Court Says Cops Can't Testify In Case After Destroying Footage Of DUI Arrest

(Mis)Uses of Technology

from the if-we-can't-see-it,-you-can't-talk-about-it dept

Thu, Feb 25th 2016 11:27pm — Tim Cushing

Cops like cameras.

No, wait. Hear me out.

Obviously not on them or aimed at them.

They like automatic cameras that record license plate and location data. They like surveillance cameras aimed at citizens around the clock. They even like dashcams and body cams, provided the released footage is limited to exonerating officers of wrongdoing.

What they don't like are cameras that don't show their side of the story. A camera is inherently trustworthy -- much like a confidential informant -- until it isn't, at which point any footage captured is claimed to be devoid of "context" or unable to show "the whole picture." In some cases, the cameras don't show anything at all.

Sure, the footage may have been available at some point. But it's suddenly missing when the defense needs it.

In Illinois, this mysterious lack of footage has resulted in an exoneration.

A motorist accused of drunk driving walked away after cops in Chicago, Illinois refused to hand over video evidence of the incident. In a ruling last month, the Illinois Appellate Court said Richard Moravec was entitled not just to any dashcam videos of his arrest, but also relevant footage from the city's network of surveillance devices known as "police observational devices" or POD cameras.

Chicago has lots of "PODs" running 24 hours a day and monitored by officers. (For extra fun, scroll down the page and read the section entitled "POD Success Stories.") All footage is saved for two weeks. Obviously, if the footage is central to a criminal prosecution, the footage is supposed to be saved until the case is concluded. But when this motorist challenged his arrest, the footage suddenly couldn't be found, despite his lawyer asking for the footage to be turned over before the two-week retention period ended.

When asked for the footage, a host of technical issues appeared out of nowhere.

A Chicago police officer stopped Moravec at the intersection of Thomas Street and Western Avenue in Chicago, a location in sight of three separate police surveillance cameras. Police officials told Moravec's attorney that no dashcam video of the arrest had been found and that video taken at the police station was unavailable due to "technical issues with the video system." Finally, the surveillance camera footage had allegedly been overwritten.

The driver wasn't found not guilty, but in light of the Chicago PD being unable to produce the recordings, the presiding judge sanctioned the department by forbidding the officers involved from testifying for the prosecution. "Our word against yours" doesn't mean nearly as much when those words aren't allowed in the courtroom.

Of course, the Chicago PD felt this was too harsh and objected to the judge's sanctions, claiming it was "too heavy" in relation to the apparent misdeed. The judge disagreed.

"The correct sanction to be applied for a discovery violation is a decision appropriately left to the discretion of the trial court, and its judgment shall be given great weight," Justice Simon wrote. "The trial court gave due consideration to the fact that both the state and the Chicago police department failed to preserve the videos, even though they were timely notified to do so... Therefore, the trial court did not abuse its discretion in precluding the testimony of the police officers when the state committed a discovery violation."

This is a heartening decision considering the number of cameras in use by Chicago police officers. The granting of the defendant's motion for sanctions specifically notes that a lack of footage -- for whatever reason -- should be construed against the state, rather than accepted as something beyond anyone's control.

Following the parties’ oral argument, the trial court granted defendant’s motion in limine to prevent the testimony of the police officers and stated that “without there being explanation as to a legitimate basis for the tape not being available, that has to be construed against the State.” The trial court asserted that it granted defendant’s motion in limine and for sanctions pursuant to Kladis, a case where the supreme court upheld the judgment of the appellate court that granted the defendant’s motion for sanctions and barred the State from presenting testimony as to the events surrounding the defendant’s arrest after it was discovered that the State destroyed the police squad car’s recording of the defendant’s arrest.

This is where the burden should fall. If police departments are going to deploy an increasing amount of surveillance equipment, any lack of relevant footage should be law enforcement's burden to bear. If the agency decides it's not worth the time or money to repair malfunctioning cameras, then it should have to deal with the consequences of de-prioritizing surveillance equipment that mysteriously seems to function best only when it's exonerating officers or being presented as evidence by prosecutors.

