“Recycling” a Video before the Defense Attorney gets to see it

A little more on videos …

Back when videos were fairly new, they were being recorded and/or saved on VHS tapes.  Nowadays, they are usually digitally recorded, and there isn’t much of problem finding space to save them.  But when they were on VHS, saving lots of videos took up a fair amount of space, and VHS tapes weren’t as dirt cheap as they are now (if you can find them).

So it wasn’t completely surprising that police departments would not want to keep arrest videos indefinitely.

What was surprising was to find out, on the first court date, that the video was already long gone.

(Just to give you an idea of the process, after a person has been arrested for a misdemeanor DUI, they are usually given a court date somewhere between 30 to 60 days afterwards.  Many don’t hire an attorney until that court date is almost upon them.  It is also quite common that many people appear in court on the first court without an attorney, and the judge continues the case again, for another 30-50 days, to return with counsel.  Another common occurrence is that the defendant does not appear in court at all, and has to be brought back after being captured on a warrant.  So to re-cap, it is quite common that an attorney won’t be hired and begin working on a case until 30 to 60 days after the arrest, and occasionally even later).

Back when videos were less common, the “discovery” in a DUI case consisted chiefly of various reports and records, nothing that one would expect to disappear anytime soon.  These documents would be turned over to the defense on the first court date, as part of the State’s obligations to provide information to the accused.

So onetime around 1996 or 1997, I appeared for a first court date at the Maywood courthouse, and discovered that the western Cook County suburban police department that had arrested my client had already erased the arrest video, as part of its policy to “recycle” videotapes after the 30 days.  The problem was, my client’s first court date was on the 35th day after he had been arrested.

I should point out that prior to this point, I had no idea that there might be an arrest video.  At this time, they were quite rare.  And I was stunned that the police department would create a policy to routinely erase arrest videos on day 31, when most cases had a first court date sometime after that! Logic, and fairness, would seem to indicate that something as valuable as an arrest video should be held onto while the case was pending.

And when I say fairness, I mean fairness to both sides; of course the videos often help the defense, but, they just as often help the prosecution.  If the case was as obvious and airtight as the officers usually claim they are, then erasing the video could result in a guilty person beating the case.

Well, there were issues with my client, he failed to appear in court again, and I never had the opportunity to litigate the issue.  It was a teachable moment, however, for me as a lawyer — always issue a subpoena for discovery immediately before my crucial evidence gets “recycled.”

Amazingly however, this 30 day “recycle” policy remained in effect for years afterwards, in several of the western Cook County suburbs — even as they have now shifted to digital recordings and saving them on computer or CD-ROM is easy, inexpensive and doesn’t take up much storage space.  Recently, this issue was litigated, and a Maywood Court judge, fed up with multiple cases in which videos were “recycled,” ruled that any evidence that would have been recorded on the lost video was barred from evidence at trial or hearing. His ruling was upheld by the Appellate Court of Illinois in People v. Kladis, and has been taken up for review before the Illinois Supreme Court.  Illinois DUI lawyers throughout the state await the Supremes’ ruling on this issue.

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