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November 1999 .10% Solution By Steven Oberman; James A. H. Bell
James A. H. Bell, a former Director of NACDL, is Vice Chair of the Bylaw and DUI Advocacy Committees. In private practice in Knoxville, he is a Past-President of the Tennessee Association of Criminal Defense Lawyers (TACDL). A founding member of the National College for DUI Defense, he is a member of The Champion Advisory Board. Effective Use of Police Videos in DUI Defense In many jurisdictions around the country, law enforcement agencies have recently installed, or are planning to install, video cameras in police vehicles to record on film the officers’ contacts with the citizens. As an added bonus, most equipment also captures the audio portion of the officer/citizen interaction. Our focus is on those cases where a police agency uses a video camera to record the contact between the officers and the citizen. Video tapes are a powerful weapon that a skilled lawyer can use to the defendant’s full advantage to defeat the elements of the prosecution’s case. As we’ve said before, driving while intoxicated is one of the few crimes in America where a citizen may be arrested and incarcerated based solely upon the opinion of a police officer. Most law enforcement officers come to court on a DWI/DUI prosecution weeks or months after the officer’s contact with the citizen. During that interval, the officer has participated in many other arrests, investigations, etc. To the officer, the arrest of your client is just another day at the office; to your client, however, it is one of the most cataclysmic events in his or her life. Given the importance of the case to your client and the effect of elapsed time on the officer’s memory, details become essential for the defense of the case. We hope to provide you with a step by step guide to effectively using video tapes and their audio counterparts in defending your client. Step 1 Learning About the Agency’s Policy on Videotaping In any jurisdiction where a law enforcement agency uses in-car cameras (or any other system) to make audio and/or video recordings of police/citizen contact, it is essential that you first obtain a complete copy of the agency’s written policy regarding the use, maintenance, calibration and operation of the equipment. Depending on the agency, that policy may be written as one of the agencies “General Orders,” or it may be a completely separate policy. Either way, one of the first things to look for is whether the policy subjects the officer to discipline in the event that he violates the policy. For example, one local police department makes the failure to follow its policy a “dereliction of duty” on the part of an officer. Obviously if there is a provision of this type, you need to pay careful attention to every requirement in the policy and every detail of your client’s video. Any deviation by the officer needs to be addressed during a close and careful cross-examination. These in-car recording policies establish law enforcement guidelines that provide for the “proper” use, care, and maintenance of the equipment as well as providing rules for the use in collecting and documenting evidence. Step 2 Requesting a Copy of the Tape You must determine who is the “keeper of the tapes” at the law enforcement agency. There may be more than one person, depending on the situation. For example, there might be one person in charge of storing/cataloging the video tapes as the officers turn them in, a second person in charge of maintenance and calibration of the cameras and recorders, and a third person who you need to contact in order to have a tape duplicated. You should also determine the duplication costs, and whether you must supply a tape for duplication. Most agencies will charge about $50 for duplicating a particular tape. Once you know who and what to ask for, as well as what the agency requires, defense counsel can prepare a form letter so that a uniform request can be made in every case. Always explain up front to your clients the involved expenses. If the agency refuses to produce the tape for reproduction or viewing, you can always subpoena the custodian of the video records to court and require that the original tape be brought to the hearing. You should also develop a system within your own office to preserve, categorize and maintain the duplicated tapes you obtain from the police department. Simply placing the tapes in the file can be quite cumbersome. We suggest that you dedicate a shelf in an office or library, a file drawer, or even a storage box as “the place” to store video tapes. Prepare a checklist so that whenever the tape is removed, whether by the lawyer, an investigator, or transcriber, tracking the tape can be as easy as finding a library book. Step 3 Transcribing The Tape Find someone who can fully, completely, and accurately transcribe every spoken word during the relevant portions of the tape. It is very important that this transcription be keyed to the time clock (down to the second) which most of the video systems imprint on the tape recording. The transcription should also reference other relevant sounds on the audio track as well as pertinent gestures or activities. A complete transcription may contain some worthless material, but you cannot truly know what is valuable and what is not until you have seen every detail and fully investigated the case. For instance, one of the authors had a situation where the breath test operator testified at a hearing that, in compliance with departmental procedure, he actually watched the defendant, face-to-face, for 