The Court of Askew v. U.S., decided on July 2, 2020, addressed to what extent the government must preserve criminal evidence for discovery purposes.

Askew was convicted on four counts of assault of police officers and on appeal challenged the government’s lack of both preserving and producing material evidence.

Specifically, Askew argued that the trial court erred when it declined to sanction the government for violating Rule 16 by failing to preserve and produce:

1. Surveillance footage from the rotating MPD-operated video camera located near where he was arrested,
2. Footage from any video cameras located inside the police station where Mr. Askew was taken and booked, and
3. Medical records for the officers who reported to the Police and Fire Clinic.

Rule 16, the tenet of discovery rules, imposes upon the government a range of discovery obligations, including an obligation to disclose, upon a request:

1. Documents and objects, including videos, and
2. The results or reports of any physical . . . examinations.

The second phase of the Rule requires the items to be:

1. Within the government’s possession, custody, or control; and
2. Be material to preparing the defense.

Most importantly, Rule 16 imposes on the government a duty of preservation of material evidence.  That is, the government has a duty under Rule 16 to preserve discoverable items in its possession, custody, or control and this duty is antecedent to its obligation under the rule to disclose these materials upon a defense request and is active even before prosecution begins.

Here, the government has an obligation under Rule 16 to preserve video footage if there is a reasonable expectation this footage will be discoverable in a future criminal case. The government should have such a reasonable expectation, with or without an actual inquiry from the defense.

Thus, as the government had failed to preserve the video footage of incident, the case was remanded to the trial court to determine if the video footage did actually capture the incident.  If the footage did in fact capture the incident then lack of preservation of the footage would be sanctionable under Rule 16 with most likely a dismissal of charges.

This is a perfect example of how vigorous pursuit of discovery rules can result in sanctioned-dismissal of the charges directly or on appeal.

Refer to Washington DC Criminal Lawyer page for more detailed on this subject.