Illinois-Camera (PDF)Illinois-Camera (Text)

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Filed Under: body cameras, cameras, destroying evidence, police, richard moravec

55 Comments

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That One Guy (profile), 25 Feb 2016 @ 11:45pm

Not ideal, but an improvement
While it's not as perfect as dismissing charges any time a camera 'malfunctions'(or in this case multiple cameras 'malfunction'), blocking police from being able to present testimony in lieu of 'mysteriously' missing footage is at least a decent move in the right direction.
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Scote, 26 Feb 2016 @ 12:04am

This is exactly what should happen every time a police camera "accidentally" fails - the testimony of the police should be excluded. They would be welcome to provide circumstantial evidence, but all direct testimony ("eye witness" testimony) from police should be disallowed. Until cops, PDs, and DA's offices suffer real consequences, these "accidental" camera mishaps will continue unabated.
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Anonymous Coward, 26 Feb 2016 @ 12:18am

The judgement seems perfect because when tapes go missing without a correct procedural reason, it throws the motives of the police department into doubt, and thus also the veracity of any police dept 'eyewitness'.
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Scote, 26 Feb 2016 @ 12:26am

I'd add that failure to video record suspect interviews and/or provide them to the defense in full, with embedded time code, should also result in the same penalty.

The FBI didn't even start recording interviews until 2014 :-O

http://www.reuters.com/article/us-usa-justice-record-idUSBREA4L0W320140522
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Anonymous Coward, 26 Feb 2016 @ 12:47am

Re:
apparently one good way to deal with the fbi was have your lawyer bring a tape recorder to the interview not only did they not record but they weren't supposed to be recorded.
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That One Guy (profile), 26 Feb 2016 @ 1:12am

Re: Re:
Clearly that's because FBI agents, much like very small particles, cannot be observed directly without changing their behavior, a trait they share with police. As a result for them to be able to act 'normally' requires the absence of an outside observer.
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Anonymous Coward, 26 Feb 2016 @ 1:44am

Re: Re: Re:
But in their defence, you don't need to observe them to know they're there. If they're coming for you, you'll know it!
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Anonymous Coward, 26 Feb 2016 @ 2:02am

It is a point AGAINST dash cams and body cans. Without them, this drunk would be in jail.
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That One Guy (profile), 26 Feb 2016 @ 2:17am

Re:
What? Had the police not 'screwed up' with regards to several cameras I'm sure the video evidence would have shown that they acted in a proper and professional manner, and the charge would have stuck. It's not the fault of the cameras that the police are so incompetent that every last one of them failed 'Preserving Video Evidence 101'.
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Anonymous Coward, 26 Feb 2016 @ 2:39am

Chicago cops
First of all, having lived, worked and visited Chicago for 40 years, I can tell you that most Chicago cops are thugs, dealers, bullies, rapists, thieves, and general assholes. The Chicago PD, top to bottom, is one of the most corrupt in the US and stays that way by routinely pushing out any halfway decent officers that accidentally join.

So there's really no surprise that these officers lied and destroyed evidence: it's what they do.

Second, Chicago cops work hard to destroy evidence all the time because they don't want to be recorded. Sometime they disable their equipment by putting the batteries in backwards; sometimes they disable it by breaking it; sometimes they try to locate and destroy other video recordings.

This is just business as usual in Chicago: cops lie, cops steal, cops rape, cops murder. It's what they do.
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MrData (profile), 26 Feb 2016 @ 4:08am

Druggies not feeling pain
One big reason cops are smart asses today is because of constant exposure to shootings and since the 80s there are drugs where suspects DO NOT feel any pain when being shot with a taser or in extreme cases even bullets.

In extreme cases it takes several bullets to take a drug addict that is lashing on a cop and he still fights while on the ground.

Therefore it's hard to tell from the cops POV who is the crazed drug addict that will decide to take a swing at them VS your life as a private citizen.
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Anonymous Coward, 26 Feb 2016 @ 4:21am

Re: Chicago cops
I expect this judge will meet with an unfortunate accident for challenging the Chicago mob...er, Police.
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annonymouse, 26 Feb 2016 @ 4:23am

Re: Druggies not feeling pain
This argument sounds so familiar. Now where have I heard that before?
Oh right. It was the excuse used by those who regularly abused animals at one time then it was those dealing with the inmates of sanitoriums.
Excuses are still just excuses for bad behavior.
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Anonymous Coward, 26 Feb 2016 @ 4:27am

