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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 118648
Experience:  Attorney experienced in commercial litigation.
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I have a data storage device containing audio/video

Customer Question

I have a data storage device containing audio/video evidence, currently being held in a police property room pending the conclusion of a criminal trial - which has now occurred. So presumably I can simply go to the PD with my property receipt and retrieve it (w/o any prior clearance from the prosecutor, etc.)However, for the purposes of other legal action, I need a way to establish exactly what evidence was on the device at the time it was in the police's possession, in order to preclude the suggestion that I could have simply copied the purported files to the device after the police returned it to me.1. How do I do that? It seems to me that, for starters, I would need a neutral 3rd party to go in with me and make a copy of the device's files before handing it over to me. (Or they hold on to the device and give me the copy.) Then perhaps I have them sign an affidavit about the event, etc.1a. I also need to know what to do if I get to the PD and discover that tampering or the like has occurred - that the device has "gone missing", or been erased, or certain files erased, or some other such scenario.Thank you.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
You would need written consent from the prosecutor to retrieve any device that is in evidence. If the device may still be needed for a retrial or appeal, then the prosecutor can get the court to issue an order to allow you to "mirror" the drive, which is how they deal with these cases. Mirroring is making an exact copy of the whole device.
You need to go through the prosecutor and would need a computer expert to make the mirroring if the police expert will not be used to do so. Typically the prosecutor will order the police forensic computer expert to make the mirror image, because of chain of custody requirements for court. If anything is erased, that is not something the prosecutor will be liable for I am afraid unless you have proof they actually erased it and in that event you would have to prove the monetary value of what is erased to recover anything (assuming the forensic computer expert cannot recover that document as well).
Customer: replied 1 year ago.
There's a larger/messier part to this, which requires a little more background/detail: At the time that the police confiscated my data drive, I told them that it contained recordings that exonerated me - including one of a witness talking about fabricating testimony. I told them that I wanted their investigator to listen to said recordings, and I also requested a copy for my defense - neither of which occurred. The police have a recording of me saying all of this, a copy of which I obtained from the prosecutor's office… One of the officers told me they'd need a search warrant to listen to my device. Seems dubious given that I'd already provided consent, (and that they routinely manage to forego consent and probable cause.) Regardless, they never pursued a search warrant. For the prosecutor's part, he's never once mentioned my data drive - not in discovery or otherwise - and he only responded vaguely when I first brought it up to him. So as it stands, it appears that the police and/or prosecutor willfully ignored evidence because it didn't support a conviction. What crime or misconduct have one or both of them committed here? And who would I contact about it? On the civil front, can I sue the city? - The fallout from this situation has cost me dearly.RE the immediate case: It was dismissed for absence of a key witness. The prosecutor threatened he would re-file charges if the judge granted the dismissal, but there's been no sign yet that he's going to. So given the dismissal, would I still go through his office to get the drive (or a copy of it)? Do I just email him and say "since the case is concluded, please instruct the PD to release my drive to me, or otherwise have their forensic IT expert provide me with a copy of it"?Thank you.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your additional information.
If you did not get a copy for your defense, then your attorney did not do their job, since you were entitled to that under your right to discovery and due process.
If you have consent then they did not need a warrant to search the drive. They have not committed a crime anyhow, if they did not have consent and did access the drive without a warrant, then any information obtained would be inadmissible in court and would be grounds to vacate any conviction if it was admitted, since the case was dismissed, there is nothing to vacate.
If they destroyed or tampered with evidence, then that is a criminal offense of tampering with evidence which can be a felony, but you have to prove the information was on the drive, meaning you need to get it and have a forensic computer expert try to find the files that were removed from the drive to prove they were there and try to show they were removed when the drive was in police custody.
If they destroyed the evidence you could seek to sue the police and prosecutor for malicious prosecution or destruction of your property and collect civil damages.
Customer: replied 1 year ago.
I was unrepresented at the time. And I wasn't aware that I needed to make a formal written request for a copy of the drive. I thought it was enough to tell the police that the drive contained exonerating recordings of the actual event, which revealed that the accuser made false statements to the police, etc...Maybe what I failed to understand is that once the accusation was made against me, trial was simply inevitable - vs the prosecutor dropping the charge - and that he was going to let a judge/jury decide if my evidence exonerates me.On the other hand, it's also clear that the police and prosecutor didn't even check my evidence... Didn't they have a duty to? If the other party made false statements, which is a crime, where do they get off ignoring that? And just prejudicially taking the other party's word over mine? Isn't it obstruction on their part? Suppression?Given the dismissal of the current case, do I still need to go through the prosecutor's office RE my drive? I am shopping for an atty but I want a copy of that drive ASAP so I need to know how to obtain it myself.While my primary concern isn't tampering/destruction of evidence, in the event that I encounter it, who do I call? (Since I obviously can't call the police.)Thank you.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
The fact you were unrepresented I am afraid is not the best excuse to the courts.
However, what you need to do is get the DA to release the hard drive. Once you get the hard drive, then you can take it to a forensic expert to verify if everything is there and recover what may not be there. If you can do that, then you print it out and can deliver it to the DA as well.