PCR – can the prosecutor withhold the audio/video of a drug transaction prior to trial

In Hyman v. State, decided March 14, 2012, the S.C. Supreme Court held that it is sufficient that the defendant’s attorney view the video tape in a drug case, without showing the entire video to the defendant himself.  The case addresses the conflict between law enforcement’s need to protect their confidential informant and the defendant’s right to see the evidence against him in the context of a guilty plea.

Hyman’s attorney viewed the videotape, which, according to the attorney, showed Hyman engaging in a drug transaction.  Hyman was charged with distribution of crack cocaine third offense, which at the time carried a mandatory minimum of 15 years up to 30 years, and distribution within proximity of a school zone.  His plea offer was 5  years on a second offense (minimum 5 up to 30).  The solicitor left the plea offer open until the attorney had viewed the videotape and provided still photographs from the video for Hyman to look at, but Hyman insisted that he wanted to watch the videotape.  He pled guilty after a jury had been selected and was sentenced to the minimum 15 years on the distribution third offense.

Brady violation – the Court held that there was no Brady violation.  1) Brady does not require that the prosecutor disclose evidence to the defendant personally – it is enough that it is disclosed to the defendant’s attorney.  2) There was no Brady violation, because the evidence was not exculpatory – according to the testimony at the PCR hearing, the video showed Hyman selling drugs and was inculpatory.

Rule 5 violation – The Court held that there as no Rule 5 violation, because the prosecutor allowed the defense attorney to view the entire video, and provided still photographs to the defendant.  The Court quotes from Rule 5, suggesting that the rule was complied with by allowing the defense to inspect the evidence (video); but they quote selectively, ignoring the language of Rule 5 that says the defendant is entitled to inspect and copy the evidence:

(C) Documents and Tangible Objects. 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.

Identity of informant – the U.S. and S.C. Supreme Courts have held that the defendant is entitled to know the identity of the informant where the informant is an active participant in the transaction or otherwise a material witness.  The Court holds that a fair balance was struck in this case, and notes that it appears that the identity of the informant was not withheld from the defense lawyer, who was allowed to view the videotape while the defendant himself was provided with still photographs, and that the defendant himself was going to view the videotape at the trial.

I agree with the Court, although it is a precarious balance that has been struck and the outcome ignores the actual language of Rule 5.  If the defense lawyer views the video (I believe under the Rule this can and should be taken a step further and the defense lawyer should be provided with a copy of the video even if the defendant is not allowed to view it), then the defense is able to prepare.  For a defense lawyer to recommend to a client to plead guilty without having seen the evidence in the case is malpractice – over the years I have had several cases where we refused to do anything until I saw/heard the video/audio, and it turned out that my client was not on the video or the audio.  It happens, and when a prosecutor refuses to provide the video or audio from a drug transaction I have to assume that they are trying to hide something.

This has been an issue for at least as long as I have been practicing law – in the past some prosecutors would routinely make a plea offer contingent on the defense not obtaining the video or other evidence in the case (some are still doing it), which resulted in a memo from the Chief Justice in 2004, where she predicts that the practice of withholding discovery prior to plea agreements will result in claims of ineffective assistance of counsel; and where she notes that the practice of conditioning plea agreements on the defendant relinquishing his right to discovery is unethical under Rule 3.4 of the ethics rules:


A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

There is no exception to the ethics rules for prosecutors in criminal cases.  To the contrary, there are additional obligations imposed upon prosecutors by the ethics rules and by the State and U.S. Constitutions.  I’ll say, cautiously, that the Court struck a fair balance under the facts of this particular case, but I predict that they are going to see this issue again, where the prosecutor does not permit defense counsel to view the videotape and does not permit the defendant to view the still photographs before a plea offer is withdrawn, and/or where the plea offer is expressly conditioned upon the defendant not seeing the evidence before trial.

7 Responses to “PCR – can the prosecutor withhold the audio/video of a drug transaction prior to trial

  • It seems to me that there is one situation in which allowing the lawyer but not the defendant to see the video is problematic, namely if there is a problem with the video, e.g. if it is an actual fraud or if it was not made when and where it is alleged to have been made. The defendant is in a position to note anomalies in the video that the lawyer cannot. If the defendant cannot do this until trial, that is a significant disadvantage to the defence, which may not be able to investigate the matter in time for it to affect the trial.

  • Sure. Or – the Defendant may recognize the person in the video if it is not him or her. The Defendant is in a better position than anyone to say if it is him or her than anyone else. The Defendant may recognize other people in a video, or may be able to point out details in the environment that are helpful to the case.

  • The same thing happened to me in 2015. The prosecutor offered me a plea deal before allowing me to see the still photos and before showing my lawyer the video. The videos were obviously altered because the portion that showed the alleged transactions were blacked out. If the video was blacked out during the alleged transactions then the still photos would of been black too but they weren’t. The pictures don’t show me in any kind of drug activity they just place me at the residence. The authenticity of the videos couldn’t be challenged two days before the trial started. The original video would of never showed me sell any drugs. My case was appealed and reversed due to prosecution misconduct but I face retrial now. I already know what the pictures and videos showed NOTHING. Can my new attorney file a motion to dismiss due to tampering with evidence before viewing the videos?

  • Wade v Rouse
    1 year ago

    I just made it home after doing all of the prison sentence for crk dost.2 10years.. My pct is still pending the outcome of the SC supreme court: no video has been produced in the case and I am sure it was never in existence. If you can help me legally my info… Wade v Rouse 8643237620# smoke52job@gmail.com
    Edgefield sc.29824 dirty work always with this 11th circuit

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