Police in Texas Allowed to Destroy Evidence

Police in Texas Allowed to Destroy Evidence August 22, 2011

Here’s an appalling appeals court decision in Texas.

Drivers have no recourse if police say the tape from a dashboard-mounted video camera is not available, according to a ruling Wednesday from the Texas Court of Appeals. Mark Lee Martin wanted to defend himself against drug possession charges filed in the wake of an August 29, 2008 traffic stop, but he was told no video was available.

Travis County Sheriff’s Deputy Darren Jennings claimed that he pulled over Martin that evening because he failed to signal a left-hand turn. Within less than two weeks after the incident, Martin’s attorney formally requested that the department preserve video evidence from the stop. Subpoenas were issued to ensure “all videos and dispatch calls” would be saved. At trial, Jennings was asked why the camera evidence had not been kept.

But that was not done. And here’s why:

“Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value,” Jennings told the court.

The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video. Martin argued the police were obviously hiding evidence.

“The officers intentionally destroyed the video and thereby put exculpatory evidence as far as the search is concerned or evidence favorable to the accused out of the reach of the accused,” Martin’s attorney claimed. “We feel that for no other reason the search is invalid and any evidence found as a result of that search should be suppressed.”

The appellate court found no merit in this argument.

“We agree with the state that the record supports a finding by the district court that the police did not act in bad faith,” Justice Bob Pemberton wrote. “The United States Supreme Court has held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.'”

The court found no evidence of bad faith because the officer testified that he had “no clue” whether there even was a recording made.

“There is no indication in the record that Jennings or his supervisors handled the videotape in question any differently than they handled other videotapes,” Pemberton wrote. “Nor is there any indication in the record that the tape was not preserved because of any improper motive on the part of Jennings or other officers.”

The court concluded that failure to follow the instructions on the subpoena was not evidence of bad faith because Jennings testified that he never received the document.

This is bizarre. The court focused solely on the subjective intent of a single officer rather than on the refusal by the department in general — whoever is in charge of handling those video recordings — to follow the instructions of a court order to preserve that evidence. Intent should be irrelevant here. The police destroyed potentially exculpatory evidence, in direct violation of a court ordered subpoena. Unless those actions have clear consequences, you can bet that the police are going to routinely “lose” evidence that might exonerate a suspect.

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What Are Your Thoughts?leave a comment
  • Appalling. The best I could possibly imagine for this case would be extreme negligence on the part of the police, which I think would be a damn good reason to dismiss the search. Naturally, I suspect much worse, and think that department should be tried for tampering with and destroying evidence.

  • So, I kinda get the feeling reading this that there probably wasn’t exculpatory evidence on the tape, that this may have just been a fishing expedition on the part of the lawyer to find some element of procedure that the police failed to follow appropriately, and thereby get this client off on a technicality. (I got out of a somewhat BS ticket that I was nevertheless technically guilty of by simply requesting a supporting deposition and then showing up for court…)

    That said, it still highlights a serious problem, and I daresay that even if this WAS the case and the guy was guilty as hell, he still should have gotten off because we can’t possibly tell whether the police were hiding evidence here. Losing track of quite possibly relevant evidence and then having no reason for it, that’s bad news. Shouldn’t’ve happened, whether it was a cover-up attempt or not, and the guy has to go free.

  • Ben P

    On one level I understand why the court ruled the way it did, but on another I’ve never understood court’s hostility to spoliation of evidence arguments in criminal cases.

    There’s a close analogue in the civil arena.

    If a party can present evidence that the other side *should* have a particular piece of evidence but destroyed it or now cannot explain why it is missing, the party can seek sanctions for spoliation of evidence.

    If a defendant destroys evidence the typical sanction is for the Plaintiff to be able to reference the destruction and a judge to tell the jury they may presume the piece of evidence would have been bad.

    If a Plaintiff destroys evidence so defendants can’t look at it, the sanction is more commonly to exclude anything related to that evidence or in extreme cases dismiss the Plaintiff’s case.

