The fall out from the erased DUI video tapes by the Nashville, Tennessee police department continue. Attorney David Brandon was the first attorney to discover the erased tapes. I congratulate him for discovering what had happened. However, I think everyone needs to be aware that the erased DUI tapes are not a get out of jail free card. It is merely one key piece of evidence that is not available. In court this week, I saw how not to use the loss of evidence.
Here is the key. Destruction of evidence may not require an automatic dismissal unless a criminal defendant can show bad faith on the part of police. Failure to preserve potentially useful evidence does not constitute a denial of due process of law. See Arizona v. Youngblood.
A number of states have not followed Youngblood because of the unfairness or requiring the accused to prove bad faith or that the evidence would in fact be favorable. Tennessee rejects the Youngblood "bad faith" analysis. Instead Tennessee adopted a "fair trial" analysis. See State v. Ferguson jury instruction.
So, my advice is to use the loss of the video tape to drive favorable plea discussions. When the facts are great anyway, then ask the court for the Ferguson jury instruction at trial.