PARKLAND (CBSMiami) – Nikolas Cruz went before a judge Tuesday for a hearing regarding the attack of a Broward jail guard back in November of 2018.

The incident was caught on camera. The defense made a motion to get that video thrown out for, what they refer to, as a failure to preserve evidence.

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Video from the jail appears to show Cruz walking around tables in a common area. He exchanged words with BSO Detention Sergeant Raymond Beltran, gives Beltran the finger, and rushes him.

The defense claimed the video needed to be tossed out out, saying BSO did not properly respond to the video request made by the defense.

“Whenever a surveillance camera captures a use-of-force incident, they preserve that portion of the video,” explained Terrance Lynch, the BSO general counsel who was called to answer questions.

The defense made a request to preserve video from different cameras relating to the incident, asking for what is called “pod” and “unit” video. The unit video, according to Col. James Reyes who took the stand, was the only one that showed the attack.

Reyes was director of the department of detention at the time.

“If provided 24 hours of pod video, you would not have seen anything related to this incident,” he said.

Reyes said there was no other relevant video than the one already submitted into evidence.

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He said that included five minutes before the incident in question and roughly two minutes after, which is more than their usual policy.

Colonel Reyes said he was the only one who saw the rest of the videos leading up to the incident. The pod video the defense inquired about was no longer available, as the system resets after 30 days.

“Prior to that use of force recorded, I did not observe any hostility,” Reyes testified, referring to hostility between Cruz and Beltran.

The defense cited the case of Arizona v. Youngwood, which suggests the destruction of evidence that could have been helpful, done in “bad faith” by police, is a denial of due process of law.

“It is our position they acted in bad faith,” the defense said to the judge.

The state, however, pointed out the defense had plenty of time to clarify their request within those 30 days and there was no issue with it then, and there was no issue when it was submitted into evidence.

“The mere possibility something could be helpful does not make it material,” the state said.

The judge gave a recess and did not make a decision on the defense’s request, but is likely to do so later this week.

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Cruz faces several charges related to the attack, including aggravated assault on a law enforcement officer. Jury selection in the battery trial is set to begin Monday.

Karli Barnett