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by Justice Paul E. Pfeifer
You don’t have to watch a lot of crime dramas on television to know that losing or destroying evidence is generally a bad thing. Ohio State Highway Patrol Trooper Tim Wenger knows that firsthand now.
In the early morning hours of August 16, 2004, Wenger stopped a vehicle driven by James Geeslin because he observed Geeslin’s car cross the white edge line of the roadway several times. Upon approaching the car, Wenger smelled alcohol and observed that Geeslin’s eyes were bloodshot and glassy. Upon questioning, Geeslin stated that he had been drinking.
Wenger then ran Geeslin through standard field sobriety tests, which Geeslin performed badly. Wenger also administered a breath test, which resulted in a reading of .176 grams of alcohol per 210 liters of breath.
The patrol car assigned to Wenger that day was equipped with a video camera and video-recording system. Wenger used that equipment to record his stop of Geeslin’s car.
At the conclusion of his shift, Wenger removed the videotape from the recording system according to his usual procedure. He reviewed the tape several times and apparently rewound it when he was finished. For his next shift, Wenger was assigned a different patrol car, and he placed the Geeslin videotape into that new patrol car’s video-recording system.
The recording system has a feature that automatically fast-forwards a videotape to a blank portion of the tape to avoid recording over an already recorded event. At the time when all of this took place, Wenger had been a trooper for less than six months. He later testified that he was unaware that this fast-forward feature doesn’t work with a videotape once it’s removed from the recorder and is then reinserted.
Thus, when he inserted the videotape into the different video recorder on his shift following Geeslin’s arrest and started to record, the recorder did not fast-forward to a blank portion of the tape.
Wenger testified that when he realized that the recorder had not fast-forwarded, he stopped recording, but by then, the portion of the videotape containing Geeslin’s driving had been recorded over. The only relevant events remaining on the videotape relating to Geeslin’s arrest are those that occurred after he was stopped.
Geeslin was subsequently indicted on two felony counts of operating a motor vehicle while intoxicated. He moved to dismiss the charges because he contended that the portion of the videotape recorded over contained possible evidence that could clear him of guilt and that the state had destroyed that evidence, which deprived him of due process of law.
The trial court granted his motion. The trial court stated that the facts were not in dispute, and thus the only issue was whether the missing portion of the tape was inculpatory (evidence that would establish his guilt) or exculpatory (evidence that would clear him of guilt.)
Because the state had destroyed the evidence, the trial court held that the issue must be resolved in favor of the defendant – Geeslin. On appeal, the court of appeals reversed that ruling, and then the case came before us – the Supreme Court of Ohio.
In 1963, the United States Supreme Court issued a ruling that said the suppression of materially exculpatory evidence violates a defendant’s due process rights, regardless of whether the state acted in good or bad faith.
In Geeslin’s case, we were asked to decide whether a due process violation also occurs when evidence in the state’s possession is not purposely suppressed, but is lost or destroyed. By a five-to-two vote, our court determined that it is not a violation of due process.
The missing evidence in this case – the portion of the videotape that showed Geeslin’s driving prior to the stop – wouldn’t have been used to establish his guilt or innocence. The missing portion of the tape would have been used to challenge or corroborate the justification for the stop. The portion of the tape that would presumably be used for exculpatory or inculpatory purposes – his field sobriety tests – is still available.
According to the majority, this difference distinguishes this case from several other court decisions that were cited by the parties in their arguments before our court. In those other cases, the defendants sought the missing or destroyed videotape evidence to challenge the substance of the allegations against them.
In Geeslin’s case, the majority said, the missing evidence would not have been used to acquit Geeslin of the impaired-driving charge itself. Rather, it would have been used only with regard to the validity of the stop that led to his arrest.
The majority concluded that the missing evidence could not have been materially exculpatory evidence as described by the United States Supreme Court’s 1963 ruling. Instead, the evidence here would have been considered “potentially useful.”
Under these circumstances, the majority said, Geeslin can demonstrate a violation of his due process rights only upon a showing of bad faith in the destruction of the evidence.
So did the state act in bad faith? For that answer, the majority relied on the trial court, which concluded: “The evidence clearly establishes that the loss or destruction of the nine to ten minute portion of the videotape was accidental.” Consequently, the majority maintained that Geeslin failed to demonstrate bad faith.
Justice Terrence O’Donnell and I cast the two dissenting votes in this case. What the majority opinion failed to mention is that when Wenger reviewed the videotape after his shift, he did so not only at the Highway Patrol Post, but also at his home.
“In my view,” Justice O’Donnell wrote, “Trooper Wenger’s screening of the tape at his home presents an issue as to whether the tape was destroyed in bad faith. This fact was not mentioned in the trial court’s opinion, and thus I believe that the matter deserves further consideration by the trial court.”
Nevertheless, the majority concluded otherwise, and therefore the loss of the evidence was not considered a violation of Geeslin’s due process.EDITOR'S NOTE: The case referred to is State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239. Case No. 2006-0882. Decided Oct. 11, 2007. Majority opinion written by Justice Robert R. Cupp.