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Angiulo: What Happens When Evidence Goes Missing

Monday, May 02, 2016


There is a tremendous amount of surveillance around us. Nearly every business has a camera or two and just think about the power of your smartphone. Audio and visual recordings of incredible quality can capture nearly any experience. Members of law enforcement are also known to record an event or two.  This is especially true when it comes to interactions within police departments.  Recordings from inside a police department are sometimes referred to as booking videos and can be important pieces of evidence.  

In the case of Commonwealth v. Heath , a person was charged with Assault and Battery of a Police Officer arising out of some incidents allegedly occuring at the Haverhill police station.  The exact who, hows, and whens of the allegations are not the primary focus of the case.  Perhaps the most pressing issue is that the alleged incident had been caught on surveillance, but the recording was not preserved.  At trial, the court did not instruct the jury regarding this missing piece of evidence.

There was no dispute that a video had been created and not preserved. The question presented to the Appeals Court was “what does it matter?”

The defendant's argument was that any video of what happened in that room would have proven he was not guilty.  The legal term for this kind of evidence is exculpatory evidence. When exculpatory evidence is either lost or destroyed, a defendant may be entitled to some kind of corrective measure. In Heath, the Appeals Court evaluated the legal standard in these situations.

First, a defendant must usually show the disputed evidence was exculpatory. Simply saying it doesn't make it true. The court in Heath, for example, explained that some concrete evidence must be presented creating a reasonable possibility that the video would have been favorable to the defendant.  

If that first hurdle is cleared, the court will then balance out certain variables to decide what to do next and what kind of remedy is appropriate in a particular case. Those variables include the culpability of the Commonwealth, the materiality of the evidence, and the potential prejudice to the defendant. 

A culpability analysis is, explained another way, an evaluation of how bad an action was. Was it negligence, a mistake, or was it an intentional act of bad faith?  In the context of exculpatory evidence, it doesn't have to be an underhanded deed to assign culpability.  As the Heath court explained, the simple failure to preserve that video was a culpable act because it was negligent.  At one level it makes sense because to find any other way would essentially allow the government to avoid its constititutional responsibility to turn over exculpatory evidence by permitting destruction without consequence.

As you can imagine, since the video in Heath was a) exculpatory, b) had not been preserved in violation of constitutional obligations, and c) provided direct evidence regarding the central question of fact at trial, something needed to be done.  The correction, ordered by the court, was a curative instruction for the next jury who heard the case.  That instruction would permit a negative inference against the Commonwealth, but would allow the jury to decide what, if anything, the missing video meant.

Given the facts presented, the Heath court seems to strike a balance for both defendants and representatives of the Commonwealth.  By requiring an instruction that explains the law of exculpatory evidence, but leaves the ultimate finding to the jury some would say the Constitution is ultimately served.  Remember that every case is different and the correct remedy may change with more significant evidence of culpability or less material evidence going missing. 

Leonardo Angiulo is an Attorney in the city of Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] and found on the web at www.angiulolaw.com


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