Today's Oregonian has an article noting that Mohamed Mohamud's lawyer and a federal prosecutor agreed to an order preserving audio and video recordings and, importantly, the recording equipment that failed to record the first meeting between Mohamud and the undercover operatives:
It specifically targets a July 30 conversation between Mohamud and an undercover FBI employee. That talk set in motion a sting that led to Friday's arrest of Mohamud. But technical difficulties scotched a body-wire recording of the conversation, so the order seeks to preserve the equipment that malfunctioned.
One line of defense may be to test why the equipment failed on that day. Was it user error? Improperly maintained equipment? Dead batteries? Gremlins? Some of these possible explanations would reflect worse on the government than others would. If the equipment had been checked out the day before and it worked, and it just happened not to work for the meeting between Mohamud and the undercover operatives, the lack of recording might be more understandable than if, say, it had never been tested before. Presumably, there may be an effort to draw negative inferences from the lack of the recording, inferences that would be strengthened by negligence or malfeasance in using the equipment.
Another possibility is that one might argue that the government in effect "lost" (or spoiled) evidence by not having the recorder work. This is a harder legal argument to make, since as one appellate court (U.S. v. Pearl, 324 F.3d 1210 (10th Cir. 2003)) put it:
For [the] destruction of evidence to rise to the level of affecting a defendant's Due Process rights under California v. Trombetta, the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Indeed, this may not be a case about destruction of evidence as failure to obtain another form of evidence -- unless what happened is that the recording was made and then lost/destroyed. But if the question is simply whether there's any harm because a recording could have been but was not made, that would be hard to make out as a violation of any sort. First, it would imply that the government must always use the most technologically sophisticated device available to generate evidence, which seems like a strange result. Second, the standard for when destruction of evidence is deemed to violate a defendant's due process is much lower, as noted above; it would be very odd to have a more stringent standard for when the government fails to generate evidence than when it destroys evidence. And under the destruction of evidence standard, it's hard to see how the exculpatory nature of an audio recording of a meeting/discussion yet to take place would be apparent.
The upshot is that the failed recording is important, as well as the reason(s) that the recording failed. But probably more from its relevance to the entrapment issue (i.e., what happened at that first, critical meeting) than for any kind of due process or spoilation of evidence claim.
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