Oops. The police lost the video. What now?

What Happens When The Police Lose the Evidence? 

Many burglars are not caught at the scene of the crime. Although sometimes the police may interrupt a burglary in progress and catch the burglar inside the property, it is probably more common for the property owner to arrive home or to work and see the obvious signs that the place has been burglarized – items are missing, windows are smashed, and the place is a mess. That person will call the police, and if the police conduct an investigation, they may make an arrest and charge someone with burglary based on some combination of eyewitness testimony from a bystander or neighbor, video surveillance, forensic evidence like DNA or fingerprints, and possession of the proceeds of the crime.

When the police bring burglary charges later based on some of the above evidence, there are several ways that they could end up arresting the wrong person and charging him or her with this serious felony. For example, the eyewitness testimony could turn out to be faulty; although they may seem certain, the witness may not have had such a great view. Or they may be trying to get back at someone who has wronged them. The fingerprint evidence could be misleading; the fingerprints could have been there for some other reason, or the subjective fingerprint analysis of the lab may be incorrect.

Assuming the video is clear enough to really make out a person’s face, then video surveillance seems like a pretty safe bet. If the video shows the defendant committing the burglary clear as day, then it is likely going to be a tough case for us. That's why most people would probably agree that if the police or the owner of the store have a video of the burglary, they should have to preserve the video so that the defendant can see it when deciding whether to plead guilty or take the case to trial and so that the judge or jury can see that it was actually the defendant who committed the burglary.

Unfortunately, the Superior Court disagrees. In Commonwealth v. Williams, No. 526 WDA 2016 (Pa. Super. Ct. 2016), the appellate Court ruled that the trial court erred in precluding a police officer from testifying as to what he saw on a surveillance video that was later accidentally destroyed by the store-owner. In Williams, the prosecution charged the defendant with burglarizing a pizza shop. Although no one was present at the time, store video cameras allegedly caught the defendant committing the burglary. When the store owner showed the video to one of the responding police officers, the officer apparently recognized the defendant on the video and obtained a warrant for his arrest. The officer also instructed the store owner to take steps to make a copy of the video for the police.

By the time the preliminary hearing arrived, the video was lost. The store owner testified that he had accidently destroyed all of the video while attempting to make a copy of it. Nonetheless, the officer was permitted to testify that he saw the defendant on the video at the preliminary hearing, and the defendant was held for court. As the case approached trial, the defense filed a motion to suppress the contents of the video and to preclude the officer from describing the missing video at trial. The trial court conducted a hearing. Despite concluding that the destruction of the video was indeed an accident, the trial court issued an order precluding the officer from testifying that it was the defendant on the video of the burglary. The Commonwealth, without any evidence other than the video it had lost, opted to take an appeal to the Superior Court.

Two Standards for the Destruction of Evidence

The Superior Court reversed. The Superior Court recognized that under existing case law, there are two different frameworks for analyzing whether a witness may testify about a description of lost, destroyed or missing evidence at trial. When there is some reason to believe that the evidence is exculpatory, meaning it would show the defendant’s innocence, then the Commonwealth simply may not reference the missing evidence. The defendant does not have to show that the prosecution or police acted in bad faith in failing to secure the evidence.

Alternatively, when the evidence is not materially exculpatory but is instead “potentially useful,” the defendant must show that the police actually acted in bad faith in failing to secure or destroying the video. This is an extremely difficult, if not impossible, standard to meet. The police officers will almost always be able to produce some reasonable, harmless reason for why the evidence was accidentally destroyed. The defense will have very little ability to counteract that. Further, the destroyed evidence is often going to end up in this second category of “potentially useful.” It is difficult for the defendant to prove or even allege that the video would have been materially exculpatory because the defense has never seen it!  

Because the Williams defendant alleged only that the video may have been “potentially useful,” the Superior Court reversed the trial court’s order suppressing the officer’s testimony and remanded the case for further proceedings (presumably in which the officer may testify that he saw the defendant, clear as day, commit a burglary). This leaves the defendant with very little ability to challenge the officer’s testimony. After all, how can the defendant accuse the officer of lying or making a mistake when the defense has not seen the video. Unfortunately, while this decision may seem shocking, this case mostly represents a continuation of what the law has traditionally been in Pennsylvania in regards to destruction of evidence.   

Protecting the Record for Appeal 

Barring a quick and successful appeal, there are two key takeaways from this case: the first is that if you are facing criminal charges, you need a criminal lawyer who knows the law well enough to litigate these motions as more than just an appeal to the sense of fairness of the trial judge. I suspect that even the Superior Court judges who decided this opinion would agree that this is not really fair as we think about it in a non-legal sense. But it is the law that certain standards must be met in order to justify an order suppressing evidence. Therefore, you need a criminal lawyer who will work to establish a record that will either show that the video would have in fact been materially exculpatory or that the police showed bad faith in failing to preserve it. I have not seen the record in this case, and the lawyers here certainly may have tried to do that and simply been unable to do so for reasons beyond their control. Nonetheless, it is critical that you hire a lawyer who knows and will research the law, the appropriate standards and burdens of proof, and who is truly invested in your case.

If You Are Under Investigation or Have Been Charged, Do Not Delay 

Second, Williams illustrates the importance of hiring a criminal defense lawyer immediately when you are facing criminal charges. Even if you are innocent and the police have arrested the wrong person, you cannot just sit back and assume that the store will have video surveillance footage that will exonerate you. Many times, the cameras in the store are not real or do not actually work. In other instances, the store owner or police will destroy the footage through negligence, recklessness, or in rare instances, even intentionally. In Philadelphia court, it is common for cases to be dismissed where the Commonwealth or its witnesses lose evidence even by accident. But the Superior Court does not always uphold these rulings on appeal. That is why you need a criminal lawyer who can start finding exculpatory evidence for you instead of one who will just argue that the Commonwealth’s evidence is not enough.   

Goldstein Mehta LLC: Philadelphia Criminal Defense Lawyers for Burglary and Other Serious Felonies 

If you are facing criminal charges, you need one of our Philadelphia criminal defense lawyers to take your case seriously and conduct a serious investigation. If there is the possibility of finding video from other cameras on the block or that look out from neighboring stores, we have investigators who can get out there immediately and start looking. If there is the possibility of finding witnesses who the police did not have the time to speak with or interest in interviewing, we can get out there and find them. You need a criminal defense lawyer who has the resources to get someone out there to start investigating your case to find the evidence that will show that you didn’t do it. If you are facing criminal charges in Pennsylvania or New Jersey, the Philadelphia criminal defense lawyers of Goldstein Mehta LLC can help. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session.