Prosecution and Defense

The Use of Videotape Evidence

1. How is the use of videotape evidence important in a DWI case?

The use of a videotape in a DWI case is very common in most New Jersey State and local police departments. The taping of the defendant normally occurs either during the course of the roadside investigation that culminates when the defendant is arrested, or taken back to the police station. Some police departments videotape the defendant both on the highway and at the police station. Most if not all police agencies now provide videotape evidence via a DVD.

Current technology coordinates the operation of the videotape camera in the police car with the vehicle’s overhead lights. As soon as the officer switches on the lights to effect a traffic stop, the videotape unit begins to record. A computer will track the time and date on the video for future reference. The police also who use vehicle-borne videotaping system also wear a portable, remote microphone so that any conversation between the officer and the defendant will be preserved on the videotape.

The videotape evidence is often crucial to the case for the defendant. If the videotape evidence is damaging then it is very recommended to contest the admissibility, chain of custody, and the existence and even the “non-existence” of videotape evidence. However, in some cases the videotape evidence can help the defendant beat the DWI case. The videotape may show the defendant “acing” the field tests, talking respectfully the police officer, not slurring his speech, and acting completely sober. In these types of scenarios, the admission of the videotape could certainly help the DWI defendant beat the case, or at least get a downgrade to a first tier DWI.

2. Is a videotape recording admissible in a DWI case?

A videotape record is simply a mechanical reproduction of the observations made by the individual who witness the conduct of the defendant at the time of the videotaping and are admissible as a “writing” under NJRE 1001(a), and NJRE 801(e). A videotape is also considered to be a photograph under NJRE 1001(b). Normally, a videotape of the defendant taken on the highway or at police station will provide the best indication of the defendants condition and it is highly probative. In most cases, the judge will rule that a videotape is admissible in evidence.

3. What are some objections to the admissibility of a videotape?

The most frequent objection to the admissibility of a videotape is that the tape contains statements by the defendant are excludable as a matter of law. Normally, the basis for this argument is that the defendant made admissions to the police on videotape without having been properly advised of his or her right to remain silent. In summary, if the videotape contains statements of the defendant given in violation of his or right to remain silent under Miranda, then the sound portion of the videotape should be redacted to suppress the offending statements. However, any and all non-testimonial evidence, if otherwise relevant, is admissible. This can be very helpful or damaging to the case. The judge will be able to review the defendant’s words. The judge can listen to the defendant’s tone, his voice inflection, any slurred speech, and any attitude and demeanor of the defendant.

4. What happens if the videotape is lost?

In some cases, the DVD or videotape is lost, or recorded over. The loss or destruction of videotape evidence by the State/Prosecutor prior to the trial of a defendant may constitute a due process violation that requires the dismissal of the case. New Jersey has adopted the rule expressed by the US Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Here, the 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 of bad faith of the prosecution. The test is whether the material evidence could induce reasonable doubt as to the verdict or tend to exculpate the defendant.

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 should focus on three essential factors;

a. Whether there was bad faith on connivance on the part of the prosecution in the loss of the evidence;

b. Whether the lost evidence was sufficiently material to the defendant; and

c. Whether the defendant was prejudiced by the loss of the evidence.

Most courts will not dismiss a DWI case when the proofs demonstrate that the loss of the evidence was merely an accident, as opposed purposeful.

In summary, if a videotape is lost in a DWI case, then the defendant will have to prove that the videotape is exculpatory and that it cannot be replaced with comparable evidence. Moreover, the defendant will have to prove that the prosecution/police did not lose the tape in bad faith.

5. What is the most important on point case when the State loses the videotape in a DWI case?

The most on point case is State v. Mustaro, 411 N.J. Super. 91 (App. Div. 2009). Here, this was an example of a Brady violation in a DWI case. Here, the police destroyed certain in-car videotape evidence of the defendant’s arrest. The defendant argued that had he known of the potentially exculpatory nature of the videotape, then he would not have plead guilty. The Appellate Division ruled that in order to establish a due process violation under Brady, the defendant must show that the exculpatory value that was apparent before the videotape was destroyed and that the defendant would be unable to obtain comparable evidence by other reasonably available means. The evidence before the court was insufficient in that it only included the defendant’s speculation that the tape had potentially exculpatory value, and it was utterly devoid of any suggestion that the police had acted in bad faith by destroying the videotape evidence.

6. What happens if the police fail to videotape the defendant?

If the police do not videotape a defendant, who is suspected of DWI this omission does not constitute a constitutional violation. There is no legal duty of the New Jersey police to create evidence by videotaping a suspected DWI driver. Thus, even if the police had videotaping equipment available and in working order, the failure to videotape the defendant would not constitute a due process violation.