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, 436440, 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.
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