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TESTIMONY ABOUT “POTENTIALLY USEFUL” VIDEO LOST BY COMMONWEALTH PERMISSIBLE UNLESS DEFENDANT CAN SHOW BAD FAITH ON THE PART OF THE POLICE

The PA Superior Court has decided the case of Commonwealth v. Williams, No. 526 WDA 2016 (January 12, 2017), holding that because lost surveillance video footage relating to the break-in of a pizza shop was only “potentially useful” (as opposed to “materially exculpatory”) and the police did not act in bad faith in failing to preserve it, the trial court erred in suppressing testimony relating to the contents of the video.

The Commonwealth appealed after the trial court order precluded the Commonwealth from introducing testimony at trial describing the content of lost surveillance video footage relating to the break-in of a pizza shop, for which the Commonwealth charged Williams with various offenses.

On appeal, the Superior Court noted that there are two separate due process analyses to be applied to lost evidence and that they depend upon the purported value of the evidence to the Defendant, i.e. – whether it is “materially exculpatory” or “potentially useful.”

First, due process requires the Commonwealth to turn over, if requested, any evidence which is exculpatory and material to guilt or punishment and, to turn over exculpatory evidence which might raise a reasonable doubt about a defendant’s guilt, even if the defense fails to request it. This is so-called Brady or Agurs material.

However, there is another category of constitutionally guaranteed access to evidence, which involves evidence that is not “materially exculpatory,” but is “potentially useful,” that is destroyed by the state before the defense has an opportunity to examine it. In such cases, when the state fails to preserve evidence that is “potentially useful,” there is no federal due process violation “unless a criminal defendant can show bad faith on the part of the police.”

In Williams’ case, the Superior Court concluded that since the video evidence was only “potentially useful,” Williams was required to show that the Commonwealth acted in bad faith in failing to preserve it. The trial court concluded that the Commonwealth did not act in bad faith in failing to preserve the video evidence. The Superior Court agreed. Accordingly, the trial court’s suppression order was reversed and the case remanded for further proceedings.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-S83034-16o%20-%2010295077915527316.pdf?cb=1

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