Loose footage from one camera, well shit happens.
Loose footage from two cameras, you must be incompetent.
Loose footage from three or more cameras, your criminal intentions become obvious.
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Anonymous Coward, 26 Feb 2016 @ 4:44am

Isn't destroying evidence a crime?
Just sayin'.
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Anonymous Coward, 26 Feb 2016 @ 5:02am

Re: Druggies not feeling pain
Yup - better to just kill them all - amirite?
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That One Guy (profile), 26 Feb 2016 @ 5:07am

Re: Isn't destroying evidence a crime?
Oh they didn't 'destroy evidence', it's just at least four cameras all happened to suffer technological failures. At the same time. A complete coincidence I'm sure.
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Anonymous Coward, 26 Feb 2016 @ 5:22am

Re: Re:
Given that they "screwed up" with regards to a few cameras, I can't help but question if this guy really was drunk driving. There certainly seems to have been something the cops didn't want making their way into court.
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Anonymous Coward, 26 Feb 2016 @ 5:38am

The way I see it, nobody associated with law enforcement should be reviewing any video footage because they simply cannot be trusted. Their goal is to always protect police officers.

Personally, I think that civilian review boards should be set up and that all video captured via dash-cam, body cam or other POD devices should be automatically uploaded to a private server where an independent review board, free from law enforcement, can review the footage and provide it to the court under evidence.

Video footage should not be stored on any device that is maintained by the police department.
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DannyB (profile), 26 Feb 2016 @ 5:42am

Re: Druggies not feeling pain
It would seem that this would be a reason for cops to WANT cameras. To prove their POV. Their use of force against druggie enhanced super humans was justifiable.
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DannyB (profile), 26 Feb 2016 @ 5:45am

Re: Isn't destroying evidence a crime?
What about lying under penalty of perjury? False testimony in court without the video evidence to disprove it.

Oh, wait. DMCA, penalty of perjury. Nevermind those meaningless words that only have meaning when the powers that be want it to.
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DannyB (profile), 26 Feb 2016 @ 5:52am

Re:
Modern digital technology is a wonderful thing. If I understand the MPAA correctly, it is trivially easy for digital bits of video (unlike other digital bits?) to be copied to many servers quickly, easily and cheaply.

Now, supposing for a moment that this is indeed true, what if police video were uploaded to a server that distributed it to multiple servers. That way a copy of it ends up with multiple off site backups.

Police department video servers could serve as backups for other police department's video. The storage costs would be well worth it to the public.

This would also enable there to be a separate server under control of an independent review board, free from the tentacles of law enforcement, and available to the courts and defense attornies upon request.

Oh, but according to the MPAA, using a technology, say, like bittorrent to efficiently distribute video is pure evil. Nevermind.
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Anonymous Coward, 26 Feb 2016 @ 5:57am

Re: Not ideal, but an improvement
A police officers testimony should only ever be as valued as a common citizens testimony, never more than!
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Anonymous Coward, 26 Feb 2016 @ 6:57am

Re:
you're right, damn the judge for requiring the prosecution to produce evidence during the discovery phase of a criminal case! freakin activist judges always droning on about the law and how there are rules.
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Anonymous Coward, 26 Feb 2016 @ 7:00am

Re:
I'm not sure that goes far enough. Perhaps the case should just be dismissed altogether.

The fact that the defendant is the one that wants the camera footage and the cops want to hide it strongly suggests who's at fault here.
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Anonymous Coward, 26 Feb 2016 @ 7:04am

I know how the defendant could get access to the cameras. He should claim that the police were harassing him and abusing him, sue the police department for trumped up charges, encouraging them to compromise by releasing the true footage in an attempt to tone down the charges. Then he can drop the trumped up charges and just use the footage to prove the cops lied.
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JoeDetroit (profile), 26 Feb 2016 @ 7:06am

Re: Druggies not feeling pain
How about some data on that Mr. Data? Drug induced delirium along with some sort of interaction with LEAs is likely extremely rare. But I didn't make the claim, citation please.

I did do a fast Google & it seems that most of these cases the person died in custody. Huh, imagine that.
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Anonymous Coward, 26 Feb 2016 @ 7:10am

Re: Re:
I'm sure his post was sarcasm. It seems no one here can take a joke.
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Whatever (profile), 26 Feb 2016 @ 7:10am

Re: Re:
"Now, supposing for a moment that this is indeed true, what if police video were uploaded to a server that distributed it to multiple servers. That way a copy of it ends up with multiple off site backups."

