Legal Pleadings:

Motion to Compel Discovery – Jail Video

(Duval County Pretrial Detention Facility’s Jail Intake Video)

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Fla. R. Crim. P. 3.220, and respectfully requests this Honorable Court to compel the State to provide discovery, specifically, the Duval County Pretrial Detention Facility’s 12-shot jail intake video of the Defendant, which was taken during his arrest on April 28, and in support hereof, states as follows:
1. On April 28, the Defendant was arrested for allegedly driving under the influence (“DUI”) to the extent his normal faculties were impaired.
2. Pursuant to § 316.1394(1), Fla. Stat., “normal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life.”
3. As representative in all DUI cases where normal faculties are impaired, the State bears the burden to prove how a person’s normal faculties are affected by alcohol or drugs.
4. The State attempts to meet this burden by testifying to the Defendant’s behavior from not only during the time of driving, but during the DUI investigation, during transportation to the jail facility, behavior observed during the intake process, observations made prior to administering the breath test, and behavior observed during the intake process.
5. Video camera are placed throughout the Duval County Pretrial Detention Facility, including, but not limited to, the intake room and hallway to the breath test room.
6. The previous and current custodian of jail records, Officers W. and B., have both testified that in criminal prosecutions, the State requests these jail videos in order to prove cases where the crime is observed (e.g., battery on a law enforcement officer, introduction of contraband into jail facility, etc.).
7. These jail videos are preserved for thirty (30) days before destruction, and, on May 3, undersigned counsel requested the jail video be preserved. A copy of that letter is attached hereto as Exhibit A.
8. Previously, jail video requests were conducted informally, through a public records request (“PRR”) in one of two ways:
a. 4-shot camera video option; cost of production $50.00; and
b. 12-shot camera video option; cost of production $175.00.
9. These PRR requests were made per Jacksonville Sheriff’s Office instruction.
10. If a PRR was made, the jail video was automatically copied and, without payment from the State, forwarded to the State Attorney’s Office.
11. It is now the Jacksonville Sheriff’s Office policy to deny such PRRs, and, previously, the Jacksonville Sheriff’s Office has provided undersigned with a “blanket letter,” a copy of which is attached hereto as Exhibit B, stating that these jail recordings are “exempt as a public records request and is designated under Florida Statute 281.301 as confidential and exempt.”

In the instant case, the recorded jail surveillance videos are being withheld pursuant to the public records exception under F.S. §281.301. However, the Florida Supreme Court has stated, “We do not equate the acquisition of public documents under Chapter 119 with the rights of discovery afforded to a litigant by judicially-created rules of procedure.” Henderson v. State, 745 So.2d 319, 323 (Fla. 2000). Moreover, in regards to public records pursuant to F.S. §119.07(8), the statute states, “the provisions of this section are not intended to expand or limit the provision of Rule 3.220, Florida Rules of Criminal Procedure, regarding the right and extent of discovery by the state or by a defendant in a criminal prosecution.”

The recorded jail surveillance videos are highly relevant to the Defendant’s case in order to show that his normal facilities were not impaired. Evidence is relevant if it tends to prove or disprove a material fact. F.S. §90.401. The State is charging the Defendant with driving under the influence to the extent that his normal faculties are impaired. Here, the jail surveillance videos requested disprove a material fact at issue in this case. The video surveillance of the Defendant during his arrest will tend to disprove that his normal faculties were impaired, showing that he had the ability to hear, walk, talk, and normally perform various mental and physical acts associated with day-to-day tasks.

Furthermore, pursuant to Rule 3.220, Fla. R. Crim. P. and Brady v. Maryland, 373 U.S. 83 (1963), the State is required to turn over material exculpatory evidence to the defense. A Brady claim might arise when: (1) previously undisclosed evidence reveled that the prosecution introduced trial testimony that it knew or should have known was perjured, (2) the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence, and (3) the Government failed to volunteer exculpatory evidence never requested, or requested in a general way. Id. The State’s suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of good faith or bad faith of the prosecution. Green v. State, 975 So.2d 1090, 1101 (Fla. 2008).

The State is obligated to disclose evidence favorable to the accused that, if suppressed, would deprive the Defendant of a fair trial. To establish such a violation, a Defendant must prove three elements: (1) that the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching, (2) that evidence must have been suppressed by the State, either willfully or inadvertently, and (3) prejudice must have ensued. State v. Lewis, 838 So.2d 1102 (Fla. 2002). To determine whether prejudice exists, the question is not whether the Defendant would more likely than not have received a different verdict with the evidence, but rather the question is whether in its absence received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Id.

Additionally, in the instant case, the jail surveillance videos requested are evidence used to contradict or rebut the State’s allegation that the Defendant’s normal faculties were impaired at the time of driving. This evidence is exculpatory in nature as it is favorable to the defendant and tends to exonerate the defendant of guilty. Furthermore, evidence of this nature may contradict or rebut that the defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. F.S. §316.1934. The importance of video surveillance was further demonstrated in State v. Davis, where the court ruled that the lost videotaped recording of defendant’s roadside field sobriety test was material to the issue of defendant’s guilt to whether he was under the influence of alcohol, and the video recording would have assisted jury with opportunity to determine that fact. 14 So.3d 1130, 1132 (Fla. 4th DCA 2009). The court further determined where lost or unpreserved evidence is material exculpatory evidence; the loss of such evidence is a violation of the defendant’s due process rights. Evidence is “material if it creates a reasonable doubt that did not otherwise exist. Id. Although the video surveillance at issue has not been lost or unpreserved, the withholding of such “material” evidence is a violation of the Defendant’s due process rights.

Moreover, Florida courts have uniformly held that a police agency’s refusal to disclose material is imputed to the prosecution, even when the prosecution has demanded the subsidiary agency disclose the information and the policy agency has refused to do so. State v. Alfonso, 478 So.2d 1119 (Fla. 4th DCA 1985). State attorney is charged with constructive knowledge and possession of evidence withheld by other state agents, such as law enforcement officers. Gorham v. State, 597 So.2d 782 (Fla. 1992). In short, information within the possession of the police is considered to be in the possession of the prosecution. Id. at 1121. See State v. Del Gaudio, 453 So.2d 45 (Fla. 1984) (state Attorney is responsible for evidence which is being withhold by other state agents, such as law enforcement officers, and is charged with constructive knowledge and possession thereof for discovery purposes). Thus, the surveillance videos are tangible evidence in the State Attorney’s constructive possession and the State Attorney has an affirmative duty to turn it over.

WHEREFORE, it is respectfully requested that this Honorable Court enter an order compelling the State of Florida to turn over copies of the jail surveillance videos to the Defendant, and, under proper notice of preservation to the jail facility, all jail surveillance videos shall be preserved until further order of the court.