What To Do When State Fails to Preserve Audio/Video

Move For a Discovery Sanction – Suppression of Evidence Is and Should Be Required When the State Fails to Retain Video

In 2011 the Illinois Supreme Court decided People v. Kladis, an important case which every criminal defense attorney should know. In Kladis, an officer had arrested the defendant on a misdemeanor DUI charge. Five days after the defendant’s arrest, defense counsel filed a petition to rescind statutory summary suspension as well as a Rule 237(b) Notice to Produce at Summary Suspension Hearing.People v. Kladis, 355 Ill.Dec. 933, 935 (2011). The Notice specifically requested “any and all video tapes of defendant” while in custody. Id.

The Northlake police department had an internal policy that all videos were purged within 30 days of arrest. Despite receiving the request within 5 days of arrest, no copy was ever provided to the defendant and the video was subsequently purged on day 30. The lower court noted that the State was placed on “clear notice” that the defense wished to have the video, that the video was an “important piece of evidence,” and imposition of a sanction was proper. Id. at 936. The Court ruled that the arresting officer was precluded from testifying as to anything that occurred five seconds prior to the start of the video recording until the arrest of the defendant when the video was turned off. Id. at 942. However, he was not precluded from testifying as to any events prior to or after the specified time, including previous observations of the defendant driving or her statements subsequent to arrest. Id.

The Supreme Court noted in Kladis the importance of squad car video in recent years. The Court mentioned that pursuant to 720 ILCS 5/14-3(h-15), an exception to the Illinois Eavesdropping Statute, law enforcement are required to preserve videos made in connection with law enforcement functions for a minimum of 90 days. Kladis, 355 Ill.Dec. at 940. Additionally, when “the recordings…are made as a part of an arrest or…are deemed evidence in any criminal, civil, or administrative proceeding” they cannot be destroyed except “upon a final disposition and an order from the court.” 720 ILCS 5/14-3(h-15). The statutory language is clear in that “under no circumstances shall any recording be altered or erased prior to the expiration of the designated storage period.” Id.

It is important to observe that the statute does not restrict its applicability to only State police officers, but rather discusses “the law enforcement agency that employs the police officer who made the recording.” Id. It should be noted that, at present, only Illinois State Police officers are required to make video and audio recordings of each officer’s full encounter with a person during a traffic stop. 20 ILCS 2610/30(c) and (e). Many other law enforcement agencies also possess and use video and audio recording, and Kladis clearly extends the preservation and production, upon request, to those agencies who possess and use video and/or audio gear.

The importance of the video evidence was made clear by the Court in Kladis. Video surveillance evidence from a squad car assists in the truth seeking function and provides objective evidence that could be beneficial to both the state and the defense. Kladis, 355 Ill.Dec. at 940. That’s why the Court agreed with the previous sanction of not allowing the officer to testify to anything that occurred during the video encounter. In the eyes of the Court, the sanction was narrowly tailored to bar the State from introducing evidence from the video. Id. at 942. The officer was not precluded from testifying as to events prior to or subsequent to the video recording. Id. It is important to note here that the court mentioned that this sanction was properly choosen from “the spectrum of available options” without ever enumerating what alternative sanction may be applicable. Id.

In People v. Schroeder, the decision in Kladis was further explained. Like Kladis, Schroeder included a situation in which defense counsel attempted to exclude video evidence that had been destroyed by the State. People v. Schroeder, 360 Ill.Dec. 942, 944 (2012). However, defense counsel never made a timely request for the video evidence and the 90 day period of retention had already past. Id. The court found this situation distinguishable from Kladis in that the State had not been on notice that defense counsel wanted the video. Schroeder was simply not a situation “where defendant requested evidence and the State subsequently destroyed it.” Id. at 950.

If anything, Schroeder does not modify the holding in Kladis, but rather codifies it. The main function of Kladis is to place an appropriate discovery sanction on the State when, with notice, the State fails to maintain the in-car video evidence for the statutorily required period. In Schroeder, defense counsel failed to timely request the in-car surveillance video prior to the 90 day purge. Therefore, it was not an abuse of the discretion to deny defense’s motion to exclude evidence that would have been found on the video recording.

However, what about situations where a defendant is recorded while in a booking video? The statute cited by Kladis discusses patrol car video recordings specifically, not necessarily booking video. 720 ILCS 5/14-3(h-15). However, is the reasoning behind the Kladis decision inapplicable to other forms of video surveillance? Once again, video evidence provides objective, concrete evidence that may be beneficial to both the State and the Defendant.

Take the example of a DUI case. In the booking room, the video would likely show the continuous 20 minute observation period required prior to giving an evidentiary breath test. The video would show if the accused ever regurgitated, inserted anything into his or her mouth, or was properly observed for the required 20 minutes to eliminate the possibility of mouth alcohol. Requiring preservation of the booking video would serve all of the same functions as preserving the in-car surveillance video.

The prosecution’s argument may be that the video is not required in order to lay the proper foundation for the evidentiary breath test. That unlike patrol car video, there is no requirement that booking room video be retained for any set statutory period before it is purged. However, the argument for retention of the video remains valid. It contains evidence which may be beneficial to the accused or the State. If such evidence exists, and subsequent to a request by the defense, it is destroyed, discovery sanctions would be appropriate. It would then be up to the trial court to determine if suppression of the video was warranted or possibly impose other sanctions.

As the Court in Kladis reported, the trial court chose the narrowly constructed sanction of prohibiting the State from offering testimony on anything the destroyed video would have shown. Kladis is some precedent for that particular remedy. The Supreme Court approved it as not abusive of the trial court’s discretion in fashioning an appropriate sanction. Further, the sanction is supported by logic. Harsher remedies, such as the dismissal of the State’s case, or remedies which allow testimony of events which would have been portrayed on the video, are unfair, poorly measured and inappropriate.

Effective Illinois DUI lawyers must file an Illinois Supreme Court Rule 237(b) request for all video and audio relating to the client’s arrest, detention, questioning, field sobriety tests, and evidentiary breath and/or chemical testing and move to exclude testimonial evidence of facts and events which would be shown on missing audio and video.