We are coming closer to living in a police state. In an OWI prosecution the police officer is the person that controls all the evidence. The officer decides which evidence to preserve. In many cases evidence of a person’s innocence is not preserved. If the evidence doesn’t help the officer, it often times isn’t kept. The standard excuses are videos are lost, breath samples are not preserved, equipment is broken, or none of the officers remembered to turn on their video recording device. People that appear sober on a video don't help an officer get a conviction. Unfortunately, many judges and juries are allowing this so-called “Barney Fife” exception to the Constitution. In other words, a police officer isn’t held to the same standards of other witnesses at a trial. Fortunately, there are more good cops than bad cops. There are however, bad cops.
With the advent of technology, more and more people are recording their interactions with police officers. Unfortunately even with that, again, the officer can control the evidence. More and more people are coming into my office claiming that the officers are seizing their phones and deleting videos of the arrest incident that the accused wished to use in their defense. The hard part is proving it, but I'm hearing it often.
Only through our jury system can we put an end to this type of behavior. I had an OWI trial recently where my client claimed the officer was out to get him and had invented the entire case against him. The officer alleged my client had driven his truck while having a level of alcohol in his system more than twice the legal limit. This was a case in a rural county seat town. The officer had been employed in that town for 20 years. Before the actual evidence phase of a trial begins, the attorneys get to talk to the potential jurors and then select the persons to serve on the jury for that trial. During jury selection, I asked if any of the potential jurors knew the officer. At first nobody wanted to talk. It took awhile to gain their trust, so that they would feel safe. I knew someone had to know something. Eventually they started talking about how this officer was a bad cop. A couple claimed they were aware that he lied and invented evidence in other cases of people they knew, but everybody always ended up pleading guilty because he was the cop. Of course the prosecutor eliminated those people from the jury pool, but the rest of the jurors that served on the trial held the government to the requirements of the law. So when the officer got on the witness stand and said, “I forgot to turn on my video recorder” and “I couldn’t find the proper paperwork that night so I filled it out later” the jury saw it for what it was. Fortunately for my client in that case, we caught a break in that the potential jurors had knowledge and were willing to express concerns about this particular cop. Unfortunately in most cases juries tend to give the otherwise unknown officer the benefit of the “Barney Fife” exception unless you can show they are lying. But when the cop controls the evidence its hard to do. And the State is the party with the burden of proving guilt beyond a reasonable doubt. In every case, jurors need to hold the arresting officer to the same standards as any other witness. In this day and age, technology records everything and is very easy to operate. Even Barney Fife could do it. If evidence isn’t preserved, it should be held against the government. As a society, we should not take away freedom (read as “we shouldn’t send people to prison“) unless the officer did his job correctly, which includes preserving evidence of innocence.