Great idea, but the rules of evidence say that is just not a legal way to do it. Every offsite backup would be a security issue, with the risk of footage being made public or being altered in a manner that would destroy it's value as evidence.

"Oh, but according to the MPAA, using a technology, say, like bittorrent to efficiently distribute video is pure evil. Nevermind."

Nobody says it's pure evil if it's your video. Bad troll!
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Anonymous Coward, 26 Feb 2016 @ 7:13am

Re: Re: Druggies not feeling pain
They shouldn't take the risk! Every man, woman, and child that is walking free at this very minute is a trigger-happy psychopath, just waiting to execute cops at the first opportunity. Who are we to cast judgement on those who wear blue, of which some might open fire without true cause? We civilians never have to make instant decisions that could affect our entire lives or the lives of those around us, not once, ever, so we are not qualified to use our 20/20 hindsight to second guess every decision made by an officer of the piece. They are professionals, this a potential part of our their sworn duties, in a field where they have had literally minutes of training. Cops have families, drug addictions, and security guard jobs to get to at the end of their shift. So what if some people get killed? It is worth the peace of mind for the LEOs. Don't you care about officer safety? Surely nobody would fault you or hold you responsible if you made a snap decision that turned out to be poorly considered, based on a flawed premise, or on false assumptions. It definitely would not affect your life afterwards, and could not happen well after the fact (maybe days), and they certainly wouldn't penalize you for a mistake that anyone could have made. Really, you just need between 2 days and 2 years of paid vacation. It is really stressful out there.

yes, /s, obviously. "piece" was intentional.
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Anonymous Coward, 26 Feb 2016 @ 7:16am

Re: Re:
They should just be autouploaded to youtube and automatically made publicly available for download so that anyone can store the footage.
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Anonymous Coward, 26 Feb 2016 @ 7:23am

Re: Re: Re:
Every offsite backup would be a security issue, with the risk of footage being made public or being altered in a manner that would destroy it's value as evidence.

Especially if there's backdoors built into the encryption schemes they use. You're seriously trying to argue that offsite backups are not feasible because of security issues?

Perhaps if you supported stronger encryption that problem wouldn't exist.

Jackass.
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That One Guy (profile), 26 Feb 2016 @ 7:26am

Re: Re: Re:
I don't know about the others but given I have seen people post similar stuff in total sincerity, if it wasn't serious it was a pretty good poe.
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Anonymous Coward, 26 Feb 2016 @ 7:26am

Re: Re: Re:
"with the risk of footage being made public"

It should be made public. It's footage being taken on public property.

"or being altered in a manner that would destroy it's value as evidence."

I think you miss the point. The point is that if multiple backups are quickly made in multiple different locations, before anyone has any time to see the footage or know that there is something important occurring at a specific time that needs to be altered at a specific location before it gets copied over because the copying process it happening in real time, then any one of those backup sites would have to coordinate with every other site that has a copy of the footage in order to make every copy identical. Any discrepancies would then be regarded as evidence against the prosecution which is valuable evidence. Any delay between the time that an event occurred and the time that it was transferred over for backup would also be constructed as valuable evidence against the prosecution.

But I'm sure you're just trolling, you can't possibly be this incompetent.
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Anonymous Coward, 26 Feb 2016 @ 7:42am

Re: Re: Re:
and, really, if your argument against a backup server is that the government is so untrustworthy that it can't even be trusted to assign a trustworthy designated backup server without worrying about those backup servers being altered then how should we expect the government to be trustworthy enough to prosecute anyone? Do you really not see how your arguments work against yourself?
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Anonymous Coward, 26 Feb 2016 @ 7:51am

Perhaps even auto uploading the video to the federal courthouse servers where the courts could preserve the evidence until motions are granted.
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Anonymous Coward, 26 Feb 2016 @ 7:54am

Re: Re: Re: Re:
But I'm sure you're just trolling, you can't possibly be this incompetent.

He is.

Do you really not see how your arguments work against yourself?

