Does the Prosecutor Have to Turn Over Video Evidence in Drug Cases?

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If you are charged with a drug crime, the prosecution must provide the defense with 1) the evidence that will be used against them and 2) any exculpatory evidence in the state’s possession.

Or do they?

Although it is (should be) clear that prosecutors must turn over exculpatory evidence before a defendant accepts a plea offer, SC case law says that prosecutors can force a defendant to accept a plea offer without showing them the evidence that would be used against them at trial.

The SC Court of Appeals, in Hines v. State, held last month that the prosecutor does not have to turn over video evidence to a defendant unless the defendant decides to go to trial – forcing defendants state-wide to decide whether to accept plea offers before they have seen the evidence against them…

Does the Prosecutor Have to Turn Over Video Before the Defendant Decides to Accept a Plea Offer?


According to the SC Court of Appeals in Hines and the SC Supreme Court in Hyman v. State, it is perfectly acceptable for a prosecutor to condition a plea offer on the defendant’s waiver of his right to view the video evidence against him.

If a defendant doesn’t believe the evidence exists or that the evidence is strong enough to convict him or her, they must reject their plea offer and insist on a trial before they can view the evidence against them.

Why is that a problem?

In Hines, for example, the defendant was offered ten years if he pled guilty without seeing all evidence against him. When he refused to accept the plea offer without seeing the videotape that allegedly contained him involved in a drug transaction, the prosecutor said the deal was off the table and proceeded to serve notice of intent to seek life without parole (LWOP).

If you are charged with a drug crime and you insist on seeing the evidence against you before deciding whether to accept a plea, your sentence could increase from ten years to life in prison…

That’s fair, according to our appellate courts.

What if They Just Let the Defendant’s Attorney See the Evidence?

In Hines, the prosecutor graciously agreed to let the defendant’s attorney see portions of the video:

4 Petitioner asserts [the defense lawyer] only saw the portion of the video the State deemed relevant. He points to [the defense lawyer’s] testimony at the PCR hearing that the State told him it would “prepare relevant portions of the video for [him] to watch.” The State contends [the defense lawyer] testified he viewed “the video.” The PCR court’s order quoted the State’s email that it would “prepare the relevant portions of the video” and found [the defense lawyer] “testified he viewed the video.”

The Court found that, because the prosecutor allowed defense counsel to view portions of the video, although they also required defense counsel to sign a protection order prohibiting him from talking about the evidence, there was no Brady or Rule 5 violation.

Here’s the problem:

The defense lawyer is not charged with a crime. He or she is not facing decades or life in prison. He or she does not decide whether to plead guilty or not. How can a defendant make such a life-changing decision without personally viewing and studying the evidence against them?

Hine’s defense lawyer’s advice to his client was ambiguous at best:

[The attorney] testified he told Petitioner that if the video did not depict a drug sale, that would be a potential defense. He stated he did not feel comfortable or believe it was appropriate to advise Petitioner to plead guilty without first viewing the video.

But the attorney also testified that:

I think there was a decent chance that jurors hearing the sound would believe that [the] discussion was related to drugs and transactions related to drugs[,] and [Petitioner] was at a table doing something that if the informant testified — and we expected the informant to testify if [Petitioner] went to trial — the informant would say he was packaging up drugs[.]

Is there a defense here? Maybe…

As the defendant, I would not be able to decide until 1) I viewed the video for myself (what is the context? Was I actually on that video? and 2) I knew who the CI was (how credible are they? Is it even someone I’ve ever met?)

I have seen drug cases where the prosecutor insisted that the client was on video selling drugs, only to find the client wasn’t even on the video. The appellate courts are saying, “we can trust our prosecutors to tell the truth and to decide whether this person is guilty,” but that is simply not true.

What if They Show the Defendant Still Photos from the Video?

The Court also found that it was sufficient to show the defendant still photos taken from the video – why isn’t that okay?

It would be okay if they were going to limit themselves to presenting those still photos to the jury. But they are not – what else does the video show, and what kind of context does the video provide for what is seen in the photos?

Brady and Prosecutorial Misconduct

The Court analyzed the claim under Brady v. Maryland – if the prosecution withholds exculpatory evidence that could have made a difference at trial, there is a Brady violation.

Although the appellate court did not review the video evidence in question, they held that there was no Brady violation because the defendant, at his PCR hearing, did not prove that the video, which he still has not viewed, contained exculpatory evidence.

Note that it is rare a defendant will be able to prove that a prosecutor withheld exculpatory information, regardless of how often it happens. This isn’t a Brady case, it’s a matter of fundamental fairness and of being informed of the evidence against you.

SC Prosecutors Routinely Withhold Evidence

Assuming there was no exculpatory information in the video, the Brady argument still misses the point completely. The point is not that the state withheld exculpatory information. Most likely they did not in this case.

The point is that the state routinely withholds the evidence that would allow a defendant to determine whether it is in their best interests to accept a plea offer or to present their case to a jury.

This isn’t a one-off rogue prosecutor that decided to withhold the video from a drug defendant:

Ryan Newkirk, the solicitor who prosecuted Petitioner’s case, testified his office’s policy was “generally not to release the video of a confidential informant in a drug case unless the defendant is then willing to not accept an offer from the State…

He went on to say, “especially in cases where the life of the confidential informant could be in danger,” but that’s what lawyers would call a “red herring.” They withhold the videos in every case.

In a sense, inculpatory information becomes exculpatory as to sentencing because, if the defendant had seen the damning inculpatory information, he would have accepted the plea offer and received a ten-year sentence instead of life without parole (Hines ultimately pleaded to 14 years, but that is still an additional four years of his life that was lost to the prison system).

Rule 5

SC’s Rule 5, Rules of Criminal Procedure, says that:

Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial, or were obtained from or belong to the defendant.

“Permit the defendant to inspect and copy” means provide a copy of the evidence to the defendant – SC’s appellate courts have skirted this issue, however, holding that 1) the statute does not apply if there is a CI, and 2) it is sufficient to allow the defense attorney to view the video and to show still photos to a defendant.

Do you think that it is acceptable, honorable, and honest to attempt to force people to accept plea offers without showing them the evidence against them? To force them to accept a longer prison sentence or risk trial if they insist on seeing the evidence?

SC’s circuit court judges and appellate court justices think it is acceptable, and so, for now, that is the law in our state.

You can be forced to plead guilty without seeing the evidence against you, and SC’s courts are not going to force prosecutors to turn over video evidence in drug cases unless you refuse all plea offers and take your case to trial.

Criminal Defense Lawyers in Columbia, SC and Myrtle Beach, SC

The Myrtle Beach and Columbia, SC criminal defense lawyers at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.

If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.