October 07, 2010

• Steven Topazio wrote this April 27, 2014 at 11:13 am

The defendant, who was accused of nearly running a pedestrian over, was arrested after Boston police reviewed a recording of the incident from a Boston City Hall Security camera. According to the police report, the video was requested and preserved. Attorney Topazio, who represented the defendant, requested a copy of the video from the Commonwealth and indicated said request on a pre-trial conference report that was filed with the court. The case was continued several times for the production of the video. After the Commonwealth failed to produce the video, Attorney Topazio filed a motion to dismiss the charges arguing that the officer’s refusal to produce the video after requested by the Commonwealth denies the defendant the opportunity to obtain potentially exculpatory evidence of the entire event which was captured on video. Attorney Topazio argued that the video, which was either lost or destroyed, was potentially exculpatory and when evidence is lost or destroyed, the court must employ a balancing test to determine the appropriateness and extent of remedial action. Attorney Topazio relied on case law that suggested that the trial judge must weigh the culpability of the Commonwealth and its agents, the materiality of the evidence, and the potential prejudice to the defendant and argued that dismissal of all the charges was the only remedy available to his client to correct the harm done. Today, Attorney Topazio was successful in convincing the court to dismiss the criminal charges against his client due to the loss of evidence.