20 minutes prior to administering a breath test. The video tape, however, only showed the officer watching the defendant for approximately seven or eight minutes. The tape then showed that the officer left the defendant and spoke to other officers who were on the scene; he was actually absent from the police vehicle for approximately three minutes before returning to observe the defendant. Under Tennessee law, the .21% breath-alcohol test result was ruled to be inadmissible because of the officer’s failure to properly observe the defendant. Moreover, the tape successfully impeached the breath test operator as a witness. Step 4 Reviewing the Tape After obtaining the complete transcription, you should personally review the entire tape along with the transcription. You are not only looking for all of the details that are on the tape that are pertinent under the existing laws in your jurisdiction, but you should also watch very closely for what is not contained on the tape. Furthermore, if the video tape cannot be located, or if the audio or video portion of the tape is not useable, an argument exists that this is equivalent to the loss or destruction of a taped statement of a witness to which a defendant is entitled under the Jenks Act,1 or the state equivalent. If the missing evidence is known to have been favorable to the accused or a material matter, the good or bad faith of the police is not relevant.2 We suggest the record custodian sign an affidavit relating, in essence, that the tape was lost or misplaced. Otherwise, subpoena the custodian to the hearing or trial. A similar situation occurs if the field sobriety tests or other relevant conduct occurs off-camera. Here, the failure of the police to preserve evidence which is potentially useful to the defendant may constitute a denial of due process if the defendant can show bad faith on the part of the police.3 Careful review of the video tape may reveal that more than one officer was dispatched to the scene and therefore, there might be different angles or different tapes provided by cameras in the other vehicles. Unless you view the tape(s) closely, you will not know to ask for these additional video tapes. You may also find that one officer’s microphone may be on while another officer’s microphone may be off. Obtaining an additional tape may disclose, as impeachment material, statements that the officers were trying to hide by talking outside the audio range of the primary officer’s vehicle. When reviewing the law enforcement video, keep a sharp eye out for potential witnesses or exculpatory evidence. The authors have discovered the identity of passers-by who have been used to impeach the officer’s testimony of actions not captured on video, as well as to render an opinion contrary to that of the officer regarding the suspect’s level of intoxication. Additional factors to look for in the video include: (a) Determining whether the client is concerned about his/her safety; e.g., where tractor-trailers whiz by at 65 mph while your client stands on one leg. (b) Determining whether your client is appropriately dressed to be exposed to the elements while taking the field sobriety tests; e.g., the officer is wearing a heavy jacket while your client is wearing only a t-shirt in 30-degree weather. (c) Determining whether the Administrative Procedures of the National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Tests4 were followed. The tasks, for example, should be performed in a well lit area which is dry and level. (d) Determining whether the officer’s instructions and scoring complied with NHTSA guidelines. Without a careful examination of all of the details both on and off the tape, you may never get the whole picture of your client’s arrest. (e) Comparing the synchronization of the “video clock” with the “breath test device clock” to determine compliance with the requisite observation period. Even if the defendant may actually be observed for the requisite time period, an argument exists for at least plea negotiations that the requisite observation time period was not met. (f) Determining whether the requisite warnings or advice pertaining to a requested chemical test were properly provided to the defendant. This might affect the admissibility of the results, or the fact of refusing the chemical test. A defendant in Tennessee, for example, must be properly informed regarding his rights to refuse a chemical test for intoxication, and the sanction that might follow from refusal to take the chemical test. Step 5 Preparing the Tape for Court Additional steps need to be made to effectively use the tape for cross-examination purposes. The tape obtained from the law enforcement agency can be used as a “master tape” to create cross-examination vignettes. We recommend that you make from the master tape a copy which edits all but the exculpatory evidence, whether stated by the officer or the defendant, or in the form of actions (i.e., successful performance of field sobriety tasks). A final edited version should be made of all the field sobriety tasks that do not conform with the NHTSA manual. Another edited version should be made of all the portions of the video that contend with the issue of probable cause or one of the elements of the charged offense. Once that homework is completed, you are then in a position to prepare for a hearing, whether it be a motion hearing, preliminary examination, or trial. Step 6 Using the Tape for Plea Negotiations It is all too tempting for defense counsel to disclose the exculpatory portions of the video to the prosecutor during plea negotiations. Yielding