He doesn't.
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Anonymous Coward, 26 Feb 2016 @ 7:55am

I wonder how those dirty cops will retaliate against the judge for going against their corrupt authority.
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Anonymous Coward, 26 Feb 2016 @ 7:59am

Re: Re: Re: Re: Re:
If the government can't even be trusted to create or assign a backup server, as he argues, then they can't be trusted to prosecute anyone.

I guess the part of his brain responsible for bringing arguments to their logical conclusions is absent.
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Anonymous Coward, 26 Feb 2016 @ 8:25am

What the hell happened? Fuck the police isn't an obscene suggestion today.
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Whoever, 26 Feb 2016 @ 8:38am

Entirely consisten
This decision is entirely consistent. Because the police destroyed the evidence, the defence is entitled to a presumption that the video evidence would support the defence's story of what happened.

Allowing police to give testimony that conflicts with the defence's story would destroy the effect of the sanction.
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Anonymous Coward, 26 Feb 2016 @ 9:35am

Memo...
Here's the latest memo that went out:

NOTICE

Do not have ANY interaction with the public at the intersection of Thomas Street and Western Avenue as this area is been deemed UNSAFE for officers to perform their duties.

Note: Other locations are being identified and will be disseminated soon.

Chief Thug
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Anonymous Coward, 26 Feb 2016 @ 9:38am

Re: Re:
I'll go farther then that, what should be dismissed is everyone involved.
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Anonymous Coward, 26 Feb 2016 @ 10:34am

Re: Re: Re:
... being altered in a manner that would destroy it's value as evidence.

Hey, dumbass, altering an offsite backup DOES NOT alter the original.
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tqk (profile), 26 Feb 2016 @ 2:02pm

Re: Re:
The fact that the defendant is the one that wants the camera footage and the cops want to hide it strongly suggests who's at fault here.

Or, great technicality! You can get a DUI thrown out by losing footage of it. I thought it would be all about the breath test or roadside "eyes closed hands out to your sides, now touch your nose" test.

How'd the camera even need to be involved?
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Anonymous Blowhard, 26 Feb 2016 @ 6:32pm

Re: Druggies not feeling pain
Are you saying that video evidence is disappearing because it's on drugs?
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Justme, 26 Feb 2016 @ 8:42pm

Walk in another mans shoes.
Let say it was the defendant that had control of the video footage and that for technical reasons it was missing..

What would the state think the proper sanction would be in that situation?
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That One Guy (profile), 26 Feb 2016 @ 9:20pm

Re: Walk in another mans shoes.
Destruction of evidence, contempt of court, any other charges the judge and prosecutor could think of... yeah, while it's nice that the guy walked thanks to what they did, they didn't even receive a wrist-slap for their actions, actions which would have resulted in pretty much anyone without a badge sitting behind bars for a while.
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Kludge (profile), 27 Feb 2016 @ 10:27am

How police cameras work
I provide tech support for one of the larger providers of these systems. You typically have 4-6 cameras inside a car all writing to one or two SSDs, usually around 500GB each. Many smaller departments run last-gen equipment (this stuff is very expensive, but the cameras are pretty amazing) - the worst part about older equipment is the extremely small volume of storage on the VPUs processing and recording the video streams, which can be as low as 64GB P2 cards.

Many departments use completely different means of transmitting video from the VPU to the backend server. Many smaller departments literally walk P2 cards or SSDs over to a dock (or physically hand it off to their IT guy) to upload manually, some transmit via WiFi when their cars are next at the PD and in range, and some use city-wide WiFi (this latter option is quite rare). You can do some other things... some giant PDs have things like mobile command centers -- big ole vans or what-have-you with backends running on them, so cars can visit the command center (maybe they all go to Chipotle for lunch or whatever), upload VPU contents to it (command center videos are then eventually merged into the primary backend), then go back to patrolling with much less risk of data loss nor the inconvenience of having to park in a PD depot.

Because it's not far-fetched that these 4-6 cameras are each recording 1080p@60fps, and if you imagine, say, 250GB total storage in a VPU, this is a very plausible (but still not acceptable) scenario if an officer is not at the PD for an extended period of time (for example, if he keeps his car at home overnight and goes on patrol in the morning instead of going back to the PD long enough for the video to upload to the backend). When storage fills up, the VPUs of most vendors will typically just start recording over the oldest footage.

