Texas Appeals Court: Motorists Have No Right To Potentially Exculpatory Dashcam Footage

Monday, August 15th, 2011

This is pretty incredible:

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.

“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.

Relevant excerpt from my Reason piece “The War on Cameras”:

Last March, Justice Lee Ann Dauphinot of the Second Court of Appeals in Texas complained in a dissent that when defendants accused of driving while intoxicated in Fort Worth challenge the charges in court, dash-camera video of their arrests is often missing or damaged. “At some point,” Dauphinot wrote, “courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for.”

Well I guess they are addressing it, now. They’re giving cops a how-to guide when it comes to destroying dash cam footage that makes them look bad, or that could exonerate a motorist: Just make it look like you’re incompetent, not malicious.

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63 Responses to “Texas Appeals Court: Motorists Have No Right To Potentially Exculpatory Dashcam Footage”

  1. #1 |  JC | 

    You guys have to understand THERE IS NO LAW that requires the preservation of evidence PERIOD….. If you start to study the law, you will find convictions on sketch evidence and then appeals where the evidence was lost, improperly kept, or thrown out. This is a critical lapse in our DUE PROCESS rights and it needs to be fixed. Frankly its evidence tampering and fraud at a minimum. If you are on a jury and you hear this nonsense, do the right thing and acquit the defendant. If enough people do this, they will fix the law.

  2. #2 |  Adam Evenson | 

    Well, folks, you are learning that judges do not exist to see that citizens are accorded due process of law and other various constitutional guarantees, but courts exist for the sole purpose of preserving the status quo, whatever that may be. Courts have always leaned toward the direction that police are more important to government than the citizen (or We, the People.) Welcome to the real world, folks, it’s all about government versus citizen, in which the government sees itself as “We, the People” and sees the citizen as the enemy. Always has, even when Abe Lincoln was walking around.

  3. #3 |  brady | 

    we are quickly coming to the end of the road. it is time for every single human out there to sacrifice some of our necessity money to purchase and INSTALL multiple port audio/video cameras THAT UPLOAD DIRECTLY TO A HOME COMPUTER. That way, once they find the cameras and try to destroy the evidence, it is too late, it is already captured. MAYBE ONE DAY we will have some kind of network app available by subscription that when any subscriber first sees the punk police hit their lights, the subscriber turns on the app and the GPS goes out to all other nearby subscribers who will know where to immediately go and start filiming as witnesses. bastards like these judges need to be stripped from OUR offices. WE THE PEOPLE OWN those offices, they only occupy them term to term, AT OUR WILL. Study QUO WARRANTO. Study how to file CRIMINAL CHARGES on cops, prosecutors and even judges. I know. They presently, only rarely prosecute each other, but if MADE TO DO SO, by enough people DEMANDING IT!

  4. #4 |  Rob | 

    The man that invents the motorist’s Cop Cam is going to be fucking rich.

  5. #5 |  Guest | 

    Quoted from “theterrible1” above:

    “…dash-cams are hooked up to a hard drive. A HARD DRIVE THAT CAN STORE 6 MONTHS OF AUDIO & VIDEO! Cops ARE NOT supposed to have access to the drive (it’s supposed to be locked-up and you need a key to access it) and the drive is often removable, which can only be done by superior officers or IAD.”

    So, to hold up in court, a citizen’s dash-cam would have to be subject to similar restrictions, I’m guessing…

  6. #6 |  robertsgt40 | 

    Hmmm. Cops watching us. Who’s watching the cops? More cops? Sounds like a tag team match to me.

  7. #7 |  Mike S | 

    As Mr. Craig said: “Texas is a “one party only” state, so you DO NOT have to tell ANYONE that they are being recorded.”

    In any other state I’d advise recording anyway, and have your lawyer claim you didn’t know it was turned on, and thus “acted in good faith”.

    If “good faith” works for the cops…

  8. #8 |  Militant Libertarian » Texas Appeals Court: Motorists Have No Right To Potentially Exculpatory Dashcam Footage | 

    […] The Agitator […]

  9. #9 |  On Evidence Preservation and The Right To Record Police » righttorecord.org | 

    […] couple weeks ago, Radley Balko posted about a Texas Appellate Court opinion. The gist of the opinion is that police did not violate a […]

  10. #10 |  Disintelligentsia | 

    There are several reasons why judges favor cops: 1. They often times come through the office of the district attorney, who have a chummy relationship with cops; 2. if they rule too often against cops then the DA will see to it that the judge gets disqualified from hearing further criminal cases (in California the DA would just file a CCP 170.6 motion each time he gets assigned a criminal case (it’s called “papering” a judge)); 3. they can recite the fiction that cops are disinterested third parties who don’t have an interest in testilying to get a conviction while the defendant is an interested party with an motive to not tell the truth – this of course ignores the fact that police do abuse their authority, try to do “street justice”, don’t want black marks on their records, get rewarded for their arrest and conviction records, etc. If anything, EVERY time an officer testifies there should be an eye to their motives for lying. The last reason is that judges often have a chummy relationship with the cops because they see the defendant once or maybe twice but the officer will be in their courtroom on a regular basis.

  11. #11 |  Texas DUI Lawyer | 

    Texas DUI Lawyer…

    […]Texas Appeals Court: Motorists Have No Right To Potentially Exculpatory Dashcam Footage | The Agitator[…]…

  12. #12 |  TXSAINT | 

    To destroy any evidence is a criminal offense period I think its something like (Tampering with Governmental Record) Im not an attorney so I could be wrong.. My point is Texas is an unconstitutional state with laws in place allowing the Police to bully joe citizen and steal his lunch money…

    Criminals are more like our state representetives these days. The do not care about the law, no one will tell them what to do….. Until they get caught then the criminals start blaming society for there stupidity and the state reps. get the Allmighty God Attorney to issue an opinion stating no crime has been broken. The they rewrite and/or make up new laws to further protect those in office..

  13. #13 |  Eliut Del Rio | 

    Today (5/31/12) I was driving between the towns of Presidio and Valentine in Texas when a state trooper stopped me for doing 85 in a 70 MPH zone. The thing was that my car was in cruise control at 70. He gave the ticket and refused to show me the radar readings. The worst part of this is that two hours and 33 minutes later another state trooper stopped me for doing 91 in a 75 zone and again I was in cruise control. He got all upset because I demanded to see the radar readings and he refused too. The funniest thing? I served my country twice in Iraq as a Military Policeman and returned home to face an abusive, is my word against yours police state!