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In the wake of the holding of the Illinois Supreme Court in People v. Kladis, DUI defense attorneys have become increasingly more aggressive in terms of attempting to extend the holding of Kladis to seek discovery sanctions for the failure of police departments to provide squad car audio and video recordings.  Recently, the First District Appellate Court of Illinois reigned in the interpretation of Kladis in its holding in People v. Strobel.

In Strobel, the defendant filed a motion for discovery sanctions after he received a squad video recording of his DUI arrest that did not contain audio.   The video did, however, capture the defendant’s performance on standardized field sobriety tests.  The trial court entered a sanction against the State preventing the State from presenting any testimony or video at trial regarding the defendant’s performance on field sobriety tests due to the lack of audio.  It is important to note that the audio was unavailable in this case because the officer failed to turn on his audio recording device before he approached the defendant’s car.

In reversing the trial court, the First District Appellate Court declined to extend the holding of Kladis to situations where the requested discovery material never existed.  Contrary to the facts in Strobel, Kladis involved a situation where the squad video recording was destroyed after a discovery request was received by the State.  The Strobel court countered the typical argument made by defense attorneys that missing audio or video footage may help a defendant’s case by stating that it is equally possible that the unrecorded audio could “banish any hope of exoneration.”

As a result of the holding in Strobel, it is unlikely that judges will impose sanctions against a municipality simply because the officer failed to activate his audio recording device.  Additionally, judges have been reluctant to sanction municipalities when audio/video recording equipment has failed resulting in an inability to retrieve recordings.  In addressing these arguments by defense counsel, judges have held that municipalities are only obligated to produce that which they possess and control.  As a result, it is apparent that sanctions will be limited to situations where a video/audio recording is destroyed after the prosecutor or the municipality has been put on notice to retain or produce the recording.  As a matter of good practice, we recommend that all municipal police departments retain a copy of every audio or video recording related to an arrest as evidence in a particular case to avoid the potential for sanctions should a request be made for this material at any time when the case is pending.

Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski