to download the video, he was unable to find defendant’s stop or any of the other stops that he had uploaded. The video either did not exist or was irretrievable.
The court sought to clarify by asking, “It was not sent to the [c]loud and unretrieved? It was actually not sent anywhere?”
The state responded that, because of a malfunction in the computer, the video was not sent to the cloud.
The court then stated that there was nothing to indicate that the video ever existed and was destroyed.
Motion For Sanctions
Defendant moved in limine for the following nonpattern jury instruction:
“If you find that the State has allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State’s interest.”
The court denied the motion, noting that nothing showed that the State intentionally destroyed evidence. See People v. Danielly, 274 Ill. App. 3d 358, 367 (1995), and Arizona v. Youngblood, 488 U.S. 51 (1988) (officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police).
See Also Civil JI 5.01
Here a jury is told that it may infer that missing evidence that was within a party’s power to produce would have been adverse to that party.
Civil JI 5.01.
See also Illinois Discovery Law.
The DUI Case
At around 11 p.m., the deputy saw defendant make a wide right turn and cross over the centerline multiple times. Defendant was driving 59 miles per hour in a 45-mile-per-hour zone. Car pulled over. The squad car had an audiovisual system that automatically turned on at that time.
The deputy approached from the passenger side of the vehicle, observing that there was also a person in the passenger seat.
Defendant gave his driver’s license but could not locate his insurance card. The deputy observed that defendant’s movements were slow and lethargic. The deputy also smelled alcohol coming from the vehicle, and the odor got stronger when defendant spoke.
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By Police NuggetsPeople v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02)
It’s unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it’s unclear what’s the best remedy.
Gist
Defendant was cited for DUI involving alcohol, DUI involving drugs, and various traffic offenses. Before trial, the state was ordered to provide defendant with a squad-car video of the traffic stop. It failed to do so, and defendant moved to bar evidence of the events captured by the video, as a sanction.
The trial court denied the motion.
What Happened To The Video?
The parties stipulated that the deputy would testify that he recorded the stop, the video was never uploaded to the system where videos were stored, he could not explain why it was not uploaded, and he was unsure if the recording was still “in the cloud.”
According to the deputy, the video equipment was not malfunctioning, but, when he checked the system where the videos were stored, he noticed that it was not there, so no video was ever uploaded. He thought the video entered the cloud, because he saw space for video on his computer free up after uploading, but that, since there were multiple videos, he could not say for sure whether the video from defendant’s stop was uploaded.
When he tried to download the video, he was unable to find defendant’s stop or any of the other stops that he had uploaded. The video either did not exist or was irretrievable.
The court sought to clarify by asking, “It was not sent to the [c]loud and unretrieved? It was actually not sent anywhere?”
The state responded that, because of a malfunction in the computer, the video was not sent to the cloud.
The court then stated that there was nothing to indicate that the video ever existed and was destroyed.
Motion For Sanctions
Defendant moved in limine for the following nonpattern jury instruction:
“If you find that the State has allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State’s interest.”
The court denied the motion, noting that nothing showed that the State intentionally destroyed evidence. See People v. Danielly, 274 Ill. App. 3d 358, 367 (1995), and Arizona v. Youngblood, 488 U.S. 51 (1988) (officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police).
See Also Civil JI 5.01
Here a jury is told that it may infer that missing evidence that was within a party’s power to produce would have been adverse to that party.
Civil JI 5.01.
See also Illinois Discovery Law.
The DUI Case
At around 11 p.m., the deputy saw defendant make a wide right turn and cross over the centerline multiple times. Defendant was driving 59 miles per hour in a 45-mile-per-hour zone. Car pulled over. The squad car had an audiovisual system that automatically turned on at that time.
The deputy approached from the passenger side of the vehicle, observing that there was also a person in the passenger seat.
Defendant gave his driver’s license but could not locate his insurance card. The deputy observed that defendant’s movements were slow and lethargic. The deputy also smelled alcohol coming from the vehicle, and the odor got stronger when defendant spoke.