ACLU Suggests Jury Instructions Might Be A Fix For 'Missing' Police Body Camera Recordings

from the opting-out-of-creating-evidence-means-no-credit-for-not-trying dept

We've written plenty of posts about police body cameras -- how useful they can be and how useless they often are. What should result in additional law enforcement accountability has been turned into a mostly-optional documentation system. The new tech and its accompanying guidelines have done very little to increase accountability.

Body cameras are pretty much mainstream at this point, but when excessive force and/or misconduct are alleged, footage captured by police is often nonexistent. Officers disable recording equipment, delete footage, or simply claim the camera "malfunctioned." Some repeatedly "forget" to activate their cameras ahead of controversial arrests and interactions.

But what can be done about it? So far, law enforcement agencies have done little but promise to create more policies and guidelines -- ones that can continue to be ignored by officers who'd rather not create a permanent record of their actions. There's been some discipline, but what little of it there is hasn't been very severe. And stories of repeated tampering with recording devices in some agencies suggests what is in place isn't much of a deterrent.

The ACLU of Massachusetts has a suggestion: if missing/incomplete recordings are central to a prosecution or a civil rights lawsuit, a better deterrent might be to allow juries to impose evidentiary consequences for failures to record. From the ACLU's "No Tape, No Testimony" report [PDF]:

This instruction would tell the jury that, if it finds that the police unreasonably failed to create or preserve a video of a police-civilian encounter, it can devalue an officer’s testimony and infer that the video would have helped the civilian. If the jury finds that the case involves bad faith, such as the outright sabotage of body cameras, then it should be instructed to disregard officer testimony altogether.

This all tracks back to multiple lies told by officers that have been uncovered by cameras carried by citizens. In the Walter Scott shooting, the officer's narrative of a struggle over a Taser was rebutted by a cell phone recording that showed the officer shoot Scott in the back while he ran away from him and then dropping something that looked like the officer's Taser next to Scott's dead body. The ACLU's report lists several other shootings -- like Laquan McDonald's -- in which recordings directly contradicted official police reports.

While this instruction may encourage some officers to record more questionable arrests and stops, it may also encourage more law enforcement agencies to unofficially instruct officers to hold off on writing reports until after they've reviewed recordings. If there's no way of salvaging the incident, recordings will probably continue to disappear, but at least the officer's testimony will disappear right along with it, should the jury decided the missing/incomplete recording was a "bad faith" effort.

Officers have long relied on "our word against yours" to win testimonial battles. But if an officer cannot produce a recording of an encounter, lesser weight should be given to an "eyewitness" whose testimony could have easily been verified but who chose not to document the incident.

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Filed Under: body cameras, jury instructions, police

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