Here's an excerpt from an interesting case in North Carolina involving a malfunctioning DVR and video evidence not retrieved by the police.
"... First, we cannot conclude that the State "suppressed" the surveillance video because the State never actually possessed that item in the first place or took any steps to prevent Defendants from obtaining access to it. Under Brady, the State is required "to disclose only those matters in its possession. . . ." Thompson, 187 N.C. App. at 353, 654 S.E.2d at 494. In addition, "Brady requires that the government disclose only evidence that is not available to the defense from other sources, either directly or through diligent investigation." State v. Scanlon, 176 N.C. App. 410, 436, 626 S.E.2d 770, 788 (2006). Shortly after the robbery, representatives of law enforcement and a number of the State's witnesses viewed the surveillance video. At a later time, the Albemarle Police Department made several attempts to copy the surveillance video, including sending a technology specialist to the Sonic restaurant in an attempt to achieve that end. However, these efforts to copy the surveillance video were unsuccessful due to a malfunction in Sonic's equipment. The record does not contain any indication that the subsequent destruction of the video of the robbery resulted from any action on the part of anyone acting on behalf of the State. Defendants were, at all times, able to contact Sonic directly, attempt to ascertain whether a surveillance video existed, and make independent efforts to preserve it for use at trial. However, the record does not contain any indication that Defendants made any attempt to contact Sonic between the week of 10 November 2008, when the existence of the surveillance video was discovered, and the beginning of the trial. Based on these facts, we cannot conclude that the State suppressed the evidence in question or that the State in any way interfered with Defendant's ability to independently obtain access to the surveillance video.
Secondly, even assuming that the State had an obligation to disclose the existence of the surveillance video, Defendants have made no showing that its contents were exculpatory or material. On the contrary, the record is completely silent as to what the contents of the surveillance video actually were. In the absence of some indication of the nature of the video's contents, we cannot say that it contained information that would have been helpful to Defendants or that "there is a `reasonable probability' of a different result had the evidence been disclosed." Williams, 362 N.C. at 636, 669 S.E.2d at 296 (quotation omitted).[ 4 ] Thus, we are unable to conclude that the surveillance video was either exculpatory or material as those terms are used in Brady-related jurisprudence. ..."
Read the whole ruling by clicking here.