Fwiw.
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John Fenderson (profile), 28 Feb 2016 @ 7:27am

Re: How police cameras work
That's not the sort of camera involved in this story. In this case, the video is from pole-mounted surveillance platforms rather than equipment carried by the cops on their person or in their car. I assume that those platforms upload their video in real time.
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Kludge (profile), 28 Feb 2016 @ 11:49am

Re: Re: How police cameras work
Ah - my bad for not reading the article fully!
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Lurker Keith, 28 Feb 2016 @ 7:41pm

Re: Re: Re:
Two Amendments to the Constitution (the 5th & 14th; apparently, once wasn't enough for the Government to abide by it) guarantee us the Right to Due Process. The Constitution also guarantees our Right to the evidence against us. These 2 Rights require that even evidence the Government isn't going to use be handed over to the Defense, at least if asked for. Failure to do so is a violation of multiple parts of the Constitution & its Amendments & must be taken seriously.

In this case, assuming the Cops weren't lying about charging him w/ DUI, the cameras would've shown the walking test & if they even bothered w/ a breathalyzer (or if they purposefully relocated out of site of the cameras). It might also show his driving, depending on where the cameras pointed, showing if there was even grounds for a stop.

Those cameras could be everything to the Defense, & probably were if the City lost them. Due to all this, the Court is right to assume they'd be everything for the Defense.
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Coyne Tibbets (profile), 10 Mar 2017 @ 11:16pm

Re: How police cameras work
I don't think that serves to mitigate loss of evidence.

There are procedures in place to allow video evidence to be retained for use against a suspect. When that is done, it actually makes the camera video evidentiary for every crime it records.

To put it simply: the police don't get to decide the recording is evidence for this crime and not for that crime; it becomes evidence for every crime. That's because the Constitution does not allow the police/prosecutor to pick and choose which evidence the defense can see or bring to court.

Such a procedure as you describe would be incompetent. Because you can bet the officer would drop off the recording of a guy-who-hit-an-officer (for example). If the officer can and will do that, but shrugs off the DUI-arrest recording, well the officer becomes a decider of which evidence the defense can see.
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Randolph A. Jackson, 21 Sep 2017 @ 2:01pm

Re: Sheriff K-9 unit Offieer founf to be untruthful. Arizona YCSO
I was stopped as a passenger by Yavapai sheriff in Arizona 3 plus years ago they all had k-9 unit pattrol vehicles armed with the Watch guard in car security system. Eight patrol car cameras four Ofiicer with body mic's and Four Event re call watchguard Dash cam with hard drives and they said I asssaulted an Officer and tried to kick him in the number two lane of traffic. I requested for the Audio and video in the arraignment and my attorney filed a motion for all Brady material audio and video evidence to be presevered early on. In open court the StaTe Assistant County Attorney "Yelled no Dash cam evidence! Now after the Yavapai Sheriff Department Denied they had any WatchGuard Equipment! I found out thru FOI they were not being honest. A P>I> By the name of Robert Baker approached Yavapai Sheriff Department and they told him also they had no such WatchGuard equipment too. Now the State want my discovery request denied and claims all Watchguard hard drives from all four patrol cars were overwritten after deliberately dnying the Audio and video taped evidence to be disclosed. Yhe Deputy Randy evers was found not to be twelling the truth about the use of his audio and video equipment in May 20016 yet the Prosecutor used him as a credible witnes in my evidentiary hearing in July knowingly soliciting perjured testimony........I have been denied to examine and inspect the Meta Data inspect the patrol vehicles Watchguard hard drive maintenacne records as guranteed by the 6Th. Amendment. One Judge there told me I could'nt confront Deputy Randy Evers on the Stand! and dismissed him after she allowed me One question! I aske Deputy Randy Evers why his Affidavit versus his grand jury testimony was inconsitent? The Judge Jennifer Campbell dismisssed Deputy Randy Evers and he did not answer. They retirede Deputy randy Evers and refuse to turn over his Personell file. I have had over eight Lawyeers. All were i9n Collusion to deny my Brady right tpo exculpatory evidence, I need help with a real Cousel in Criminal and civil Law In Arizona. They left out the July findings intentinally until I exposed it to the Judge Bluff ...Plaese Help!
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