Massachusetts Appeals Court Reiterates Commonwealth’s Duty to Preserve Exculpatory Evidence

In an important opinion delivered today, the Massachusetts Appeals Court reversed a man’s conviction because the police failed to preserve a video of the alleged crime that might have assisted the defense.  The name of the case is Commonwealth v. Heath.

The defendant was charged with assault and battery on a police officer and disturbing the peace following an altercation on May 29, 2013.  After entering the emergency room at a Haverhill hospital, the defendant ordered a sandwich, demanded a shower, and requested that someone do his laundry.  When confronted by medical staff, the defendant was verbally abusive.  A Haverhill police officer walked the defendant out of the emergency room and sent him on his way.  The defendant then went onto a neighboring property and refused to leave.  The same police officer responded and arrested the defendant.

In addition to his obvious emotional issues, the defendant was unable to walk without the assistance of crutches.  Accordingly, the officer did not handcuff the defendant.  In the booking room, the officer asked the defendant to remove his hat, shoes, and socks.  When the defendant refused to cooperate, the officer removed the hat from the defendant’s head.  According to the officer, the defendant then punched him in the chest and several officers responded by dragging the defendant into a cell.  The defendant denied he assaulted the cop and instead asserted that the cop had assaulted him.  There was a security camera in the Haverhill police station’s booking area that would have videotaped the incident.  The police officer who was allegedly assaulted testified he did not have access to the video, and he also never made any effort to obtain the video.  After the defendant’s arraignment, his attorney requested that the videotape be preserved by the police (and the judge allowed the defendant’s motion).  However, the defense attorney’s request was made more than 30 days after the incident and the video system had already self-purged.  The defendant asked the trial judge to instruct the jurors that they could infer the video would have been unfavorable to the Commonwealth’s case, because the cops otherwise would have preserved the video and presented it in court.  The judge refused to give such an instruction and the defendant was convicted.  He filed a motion for a new trial, which was denied by the trial judge.  He then appealed and the Appeals Court reversed his convictions.

The Court ruled the defendant had satisfied his initial burden of establishing that the video would have contained potentially exculpatory evidence.  If the defendant’s story was true, the video would have shown the cop assaulting him in the booking room.  The next question is whether the Commonwealth was culpable for the loss of the video.  The Appeals Court held the trial judge committed error in concluding the Commonwealth’s duty to preserve exculpatory evidence only kicked in when the defense attorney filed the motion to preserve the video.  Instead, the Commonwealth should have immediately recognized the need to preserve the video and should have done so without requiring a court order.  The Commonwealth’s failure to preserve the video here was negligent, according to the Appeals Court, and the judge’s refusal to give the jury instruction requested by the defendant was reversible error.   The case was remanded back to the district court for a new trial, and the judge at the new trial will be required to tell the jurors they may draw a negative inference against the Commonwealth for failing to preserve the video.

This is a really good, really important case for criminal defendants.  Not coincidentally, the police always save videos that show defendants committing crimes but often fail to preserve videos that allegedly depict police misconduct (and then plead ignorance at trial, as was the case here).  This case makes clear that if a police video of an alleged crime exists, the police department has an obligation to preserve it and provide a copy to the defense team.