Take Pause, Anonymous

My previous post, The Cops Show You a Picture of Yourself raised a good question from an anonymous commenter, who wrote:
Your comment "they don't have to show me the video" makes me take pause. Aren't individuals accused of criminal behavior entitled to be confronted with the evidence? Doesn't the Sixth Amendment entitle them to see the video?


Just to clarify before we go any further, I wrote in the original post, "I'm placed under arrest and they don't have to show me the video.  They can save the video for trial..."  Meaning, there is no right to see the video during the interrogation, before my arrest.  


 Let's start by taking a look at the Sixth Amendment and the Confrontation Clause briefly:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The question is referring to the Confrontation Clause, meaning the right "to be confronted with the witnesses against him."  And I agree, absolutely, that would include the right to see the video...  at trial.  The Confrontation Clause is a trial right, not a pre-trial or investigation right.  

Ultimately, if this case went to trial, you would likely see this video at trial if the prosecution was using it as evidence against you. 



Notice the two "if"s in that sentence.  


First, if the case went to trial.  If you took a plea deal, depending on the discovery rules in your jurisdiction and the timing of the plea, it is possible you would not see the video before your plea.  Some states have very late discovery (for example, everything has to be turned over before the trial begins) and certainly, some defendants take a plea bargain well before the case proceeds that far.  I think that most defense lawyers, if the video was the key evidence in the case, would ask for an opportunity to view the video before advising their client whether to take a plea deal.  On the other hand, though, I can imagine a scenario where the prosecutor says, "Look, the deal is ____ today.  Your client knows what he did.  If I have to present the case to the grand jury and turn over evidence, the offer is going up."  And, we're back to my assertion, they don't have to show you the video.  


The second "if" is if the prosecution uses that video against you.  Sometimes the prosecution has evidence that they choose not to use, particularly if there's a way to prove the case and protect that evidence.  For example, imagine that same robbery case with the video.  Let's imagine the prosecutor finds ten different people who were on the street that day.  They all come in, pick you out of a mugshot book, pick you out of a line-up, and describe you perfectly.  One of them even got a picture of you on his cell phone camera as you ran away.  If the prosecutor decides that he feels pretty confident the jury will be convinced based on these ten witnesses and the cell phone camera photo, he may decide he doesn't want to use the video and may never have to turn it over.  


On the contrary, if the prosecutor was using the video as the evidence against you, you would have a chance to confront it.  To argue to the jury, for example, that the video may have been tampered with or that the footage doesn't show what it is alleged to have shown.  The officer can't testify, "I saw the video and it showed the defendant committing the robbery," without showing the video for the jury - and letting the jury decide for themselves whether the video really shows what the officer says it does. 


Bottom line, I agree, anonymous.  It gives me pause too.  A lot of the things that police are allowed to do, and a lot of things that prosecutors are allowed to withhold, give me pause too.  Hopefully, you and all of the other readers will feel that same hesitation just between the officer asking you a question and you asking for a lawyer. 

18 comments:

  1. "Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances" Robert Jackson, former Supreme (http://en.wikipedia.org/wiki/Robert_H._Jackson)

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  2. Just to clarify--if the video contained potentially exculpatory evidence, even if the prosecutor did NOT plan to use it at trial, the prosecution would have to turn it over. And I know that I happen to practice in a jurisdiction with early discovery, and in an office that encourages turning over everything that is not truly privileged, but I would turn it over regardless of whether I was going to use it at trial or not, and regardless of whether it was potentially exculpatory. I'm not one to hide the ball, and I don't understand why any prosecutor does that.

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  3. Um, I would say they would probably have to turn it over even they're not intending to use it at trial because, depending on what's on it, a defense lawyer may be able to use it to exculpate their client or to impeach an "eye witness." So I would disagree and say that Brady and the 6tth and 14th amendments would mandate it being turned over.

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  4. Hi. I just wanted you to know that I'm really enjoying your blog. Thanks Much.

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  5. Blonde, I'm so glad you're back! I've been a fan of yours for a few years now. Just wanted to let you know... I missed you!

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  6. I agree with mominsanity, Brady material would come into play, but only if the defense counsel thinks it would benefit the client. But it's Brady material... good luck, especially if you practice in Texas, although it's getting better, no offense to Prosecutor @ 0847.

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  7. I'm not understanding where the "withhold" comes into play. I can't see a Prosecutor being able to argue with straight face that a video that depicts the Defendant committing THE CRIME is not exculpatory and shouldn't be turned over.

    Why wouldn't the prosecutor turn over the video if it is so damning? Wouldn't that compel a faster resolution to the case?

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  8. informative and useful article thanks for sharing this....

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  9. Thanks very much for sharing this post. I really enjoyed reading this blog. Please, continue to post blogs like these.

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  10. it is really a great blog. thanks for this

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  11. What if the video contradicts the witness testimony and iPhone pictures? Should they be holding that back because it hurts their case? How would you know unless they are compelled to give it to you?

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  12. What if the video contradicts the witness testimony and iPhone pictures? Should they be holding that back because it hurts their case? How would you know unless they are compelled to give it to you?

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  13. What if the video contradicts witness testimony or some camera phone picture that someone took? Should they have to provide that to you? How would you know if they were withholding evidence of your innocence otherwise?

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  14. thanks for sharing information.a web page should contain the information that

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  15. What if the reason they don't use the video is because it can be used by the defense to prove innocence.

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  16. Surely this breaches your human rights on some level. What if there was a logical explanation to the contents of the video that would make going to trial null and void saving everybody's time and the taxpayers money. Makes sense to disclose the evidence as early as possible.

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  17. Thanks for sharing information. Agree with mominsanity and prosecutor

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