    The one big exception is where there’s an established policy. Say I run a store and have surveillance cameras. My store policy is to keep the tapes for 30 days then overwrite them.

    Someone slips and falls in the store and asks for the surveillance footage.

    If the tapes were destroyed according to the policy, the Plaintiff has to prove I acted in bad faith or that the policy itself is in bad faith.

    If I had recieved a subpoena or preservation letter for the tapes and then did not pull them out of the que, could that be bad faith? I think it absolutely could.

    On the other hand, if I receive the evidence preservation letter on the 25th day, give it to my secretary and tell her “tell jim to pull the surveillance footage for the 10th,” she writes a memo and puts it in jims mailbox, Jim doesn’t see it for 4 days, and then the tapes get overwritten. That’s sufficient to say it’s also not bad faith.

    BUT, courts have been very reluctant to impose these sorts of rules in criminal cases. Our state has a similar state supreme court opinion where a police officer was writing in a notebook during particular events, then prepared a police report from his notes. Witness testimony was almost universally different from the police report, although various witnesses did not agree on details. The police officer destroyed his notes after writing the report. The defendant wanted the notes but the court held there could be no spoliation instruction.

  • MikeMa

    I work for a large corporation and routinely get emails asking me to preserve any documentation related to legal matters to which the corporation is a party. I believe this is the company’s dashcam. They expect us to act ethically and keep evidence related to legal issues to which we may be a party. They don’t ask us to keep only the good evidence, whatever that is.

    It would be much more beneficial to law enforcement to be 100% above board on these things rather than risking public mistrust over a bullshit traffic stop.

  • eric

    I’m actually surprised by this ruling. I would think that the courts would take a very harsh view of their own orders being ignored by executive branch agencies, if only out of self-interest.

    On the bigger question, we really need a third-party archive to go along with police monitoring. This should be trivially easy to set up at this point. To the cloud! (So to speak.) Its not a silver bullet but it should at least cut down on the number of illegal erasures. Hell, it might even be cheaper than the current system. Having all police cameras, being managed by a single entity rather than each police department being forced to have their own archive, might create some economies of scale.

  • Ben P

    I work for a large corporation and routinely get emails asking me to preserve any documentation related to legal matters to which the corporation is a party. I believe this is the company’s dashcam. They expect us to act ethically and keep evidence related to legal issues to which we may be a party. They don’t ask us to keep only the good evidence, whatever that is.

    There’s a whole string of cases in my state where Union Pacific Railroad got hammered on this. They had a policy that all documents got shredded in 30 days or some other rediculously short time frame and this was before it was really common practice for Plaintiff’s lawyers to send retention letters.

    Say a train hits a car and the plaintiff claims the signals were not working. Yet all the dispatch logs and the reports from the initial union pacific investigators got shredded and their response was “our policy is 30 days, we didn’t see any need to keep them.” To which they got hammered by “really? your train killed 3 people and you didn’t think the investigators reports would be important?” And the court found it was in bad faith.

    On the other hand, if there’s a documented fuckup, even an egregious one, its much harder to prove bad faith.

  • unbound

    Wow. I work for a large corporation as well. I get reminders every few months to preserve any files and e-mails related to a specific client. This is despite the fact that my actual project had absolutely nothing to do with the project that is being looked at. This has been going on for over a year.

    Very, very sad that the courts aren’t pressing the police department. And definitely not a good sign…

  • Aquaria

    You expect fairness or justice from a Texas court of criminal appeals?


    Give me a break. These are the same people who would rather die in a fire than find a death penalty case that needs overturned. They have granted new trials eight times and new sentences six times. 270 other times, they’ve told accused people to go fuck themselves.

    All the CCA does is rubber stamp convictions. They’re notorious for this.

    They’re the fuckfaces who upheld the conviction and death penalty sentence of Cameron Willingham.

    They are the lowest scum of the earth.

  • FastLane

    Maybe someone can convince Onstar to set up a system where they monitor public vehicles (since that’s one company I know of that may have the infrastructure in place already)? Having an otherwise uninterested third party whose sole job is to maintain records for a given amount of time can’t be a bad thing!

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