“But there’s no videotape!”

There is the belief that in a drug transaction with an undercover police officer or a confidential informant if there is no audiotape or videotape the defendant cannot be found guilty. The same thinking applies when no audiotape or videotape is used in a prostitution sting.  There is also the belief that in a DUI case if there is no videotape of the field sobriety exercises then the case has to be dismissed.  There is a basis in truth to the no videotape myth in DUI cases if it can be shown that the police are selectively videotaping DUI suspects.39

But the police are under no duty to videotape anything.40 If the police do videotape the field sobriety exercises and the videotape machine malfunctions, or the videotape is somehow destroyed or lost then unless bad faith can be shown the client has to once again be convinced that the no videotape myth is in fact a myth. 41

However, if it can be shown that a videotape of the field sobriety exercises was made and it was exculpatory in nature, but for whatever reason has been destroyed, lost or somehow become unwatchable, then a motion to dismiss may prevail, lack of bad faith notwithstanding.42 Unfortunately, most of the time the only way to prove the videotape is exculpatory is through the testimony of the defendant, and there is no myth to the fact that most Judges won’t believe a word the defendant says.

The police do not even have to videotape or record a person’s confession.43