120 S. Olive Ave., Suite 402
West Palm Beach, FL 33401

Video Tapes as Evidence in Florida Criminal Cases

There is a very interesting body of law that is developing in Florida, and it owes itself to the over use of video cameras throughout the State. Video cameras are more and more “allegedly” capturing the acts of individuals, who are alleged to be committing criminal offenses. The cameras catching the acts can be mounted at red lights intersections, street corners, store fronts, governmental buildings and even on private homes. But what happens when the video is destroyed by the Prosecutor, Police Officer, Law Enforcement Officer or agency employed by the prosecuting government and the contents are still introduce by way of oral testimony to a jury? This is what the blog will answer.

The facts that give way to these Constitutional problems are easy to imagine. Take for instances Katherine Ashurst, vacationing in Islamorada, Florida with her fiance, Nigel Jackson. On the evening that the crime occurred, at around 2:00 a.m., the couple visited a restaurant, where they sat down at the bar. Hurst hung her purse over the back of her chair that contained a wallet and within the wallet was $2,500 in cash and several credit cards.

While Ashurst and Jackson where in the bar, they were approached by criminal defendant Yero. At one point, Yero stood between the couple’s chairs by Ashurst’s purse and after Yero left the area, she noticed within five minutes that her wallet was missing.

The Sheriff’s office was called and a deputy sheriff arrived on the scene shortly thereafter. After learning that the restaurant had surveillance video cameras, Ashurst, Jackson, and the deputy viewed the video footage from that evening. At trial, they testified to the contents of the video. Their testimony indicated that Yero did not at first have a bulge in his left pocket, but that, after he had positioned himself between Ashurst and Jackson with his arm near Ashurst’s purse, he had a bulge in his left pocket matching the size and shape of Ashurst’s wallet.

Their testimony also showed that Yero went outside the bar and then returned. When Yero returned to the bar, the object was no longer in his pocket. The area around the bar was searched, but the wallet was never found.

The video was NEVER played at trial, because it had been overwritten by the restaurant’s security system. The deputy described his efforts to preserve the video recording. Deputy Sheriff testified that he requested the video on the same night of the incident, but a bar manager informed him that “he wasn’t able to do it at the time, that he would have one of the managers or IT get to it.” The deputy was not informed that the recording would be automatically overwritten within five days. By the time the deputy followed up on his request approximately nine days later, he was told that the recording had been overwritten. He attempted to retrieve the video recording on another occasion, but he was again informed that the recording had been overwritten.

The defendant was convicted of Felony Theft, which carries up to Five Years in Prison, on the main piece of evidence the testimony of the video tape recording that the Jury NEVER saw! Remember the jury never got to view the video tape or actual recording, because the Sheriff allowed the evidence to be destroyed.

The trial judge allowed the deputy sheriff and witnesses to testify as to what they “remember” seeing on the video tape. This prior testimony was without the jury, the ultimate trier of fact, getting to see the quality, clarity, actions and demeanor of the parties, including the defendant on the video tape, before convicting him of a Felony Theft crime.

These types of scenarios, convicting people in Florida with testimony as to what “witnesses” remembering seeing on a video recording, without the jury ever actually seeing the video tape recording for themselves, is playing out throughout the State of Florida in record fashion.

Law Enforcement Officers, Sheriffs, Police Officers, victims of crimes, and other “interested” parties are allowed to testify in criminal proceedings, as to what they “remember” seeing in a video recording months or even years prior, without the video ever being viewed by the jury. This type of evidence violates the accused’s Constitutional Rights of Due Process, if the state’s failure to preserve the video evidence was exculpatory in nature, and the state acted in bad faith in not preserving the evidence.

In order for the evidence to exculpatory, the evidence must possess an exculpatory value that was apparent before its destruction and the defendant must be unable to obtain comparable evidence by other reasonably available. If the accused can meet this burden then a Due Process violation is shown on the face of the defendant’s merits.

But what if the accused can only show that the destroyed evidence is “potentially useful” and not “exculpatory” to the defendant? Then the courts ought to apply the bad faith test regarding governmental destruction of evidence. The bad faith test in nutshell states: “In the context of destroyed evidence, bad faith is a flagrant and deliberate act done by the government or its representatives, meaning law enforcement, with the intention of prejudicing the defense. So the analysis becomes who destroyed the video and in many instances during a criminal investigation the government will allow the video to be wasted or destroyed by a non-governmental employee, so that the level of protection of bad faith cannot be met by the criminal defendant and thus, no sanctions against the government are imposed. As was the facts in the above case scenario, which actually led to a conviction of an accused without the jury “ever seeing the evidence”!

Hiring an experienced criminal defense lawyer in a timely manner to properly and thoroughly comb through the evidence, speak with witnesses and get key pieces of evidence preserved like: video tapes, 911 telephone calls and witness statements can mean the difference between being convicted and an acquitted. If you or a loved one has been arrested or is being accused of a crime, you must hire an experienced criminal lawyer immediately. West Palm Beach Criminal Lawyer Andrew D. Stine has been protecting the rights of the accused from government abuses, like destroying evidence for over a decade. Hire Stine or Do the Time.

Share this Article

This entry was posted in Constitutional Rights, and tagged , , , . Bookmark the permalink. Follow any comments here with the RSS feed for this post. Both comments and trackbacks are currently closed.

Post a Comment

Your email address will not be published. Required fields are marked *