IN THE FRANKLIN COUNTY MUNICIPAL COURT State of Ohio, Plaintiff, -vCASE NO. ____ TRC ___________ JUDGE ______________________, Defendant. MOTION TO PRESERVE EVIDENCE Now comes the Defendant, by and through counsel, respectfully requests this Court preserve evidence obtained in the above captioned case including but not limited to: 1. Any and all recorded statements made either by the Defendant and/or Officers involved in the instant case, including 911 tapes; 2. Any videotapes, audiotapes, DVD that may have been used in charging the Defendant; 3. The arresting officer’s videotape/DVD from his/her in car camera from ______________________, videotape/DVD. Respectfully submitted, ____________________________ Douglas A. Funkhouser (0064831) DOUGLAS A. FUNKHOUSER CO., L.P.A. 729 South Third Street Columbus, Ohio 43206 Telephone: (614) 443-5404 Facsimile: (614) 443-5408 Attorney for Defendant 20___ and/or any booking room
MEMORANDUM IN SUPPORT I. LAW AND ARGUMENT The Due Process clause of the United States Constitution includes the requirement to have evidence preserved by the State. This is especially true in cases in which the evidence is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta (1984), 467 U.S. 479, at 488-89. However, the failure to preserve potentially useful evidence rises to the level of a due process violation only upon a showing of bad faith. State v. Lewis (1990), 70 Ohio App.3d 624, 634. “Requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it.” Arizona v. Youngblood (19988), 488 U.S. 51, at 57. When the defense files a motion to preserve the evidence and the state breached its duty, the appropriate remedy is to shift the burden of proof with regards to the exculpatory nature of the evidence when applying the Trombetta test. Columbus v. Forest (1987), 36 App.3d 169 (10th District Court of Appeals). Once the burden shifts, the defense must still demonstrate that it would not have been able to obtain the evidence in question through other reasonable means. Id. Courts have found that a Demand for Discovery motion is sufficient to constitute a motion to preserve the evidence when considering a shift of burden. State v. Benton (2000), 136 Ohio App.3d 801.
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II.
FACTS The police officer who arrested the Defendant on or about _______________ had
an in car video camera. The defense must have the opportunity to review this videotape. Other videotapes referenced by the police officer exist and must be made available to the defense to review including 911 tapes made by the Defendant or involving this incident. Otherwise, the defense will be unable to properly prepare for trial. III. CONCLUSION For the above reasons, and to ensure that the Defendant’s due process rights are not denied, counsel respectfully moves this Court for an order that all videotapes/DVDs from the arresting officer’s motor vehicle or other location from the day in question be preserved for review. Respectfully submitted, ____________________________ Douglas A. Funkhouser (0064831) DOUGLAS A. FUNKHOUSER CO., L.P.A. 729 South Third Street Columbus, Ohio 43206 Telephone: (614) 443-5404 Facsimile: (614) 443-5408 Attorney for Defendant
CERTIFICATE OF SERVICE The undersigned certifies that a true copy of the foregoing Motion to Preserve Evidence was served this ____ day of ______________, 20__ to the
________________________.
____________________________ Douglas A. Funkhouser (0064831)
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IN THE FRANKLIN COUNTY MUNICIPAL COURT State of Ohio, Plaintiff, -vCASE NO. ____ TRC ___________ JUDGE ______________________, Defendant. ENTRY Upon motion of the Defendant and for good cause shown, the Defendant’s Motion to Preserve Evidence is hereby granted. All videotapes, audiotapes, DVDs in the above listed matter in the possession of or created by law enforcement shall be preserved until further order from this Court. This order includes the arresting officer’s in-car video/DVD and/or booking room recordings made prior to and following the arrest of the Defendant on _________________, 20___ and any 911 tapes involving this incident. IT IS SO ORDERED.
_________________________________ JUDGE APPROVED:
______________________________ Douglas A. Funkhouser DOUGLAS A. FUNKHOUSER CO., L.P.A. Attorney for Defendant
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