Case Dismissed for Lack of Evidence at Trial
Client entered a Circle K picked up a pack of gum and put it into his pocket. He walked around the store for a few minutes then headed for the door. This activity was seen on the store's video monitor by the clerk who stopped the client at the door. Police were called and client admitted taking the gum inadvertently. Police seized the video as evidence.
Client was charged with shoplifting and the case was set to trial. Brian Di Pietro requested a copy of the store video and just a few days before trial received the video. The prosecutor was aware that the copy of video sent to Mr. Di Pietro was not able to be played. Mr. Di Pietro brought a pretrial motion to suppress the video as evidence since it could not be played by him, as a was a due process violation of client's constitutional right to a fair trial, and the court granted the motion to suppress the video evidence.
During trial the state offered testimony from the clerk as to what he saw on the video. Mr. Di Pietro objected to this line of questions based on the ruling of the court regarding video evidence. The judge agreed that the state could not present testimony from the witness as to what was video recorded.
Mr. Di Pietro further pointed out to the State that his Client's confession could not be used until the State established the corpus delecti of the crime. Essentially the State was without evidence of the shoplifting charge and was forced to dismiss the case.