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VTL § 1194(2)(f)….. cont.

The Court has now reviewed the redacted videotape that the People propose to present at trial. Even a brief review of the People’s proposal leads one to doubt the People’s assertion that they seek to introduce this evidence solely in order to provide the jury with a visual record of the defendant’s appearance and condition. Defendant’s videotaped statements are plainly incriminatory in that defendant repeatedly admits that he was drunk, DWI, and concedes that he was in a car. Moreover, although defendant in his videotaped statements denies that he was driving a car at the moment he was arrested by the police, he does so in a manner that at least strongly suggests that he was indeed driving his car immediately beforehand. Thus it would certainly appear that the People want to introduce the redacted videotape both because it provides a visual record of defendant’s condition and because it contains extremely damaging admissions by the defendant.

Upon analysis, the People have the better end of the argument. The redacted videotape is clearly extremely probative on the issue of intoxication. The tape will allow the jury to judge for itself–rather than relying on the testimony of police witnesses given more than a year after the fact–whether the defendant appeared and sounded DUI shortly after his arrest. And the videotape in its redacted form does not give any indication either that defendant was asked to take a chemical test or that he refused to take such a test.

Defendant is right to raise the concern that, because it is obvious that the videotape has been redacted, the jury may speculate as to what has been deleted from the tape. However there is no good reason to doubt that an appropriate limiting instruction can be fashioned to meet this concern.

Accordingly, the Court finds that the People may present the redacted videotape as evidence at trial without violating VTL § 1194(2)(f)’s bar against evidence of a refusal.

Separate and apart from the question which of the defendant’s statements made on videotape should be barred because they constitute evidence of defendant’s refusal to take the chemical test, this case also presents a distinct question as to whether evidence of defendant’s videotaped statements should be barred on the ground that his right against self-incrimination was violated.

A statement made by a defendant to the police before the commencement of a criminal proceeding may be used by the prosecution at trial so long as it was made voluntarily. A statement will be regarded as involuntarily made where it is obtained through force or through other means that violate defendant’s constitutional right against self-incrimination. Where the defendant’s statements are the product of “custodial interrogation” and the defendant is not advised of what are now commonly known as defendant’s Miranda rights, evidence of those statements will be suppressed as involuntarily made.

Here there is no question that defendant was in police custody at the time he made the statements recorded on the videotape and that defendant was never given Miranda warnings. It is also clear from the videotape itself that defendant was asked a question by the police. Specifically, after first being advised that he was under arrest for driving while intoxicated, defendant was asked whether he would agree to take the chemical test for alcohol. Thus it can plausibly be argued by the defendant that all of defendant’s videotaped statements should be suppressed because they are the product of custodial interrogation undertaken without Miranda warnings.

Thus it appears that defendant made the statements at issue in this case because he was advised by the Spanish language pre-recorded refusal warning that he was under arrest for driving while intoxicated. Where a defendant makes statements in response to being advised of the charges against him, there is no “interrogation” and no violation of his Fifth Amendment rights.

Accordingly, the Court finds that the partial refusal warning that was given to defendant did not constitute interrogation, and that the redacted videotape may therefore be admitted in evidence at trial without violating defendant’s right against self-incrimination.
For all the reasons stated herein, the Court holds that the People may not introduce at trial any evidence of defendant’s refusal to take the chemical test, but the People may nevertheless introduce into evidence at trial the videotape of the defendant in the redacted form they have proposed. The Assistant District Attorney and defense counsel are directed to alert the trial judge at the outset of the trial herein to the need for jury instructions in accordance with this opinion as to the limited use of the videotape and as to the reasons why it has been redacted. Counsels are urged to prepare proposed language for such an instruction for the trial court to consider in advance of the presentation of evidence at trial.

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