Criminal defense attorneys often file motions to preserve evidence. As the name suggests these pretrial motions ask the judge to order a third party not to destroy or discard potential evidence that is in their possession.
Such motions are usually unnecessary for police videos (body cam, cruiser cam, and booking) and other items collected by law enforcement as part of their investigation. (See my earlier posts: Mandatory Pretrial Discovery in Massachusetts Criminal Cases and SJC Approves New Pretrial Discovery Rules for Criminal Courts.)
However, when a third party possesses evidence, it maybe necessary to get a court order for its preservation. In most cases the motion seeks to preserve video evidence that was recorded on the third party’s phone, ring camera, or surveillance camera.
Prosecutors can also file such motions. But, due to their high caseload, they often fail to do so.
Before filing a motion to preserve evidence you should, of course, determine whether the evidence helps or hurts your case. Common sense should tell you to preserve only exculpatory evidence.
The motion to preserve should be filed as soon as possible in the case’s pretrial stage.