HAMILTON COUNTY, OHIO

Transcription

1 HAMILTON COUNTY, OHIO State of Ohio : CASE NO.: PLAINTIFF : JUDGE: -vs- : DEFENDANT : : MOTION TO DISMISS Now comes Defendant,, by and through counsel, and hereby moves the Court to dismiss the charge pending against in this action because has been denied rights to due process under Article 1, Section 10 of the Ohio Constitution, and under the Fifth and Fourteenth Amendments to the United States Constitution. The State failed to preserve the video recording from the scene pursuant to s Demand to Preserve Recordings from Scene and/or Station, even though it had notice that this recording existed and was the basis for the Complaint. Second, the State committed a Brady violation by failing to produce the exculpatory video recording. This motion is supported by the attached Memorandum of Law. Respectfully Submitted,

2 FACTS MEMORANDUM OF LAW A. The charge pending against Defendant should be dismissed because the State failed to preserve the video recording from the scene pursuant to Defendant s Demand to Preserve Recordings from Scene and/or Station. The First District Court of Appeals has stated that [a] defendant has a constitutional guarantee to access to evidence. The state's failure to preserve materially exculpatory evidence or its destruction of potentially useful evidence violates a defendant's due-process rights under the Fourteenth Amendment to the United States Constitution. State v. Benson, 152 Ohio App.3d 495, 498, 788 N.E.2d 693 (Ohio Ct. App. 2003). Although it is normally the burden of the defendant to prove that destroyed evidence was materially exculpatory, when the defendant moves to have the evidence preserved and the state destroys the evidence, the burden shifts to the state to show the inculpatory value of the evidence. Id. In State v. Anderson, the First District found that the defendant s dispute with police testimony regarding facts-at-issue was enough to require dismissal of his charges, because the police videotape would have been the only objective evidence of the incident. State v. Anderson, 1 st Dist. Hamilton No. C , 2006-Ohio Even when evidence is destroyed as a result of normal procedures, courts have held that if the defendant moved to have the evidence preserved prior to the destruction, it is the State s burden to prove that the evidence was not exculpatory. State v. Benton, 136 Ohio App.3d 801, 805, 737 N.E.2d 1046 (2000).

3 The State may not escape accountability for the destruction of evidence because it was performed by a third party. The Supreme Court stated in Strickler v. Greene that prosecutors have a duty to learn of favorable evidence known by third parties acting on the government s behalf. Strickler v. Greene, 527 U.S. 263, 281 (1999). Furthermore, like the defendant in Anderson, disputes the characterization of the incident, and a videotape from the scene would be the only objective evidence of the incident and s only impeachment tool to disprove s testimony. Based on the State s failure to preserve evidence as set forth in s Demand to Preserve Recordings From Scene and/or Station, the State now has the burden of proving that the video tape was not exculpatory. If the State is unable to do so, the charges must be dismissed. B. The State committed a Brady violation when it failed to provide the exculpatory videotape to Defendant. The United States Supreme Court held in Brady v. Maryland that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Supreme Court subsequently elaborated that prosecutors are not required to have knowledge or possession of the evidence to commit a Brady violation if a party acting on behalf of the State has knowledge or possession of the evidence. Id. at note 5. Exculpatory evidence is defined as evidence that possessed an exculpatory value that was apparent before the evidence was destroyed, and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).

4 In this case, the State has failed to provide the video recording of the incident. «lastname» argues that the videotape would have shown that he did not commit the charged theft offense. Objective evidence of the incident would be material to s guilt. Neither nor his attorney were given the opportunity to review the videotape, even after requesting that the videotape be preserved. contends that the exculpatory value of the video recording would have been apparent before the video recording was destroyed if would have been given the opportunity to view it. The video recording was also of such a nature that is unable to obtain comparable evidence by other reasonably available means. As mentioned earlier, the First District has found that a videotape can be the only objective evidence of an event and is unique and not obtainable by other means. State v. Anderson, 1 st Dist. Hamilton No. C , 2006-Ohio-1568 at note 3. Because the State failed to provide the video recording to Defendant and the video recording constituted exculpatory evidence, the State committed a Brady violation and any evidence related to the contents of the video should be suppressed. For the foregoing reasons, the State violated Defendant s constitutional right to access evidence when it failed to preserve the video recording of the incident. filed a Demand to Preserve Recordings From Scene and/or Station, the State was on notice that the recording existed and was the basis for the Complaint, and the video recording was subsequently destroyed. As such, it is the State s burden to prove that the evidence was not exculpatory. Because the First District has held that disputed testimony between the prosecuting witness and the defendant is enough to overcome the State s argument that the evidence was not exculpatory, and disputes s position, Defendant respectfully requests that this court dismiss the charges against.

5 Respectfully Submitted, CERTIFICATE OF SERVICE I hereby certify that a copy of this document was served upon the Hamilton County Prosecutor/City of Cincinnati Prosecutor on by: Ordinary Mail Fax Hand Delivery Dedicated Drop Box