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Winning at trial by being in the combat moment

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Each year I take dozens of cases to trial. The exhilaration of going to trial fully prepared is tremendous, tempered by the responsibility over my client’s liberty. A huge percentage of civil litigators rarely go to trial, with their clients so often finding settlement negotiations and settlement as preferable to the high stakes of trial. A huge percentage of federal felony cases end in guilty pleas rather than trials. I have been blessed with going to trial all the time in the criminal arena, and with many trials in the civil arena as well.

Recently, I won a bench trial on an unexpected basis — due to spoliation of my client’s incident videotape — by being entirely in the trial combat moment.

Upon being hired for this Maryland drunk driving case, as always, I filed my appearance with the court and discovery demand. Soon thereafter, the prosecutor’s office sent me a form document saying that it had requested a copy of any police video and audio, to get to me after receiving any. Three months thereafter, the prosecutor’s office sent me a letter that no video existed. I could have pressed the video issue before the trial date, but my experience and intuition told me to wait until the trial date.

On the trial date, I pointed out to the prosecutor the discrepancy between the police report’s saying that the officer told my client that the encounter was being recorded by audio and video, and the prosecutor’s office’s claim of no video. The prosecutor opined that the officer had a cruiser that night without a functioning video, and said that his office sends its video requests to the police department and relies on the reply that it receives. I asked the officer about the prosecutor’s comment, and the officer said he thought his cruiser had video running, but was not sure if he was driving a cruiser that night that had no video. He also said he is not involved with when if ever video footage is erased.

We went to trial an hour later. The prosecutor asked the prosecutor what information he relied upon to prepare his police report, and the officer referenced the VIDEO OF THE INCIDENT. Hot damn! This is the same officer who an hour earlier told me he was not sure after all whether there was a video operating in his cruiser the night he arrested my client. Had I relied on a trial script from two hours ago, I would have missed this gold, which is why trial lawyers need to fully prepare for trial, and then to minimize reliance on too many notes and thoughts during trial other than what is happening right in the moment.

I told the judge that this was the first time I got confirmation that day from the officer that his cruiser’s video equipment was recording the incident with my client. I said the only remedy should be to exclude the officer’s testimony.

The prosecutor said that the officer’s car may not have been equipped with functioning video, but the judge pointed out more than once that the officer had already admitted to a video. When the prosecutor continued arguing along this line, the judge said he saw that the police report (located in the court file as a document presented to the court commissioner in determining the existence of probable cause and in setting pretrial release conditions) said that the officer told my client that the encounter was being recorded by video and audio. (Ordinarily, I would have strenuously objected to the trial judge’s reviewing the police report — because as the trial factfinder at a bench trial the judge should only consider the evidence presented by the parties and admitted into evidence by the judge — but here saw that this portion of the police report was positively registering with the judge.)

At one point, the prosecutor tried suggesting that this video issue might have been a non-issue had the defendant not continued the trial date for so long (continued because of the need to be out of the country for awhile). I retorted that this had nothing to do with the prosecutor’s obligation to avoid evidence spoliation, particularly where my client’s predecessor counsel had filed a discovery request less than three months after the incident and where I filed a discovery request immediately upon being hired to replace predecessor counsel.

The judge asked the prosecutor several questions about how often his office is unable to produce a copy of a police cruiser copy, and the prosecutor answered that such circumstances are not common. The judge ruled soon thereafter that his remedy for the missing videotape was to exclude the police officer’s testimony.

The prosecutor rested his case. I moved for judgment of acquittal, and the judge ruled my client not guilty.

Consequently, be cautious before rushing to a guilty plea. Sometimes the weapons and ammunition to victory only show themselves during trial.