Nov 01, 2016 DWI defense- Get the incident video
For DWI cases, I want the incident video if it exists. For all other criminal cases, I want the incident video unless I should first explore further with my client whether seeking the video will be the only reason that the prosecutor will himself or herself then get a video that is more damning than helpful. (However, usually I do not know the answer to that question without first seeing the video, so the instances are rare where I would not want to seek the incident video.)
In numerous instances, playing the video has spelled the difference for me between victory for my client or not. Being human, police can exaggerate, mis-state or misrepresent the incident, and the video can offset that.
Of course, video is not perfect. It does not depict what was happening before the video starts nor after the video ends. It does not show all perspectives. It can be distorted. It does not always have good images nor sound.
Sadly, I have had prosecutors claim that for Virginia District Court discovery, I am not entitled to receive video, audio, or photographic evidence, claiming that such evidence goes outside the scope of crabbed Virginia discovery rule 7C:5, which provides for discovery of the defendant’s statements and the defendant’s criminal record. However, prosecutors are not the ones who decide such matters. I simply argue to the judge at any needed discovery hearing that video typically will include my client’s statements to the police (discoverable under Virginia Supreme Court Rule 7C:5) and exculpatory evidence (discoverable under Brady v. Maryland, 373 U.S. 83 (1963).
Ordinarily, more than one review of the video is needed to pick up on the entire beneficial picture, and also to pick up on the good aspects of the incident to magnify and the unfavorable aspects to confront and minimize for the defense .
Often, police and prosecutors do not review the video evidence before trial. In one DWI trial that I won on the motion to suppress hearing part of our Virginia General District Court trial, for instance, the prosecutor had not reviewed the incident video to see that his grounds were stronger to support the police stop of my client’s car than the police officer’s testimony revealed. However, the prosecutor never showed the video in court, and the judge ruled that the police officer’s testified grounds for stopping my client’s car did not establish probable cause to stop my client, so we won the case.
Those videos often have gold in them for the defense. Many minutes can elapse before the gold reveals itself, so close attention needs to be paid by the criminal defense lawyer to videos and all other discovery.