In many DWI / DUI cases in New Jersey, an important piece of evidence is the police officer’s dashboard camera videotape. In many cases, the DWI/DUI lawyer does not want the videotape to be used at trial since it will not paint a pretty picture of the state the individual was in when he or she was pulled over. However, in some cases where intoxication is disputable, the defendant’s defense attorney may want the videotape to show that he or she was in fact not intoxicated, contrary to the officer’s assertions.
It is not uncommon in these latter cases for the videotape to suddenly go missing before the DWI / DUI lawyer can obtain it from the prosecution. It must be noted however that the videotape is not admissible in New Jersey to rebut a valid breath test. Therefore, these issues usually arise when there was no breath test, the breath test is questionable, or you are challenging that there was probable cause to arrest you and administer the breath test in the first place.
A criminal defendant is entitled to disclosure of all exculpatory evidence, i.e., evidence which is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963); State v. White, 227 N.J.Super. 443, 547 A.2d 1131 (App. Div. 1988). The defendant is entitled to disclosure of all exculpatory evidence known to the prosecution or which is in the prosecutor’s file even if the prosecution has actually overlooked it. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Carter, 91 N.J. 86, 449 A.2d 1280 (1982). The good faith or bad faith of the prosecution in failing to make disclosure is generally irrelevant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); but see State v. Reynolds, 124 N.J. 559, 592 A.2d 194 (1991) (Holding that routine destruction of police dispatcher tapes by the police did not, in the absence of any evidence of bad faith or any apparent exculpatory value, constitute a Brady violation).
An individual prosecutor has a personal duty to learn of any favorable evidence known to others acting on the State’s behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 436-440, 115 S.Ct. 1555, 1567-68, 131 L.Ed.2d 490 (1995). A prosecuting agency must bear whatever consequences properly flow from the loss of evidence by other state agencies, such as the police. State v. Montijo, 320 N.J.Super. 483, 727 A.2d 533 (App. Div. 1998). In determining whether the state’s loss of evidence has resulted in prejudice to the defendant, so as to warrant the dismissal of the indictment, the burden of demonstrating a lack of prejudice is upon the state, notwithstanding that there is no presumption of prejudice inuring to the benefit of the defendant. Ibid.
In many cases, the videotape evidence of the incident would be exculpatory insofar as it would show that the Defendant was not intoxicated, that the field sobriety and breathalyzer tests were not properly conducted, and that there was no probable cause to arrest the Defendant. As such, it is without question that the videotape evidence would have at least some exculpatory value and the burden should therefore be placed upon the state to show how the Defendant would not be prejudiced at trial without the videotape evidence.
DWI/DUI lawyers should make the municipal prosecutor and the Police Department promptly aware of their possession of the exculpatory videotape evidence. Your defense attorney should immediately requested in writing that all videotape evidence of the incident be discovered and made available for inspection and review. When said evidence is not forthcoming, additional written requests should be made to the municipal prosecutor. In short, a DWI/DUI attorney must make the State alert to their discovery responsibilities regarding the videotape evidence and the exculpatory value of that evidence at an early juncture in accordance with the rule set forth in Holup, supra, 253 N.J.Super. 320.
The loss or destruction of videotape evidence by the State prior to the trial of a Defendant may constitute a due process violation requiring dismissal of the case. In this regard, New Jersey has adopted the rule of law expressed by the United States Supreme Court in Brady, supra, 373 U.S. 83. Simply stated, our Supreme Court has held that the withholding of material evidence favorable to a defendant is a denial of due process and the right to a fair trial, irrespective of the good faith or bad faith of the prosecution. State v. Carter, 69 N.J. 420, 432-433, 354 A.2d 627, 634 (1976). The test is whether the material evidence could induce reasonable doubt as to the verdict or tend to exculpate the defendant Id. at 433-434, 354 A.2d at 634.
Material evidence in this context means that the withheld evidence must possess both an exculpatory value that was apparent before the evidence was lost, and be of such a nature that the defendant would be unable to obtain a substitute or comparable evidence by other reasonably available means. California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984); State v. Colasurdo 214 N.J.Super. 185, 186-192, 518 A.2d 768, 768 – 771 (App. Div. 1986). Whatever duty the constitution imposes on the state to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, 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. State v. Washington, 165 N.J.Super. 149 (App. Div. 1979).
In this state, the determination of whether there is a due process violation when evidence has been either lost, destroyed or improperly suppressed by the State in a criminal trial focuses on three essential factors: (1) Whether there was bad faith or connivance on the part of the prosecution in the loss of the evidence; (2) Whether the lost evidence was sufficiently material to the defense; and (3) Whether the defendant was prejudiced by the loss of the evidence. State v. Hollander, 201 N.J.Super. 453, 479, 493 A.2d 563, 577 (App. Div. 1985); Colasurdo, supra, 214 N.J.Super., at 189, A.2d, at 769 (App. Div.1986).
