EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, July 6, 2019

Court of Appeals of New York Finds Brady Violation After Prosecutor Places Crime Scene Video in "Irrelevant" Box & Doesn't Disclose It

A defendant is charged with second degree murder based on a shooting outside an apartment building. In closing argument, defense counsel says:

“Where is that video surveillance? Wouldn't you think, ladies and gentlemen, that if there was video camera surveillance at 48 St. Paul's Place, that would be very important, that possibly could show what it was that took place; don't you think it would have shown who actually shot [the victim]? We don't have that video.”

The prosecutor then responds:

“[Y]ou heard from [defense counsel] that there are video cameras inside 48 St. Paul's Place; inside the lobby, okay. Common sense, ladies and gentlemen, you saw that the police recovered video footage from [defendant's apartment building], ... which is around the corner in the direction of flight that the defendant went. Isn't it common sense that they went to the building where the actual event took place in front of? And isn't it common sense that you would have seen that video if there had been a video?”

"In fact, there was a video from a surveillance camera in the lobby and the prosecutor had reviewed it before the trial." Brady violation? According to the recent opinion of the Court of Appeals of New York in People v. Ulett, 2019 WL 2583106 (N.Y. 2019).

The facts in Ulett were as stated above, with the prosecutor saying that

she believed [the video] did not constitute Brady material because it did not capture the shooter and the images were too “washed-out” to identify anyone. The prosecutor put the video in a box for “irrelevant” evidence and “forgot about it.”

The lower court sided with the State, concluding that the “defendant failed to show a reasonable probability that the result would have been different had the video been disclosed ..., particularly in light of the very limited view provided in the video of the events occurring outside the building.” But the Court of Appeals of New York disagreed and found a Brady violation, concluding that

[t]his video evidence could have been used to impeach the eyewitnesses. Each was cross-examined on testimony concerning, among other things, his or her movements at the crime scene, the presence of others before and after the shooting, and the direction of the assailant's flight. Images on the tape were relevant to those areas of inquiry. For example, the tape clearly contradicted [one witness]'s statement that he was alone with the victim shortly before and after the shooting. We reject the People's argument that the impeachment value of the video is cumulative to what was already available to defense counsel. Impeachment with contradictory testimony of other witnesses is hardly the same as being confronted with a videotape of the scene.



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Posted by: Gilbert OBrien | Jul 7, 2019 11:24:08 AM

Things are marginally more fair in states like California and New York, thankfully, but even there somehow the lower court thought such clear bad faith acting by the prosecutor was just fine... Depressing.

Posted by: Paul | Jul 20, 2019 5:51:08 PM

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