The United States Supreme Court, in Brady v. Maryland, held that the prosecution must turn over to the defendant evidence that would tend to exculpate him or reduce the penalty. Thus, the prosecutor must provide evidence to the defense when such evidence would be favorable towards whether the defendant is guilty or might help reduce his sentence.
Failure to provide such evidence is a violation of the defendant’s due process rights under the 14th Amendment. However, the defense needs to establish that “some” evidence would have been favorable. This can be a difficult task but tends to be somewhat less burdensome in DUI cases. This is true because the defendant could testify about his performance on the FSTs or information could be obtained from the officer conducting the FSTs through cross-examination.
Oregon Court Addresses the Issue
The Oregon Court of Appeals directly addressed the issue of the the loss of evidence from a dash cam in a DUI case in State v. Zinsli. In Zinsli, the state unintentionally lost a video of the defendant’s performance of FSTs. In it’s ruling, the Court held:
“[T]he Due Process Clause of the Fourteenth Amendment guarantees for a criminal defendant access to evidence in the state’s possession that ‘is materiel either to guilt or to punishment’. . .To support a claim of denial of due process on the ground that constitutionally material evidence was lost, the defendant must make some showing that either the state acted in bad faith in failing to preserve the evidence or that the evidence sought to be discovered will be favorable. Where the state has not acted in bad faith, the defendant must show that the claim of favorableness is genuine, not speculation and that comparable evidence cannot be obtained ‘by other reasonably available means.'”
California v. Trombetta, 467 US 479, 489, 104 S Ct 2528, 81L Ed 2d 413 (1984). Id. at 252 “In general, the prosecution of a DUII case depends heavily on the opinion of the arresting officer in determining whether a defendant’s ‘mental or physical faculties were adversely affected * * * to a noticeable or perceptible degree.’
State v. Gaylor, 19 Or App 154, 163-64, 527 P2d 4 (1974). Here, in the absence of the videotape, a jury would have only [the arresting officer’s] interpretation of defendant’s performance of the FST’s, demeanor, appearance and speech patterns, which, as noted, were to some extent not noticeably affected by alcohol…the videotape evidence is unique because it would provide defendant with an objective video replay of the events from which a jury could draw its own conclusions ”
Clearly, the Court recognized the serious issues with a defendant’s right to a fair trial when evidence, possibly favorable to the defendant, is lost or erased, whether intentionally or not. Usually a due process violation leads to suppression of evidence. However, when the lost evidence contains favorable evidence to the defense, suppression might not be a fair remedy. The Court explained:
“The defendant may wish to use that evidence in his defense and because decisions of trial strategy should be left to the discretion of the advocate, we apply a discretionary suppression remedy. On remand, defendant may choose whether he wants the jury to hear evidence of his performance on some, all or none of the [field sobriety tests].”
The Court of Appeals, through Zinsli, allows the defense to choose what evidence from the video or audio is admissible as long as some of the lost evidence would be favorable for the defense. So, in cases in which DUI arrest dash cam videotape evidence is lost, not all value is lost. In such cases, the Court has given the defense a lot of leeway and power to pick and choose what evidence is admissible and what evidence must be suppressed. Thus, it is important to pay attention to your performance on your field sobriety tests and whether an officer is recording this interaction.