Loss of video during lengthy delay = constitutional speedy trial violation

Washburn student intern Jessica Browning and I won in State v. Salcido-Quintana, No. 105,007 (Kan. App. Aug. 10, 2012)(unpublished), affirming Judge Kaufman's dismissal of a Sedgwick County DUI prosecution due to a constitutional speedy trial violation.  One factor discussed at length in the case was the state's failure to be able to produce a videotape of the stop after a lengthy delay:

Because the video has not been produced, there is no way to know whether it would favor the State or Salcido–Quintana. Videotaping DUI and other traffic stops serves several purposes. As we have noted, the recording furnishes a comparatively objective depiction of what actually happened, particularly as the stop is made and the driver is then questioned about drinking and asked to perform field sobriety tests. The visual record may graphically show the driver's impaired speech, coordination, and mental acuity—all signs indicative of intoxication. The audio portion will memorialize a defendant's incriminating description of alcohol consumption or feeble efforts to otherwise explain apparent intoxication. In some cases, however, the video record may show an unimpaired driver.

A video can protect an officer from suggestions that he or she overstated the driver's impairment or otherwise overreached in conducting the stop and arrest. Or it may prove just that sort of overselling in an officer's report and testimony. And its very existence may furnish an incentive for an officer to avoid embellishing in the first place.

What often may not be shown in a video is the full extent of the officer's reasonable suspicion in deciding to make a stop. Deputy Gill testified that the video automatically began to run when he turned on his patrol car's emergency lights. But an officer usually does that only after he or she has determined there is reasonable suspicion to make a stop. In some instances, an officer may manually engage the video and will do so to record the poor driving prompting the stop.

From an evidentiary standpoint, the missing video is akin to a faded memory or lost witness. The absence of that evidence probably assists one side or the other in a given case. A court faces a difficult, often nearly impossible, task in making that determination about fuzzy recollections and vanished witnesses. With the lost video, this court confronts the same dilemma.

But there are a couple of significant differences between the video, on the one hand, and diminished or lost witness testimony, on the other. The passage of time hasn't dulled what the video would contribute if it could be retrieved. More important here, perhaps, the State bears direct responsibility for the loss of the video. The sheriff's department developed the procedures and the system for archiving and retrieving the digital recordings. And Deputy Wannow testified that sometimes videos simply cannot be retrieved once archived—something that happens on a regular and predictable, if relatively infrequent, basis. Loss of archived data was a known consequence of the equipment and processes the sheriff's department used. Under those circumstances, the prejudice to Salcido–Quintana should be considered more significant for purposes of establishing a constitutional speedy trial violation than the purely inferential type recognized in Doggett.

With the passage of time, witnesses and memories come and go. But that loss cannot be attributed directly to the State. The missing video, however, can and should be imputed to the State. If the sheriffs department used a more reliable data storage and retrieval system, the evidence would be available. The failure to do so may be analogized to the government's negligence in failing to make diligent efforts to notify a defendant of criminal charges after they have been filed. That negligence cuts against the State in a Barker analysis. The State's inability to produce the video data of the stop and arrest similarly burdens Salcido–Quintana's speedy trial rights. In this case, there is nothing he could have done to avoid that result. Accordingly, the loss of the video should be weighed at least somewhat more heavily against the State than the inferred prejudice recognized in Doggett.

The COA went on to review the Barker v. Wingo factors and affirmed Judge Kaufman's decision:

On balance, the length of the delay properly measured at more than a year and the comparative simplicity of the case itself coupled with the State's failure to offer any justification for the delay in notifying Salcido–Quintana of the charges well support the district court's conclusion in finding a constitutional speedy trial violation. Salcido–Quintana's relatively late assertion of his right does not materially change the picture; it is otherwise accounted for in measuring the delay. As we have explained, the prejudice assessment cannot be treated as neutral. It, too, tilts against the State.

[Update: the state filed a PR on September 10, 2012.]

[Further update: the KSC denied the state's PR and the mandate issued on March 29, 2013.]