to that temptation may be unwise. It has been our experience that neither the prosecutor nor the officer will take the time to fully review the tape prior to hearing or trial. Instead, the prosecution will normally rely on the officer’s notes and reports to prepare for trial. If defense counsel alerts the prosecution of the frailties of their video evidence, the prosecution may attempt to remedy their problems through witness explanation. Additionally the prosecution may then better be able to focus on inculpatory portions of the tape. The best time to reveal the video to the prosecution is after cross-examination where there exists a minimal opportunity for cure or explanation. Step 7 Using the Tape in Court When using the tape in court, we suggest the following guidelines for effective cross-examination. First, be absolutely and completely patient. It is all too tempting after hearing the direct examination of the police officer to confront the officer with the tape at the outset. Conduct a full examination of the law enforcement witness that you know to be fully and completely inconsistent with what is shown on the video. (“The defendant fumbled with his license”; “the defendant had to lean on the side of the car for support”; “the defendant staggered as he exited his vehicle”). Ask the witness to explain his statements. Normally this would violate every rule of cross-examination, but here you already know what the video shows. For example, in a situation where you know the video shows your client standing without assistance for the whole time he or she is on the tape you might ask the question, “Officer, you testified on direct examination that the defendant could not stand without leaning on something for support. Will you please tell the court on what the defendant leaned, and at what point in time he was leaning?” This allows the law enforcement witness to fabricate the details and create easily impeachable testimony. These made-up facts in his or her testimony will devastate the prosecution when they are later exposed by the tape for the lies they really are. Only after you have set up the officer are you ready to have some fun. Introduce the edited tape or tapes you have made. For example, you might introduce an edited portion of the videotape showing your client exiting their car without assistance and standing straight up, not leaning on any car. By not using the master tape, you may prevent the prosecution from requesting the judge to play the entire tape of the case under the evidentiary Doctrine of Completeness. While there will be some parts of the tape that are exculpatory, there will also be some parts on the original “master” version that may hurt your client. By making your own edited version, you can control the damage the tape does to your client and insure that the finder of fact sees all of the exculpatory sections of the tape as emphasized in your cross-examination. We suggest you have the officer watch the portion of the tape on which you previously cross-examined him before you once again ask him questions. To return to our example, after having the officer describe the way your client had to lean on his car for support, show the officer the portion or portions of the tape that show your client standing up straight with no support. Pause the tape at a spot where you client is standing without leaning on the car so that your client is staring the officer-witness in the face. Then impeach the officer about previous testimony and the details which the officer essentially fabricated. When circumstances allow, we like to use a straight edge (a legal pad will suffice) to hold next to the image of our client to emphasize just how straight he or she is standing during the encounter with the officer. These same methods may be used to not only impeach the arresting officer, but also any other witnesses you have discovered to have been present at the scene, but who do not appear on the video. For example, a second officer or a civilian witness who came to the scene but stayed behind the camera may testify about your client’s behavior. Once again, set them up, and then impeach them. Easily Proving Police Perjury When video tapes were first introduced to our jurisdiction, we were most concerned that our defense of the citizens accused would become much more difficult. To our chagrin, however, we have found that by spending more time investigating the case through the effective use of the police vehicle video, our credibility with the courts is much higher. We have found the methods discussed here make proving police perjury easy. We are now often able to prove almost unequivocally that the officers either did not have the necessary reasonable suspicion to initially stop our clients or that our clients’ ability to drive was not chemically impaired. Even in the worst of our clients’ cases, we have had success of obtaining dismissals of DUI/DWI prosecutions on due process grounds arguing the state cannot convict, with false evidence.5 We hope this article assists you in gaining the same success. Notes 1. Jenks v. U.S., 353 U.S. 637 (1957); Fed. R. Crim. P. 26.2; 18 U.S.C. § 3500. 2. See Brady v. Maryland, 373 U.S. 83 (1963). 3. See Arizona v. Youngblood, 488 U.S. 51 (1988). 4. See generally, U.S. Department of Transportation, National Highway Traffic Safety Administration, DUI Detection and Standardized Field Sobriety Testing. 5. See Napure v. Illinois, 360 U.S. 264 (1959). * * *
John Henry Hingson, III POBox 1448 Oregon City, OR 97045 Phone (503) 656-0355 Fax (503) 656-0415 | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