Thus, dismissal of a complaint on due process grounds will not be warranted when the proofs demonstrate that the loss of the evidence by the prosecution was merely inadvertent as opposed to purposeful, unless there is a showing that the evidence is both material and favorable to the defendant. State v. Carter, 85 N.J. 300, 311, 426 A.2d 501, 506 (1981); State v. Laganella, 144 N.J.Super. 268, 281-282, 365 A.2d 224, 231-232 (App. Div.1976).
In, Colasurdo supra, 214 N.J.Super., at 186-192, the Defendant was charged with driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50 after being subjected to two breathalyzer tests, both of which indicated a .30% blood alcohol content. At trial, the state was unable to produce a videotape of the incident. Ibid. The police conducted an investigation into the cause of the missing tape that did not reveal any indication that the tape “was purposely destroyed or reused or removed from that department.” Ibid. The court found that there was no bad faith in the loss of the videotape. Ibid. On Defendant’s appeal to the Law Division, the court dismissed the complaint against defendant based on the missing videotape. Ibid. The State appealed the order dismissing the complaint. Ibid.
On appeal, the state argued that Defendant failed to demonstrate that loss of the videotape constituted a suppression of evidence which was exculpatory or otherwise material to Defendant’s preparation of his case and thus, did not result in a deprivation of due process under the rule of Brady so as to warrant a dismissal. Ibid.
The Appellate Court found that Defendant failed to establish that the missing videotape possessed any exculpatory value and failed to show that he “would be unable to obtain comparable evidence by other reasonably available means.” Id. citing Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534, 81 L.Ed.2d at 422. Nor did he rebut the testimony of the two witnesses concerning his inability to complete the balance tests at the station.
The facts of many DWI / DUI cases are clearly distinguishable from those in Colasurdo. In many cases, the videotape evidence of the incident clearly has exculpatory insofar as it would show that the Defendant was not intoxicated, that the field sobriety and breathalyzer tests were not properly conducted, and that there was no probable cause to arrest defendant. As such, it is without question that the videotape evidence would have at least some exculpatory value.
In State v. Holup, 253 N.J.Super. 320, 601 A.2d 777 (App. Div. 1992), the court held that dismissal of a DWI case was not warranted for failure of the municipal prosecutor to provide discovery in response to demand filed by defense counsel with the municipal court, where prosecutor claimed that he did not know of demand until date of trial, and request could have been sent to municipal prosecutor’s private office. Moreover, defense counsel could have notified municipal court judge of deficiency at calendar call rather than wait until the date of trial, and counsel could have communicated discovery failure to municipal prosecutor.
The holding in Holup was reiterated by the Appellate Division in State v. Baden, 2007 WL 1119642, 2 (N.J. Super. Ct. App. Div. 2007). The court stated that:
“Nothing within our opinion indicates that dismissal should be the automatic consequence of a failure to produce timely discovery. And nothing within our opinion indicates that the execution of such an order should limit the discretion of the trial judge in determining how to proceed in the face of a failure to produce discovery. Further, we cannot read Holup as retreating from the principle we set forth in State v. Prickett, 240 N.J.Super. 139, 147 (App. Div. 1990), “that in the administration of justice dismissal must be a recourse of the last resort.” There is nothing in the record before us to indicate that the failure here was anything but the result of inadvertence. We can perceive no policy reason why, in such an instance, the matter should not be disposed of on its merits.”
Again, the facts of many New Jersey DWI / DUI case are clearly distinguishable from the facts of Holup. In many cases, the defense attorney is retained within days of Defendant’s arrest. Defense counsel should immediately requested in writing that all videotape evidence of the incident be discovered and made available for inspection and review. In short, both the municipal prosecutor and the Police department should be made alert to their discovery responsibilities regarding the videotape evidence at an early juncture in accordance with the rule set forth in Holup.
It should be noted that many New Jersey DWI/DUI cases are also distinguishable from State v. Gordon, 261 N.J.Super. 462, 619 A.2d 259 (App Div. 1993). In that case, a Defendant charged with driving under the influence of alcohol filed a motion to dismiss the charge, or in the alternative, to exclude breathalyzer results, based upon police officers’ failure to videotape him at police headquarters after his arrest. The Superior Court, Law Division, Morris County, denied Defendant’s motion and he appealed. The Superior Court, Appellate Division, Petrella, P.J.A.D., held that policy-discontinuing practice of videotaping defendants suspected of driving under the influence of alcohol did not violate defendant’s due process rights.
In many cases, there is no change of police department policy that would have warranted the failure of the state to accurately record and safeguard the surveillance of the incident.
If you have been charged, arrested, or convicted of a New Jersey DWI/DUI, call an experienced NJ DWI/DUI lawyer for an evaluation of your case.