The Illusion of Accuracy

How Body-Worn Camera Footage Can Distort Evidence

Table of Contents

Foreword

Vanita Gupta, President & CEO

The Leadership Conference on

Civil and Human Rights Each year, more and more police departments across the United States send their officers into the field wearing body-worn cameras. Many believed that by providing first-hand evidence of interactions between officers and the public, these cameras could enhance transparency, improve accountability, and foster greater public trust in local law enforcement. Yet, the promise of these cameras is not guaranteed; in fact, in many jurisdictions, it is not being realized. Without carefully crafted policy safeguards in place, there is a real risk that body-worn cameras could be used in ways that threaten civil and constitutional rights and intensify the disproportionate surveillance of communities of color. To help ensure that these devices become tools of accountability, rather than instruments of injustice, a broad coalition of civil rights, privacy, and media rights organizations came together in 2015 to develop Civil Rights Principles on Body Worn Cameras. Shortly thereafter, The Leadership Conference on Civil and Human Rights and Upturn published the first iteration of the national Police Body-Worn Camera Policy Scorecard, an online resource that evaluates whether the body-worn camera policies of police departments are conforming to these principles and adequately protecting civil rights and civil liberties. Our research has revealed that many police departments are failing to adopt adequate safeguards to ensure that constitutional rights are protected. In particular, we have discovered that year after year, the vast majority of the nation’s leading police departments with body-worn camera programs allow unrestricted footage review – meaning, officers are permitted to review footage from body-worn cameras whenever they’d like, including before writing their incident reports or making statements. This report seeks to illuminate the ways that unrestricted footage review places civil rights at risk and undermines the goals of transparency and accountability. We urge police departments to instead adopt what we call “clean reporting,” a simple two-step process where an initial report is recorded based only on an officer’s independent recollection of an event and then a second, supplemental report can be added to a case file to address any clarifications after footage is reviewed. We make the case that in the interests of consistency, fairness, transparency and accountability, clean reporting should be adopted as a standard practice for all police departments with body-worn camera programs. Ultimately, we must recognize that these cameras are just a tool, not a substitute for broader reforms needed to address police misconduct, build trust between police and communities of color, and ultimately fix our broken justice system. It will take much more work over a sustained period of time to ensure that our system of justice does not target or disproportionately impact low-income communities and communities of color. In the meantime, we will continue fighting for justice and working to build an America as good as its ideals. Vanita Gupta, President & CEO

The Leadership Conference on Civil and Human Rights

Introduction

In August 2014, five Marion County, Florida deputies chased down a suspected drug dealer named Derrick Price. One of the deputies had a body-worn camera, which captured the moments just before Mr. Price’s arrest. The footage appeared to show the deputies in an intense physical struggle: the camera was shaking heavily, and the deputies could be heard screaming at Mr. Price, “Stop resisting! Stop resisting!” Marion County body-worn camera footage The footage appeared to confirm what the deputies later wrote in their incident reports, that Mr. Price was indeed resisting arrest. One deputy wrote that after numerous verbal commands, “the defendant still would not comply,” a claim that seemed plausible enough, even though it’s not directly obvious from the video. Another deputy wrote that as the deputies were approaching, Mr. Price “turned his back toward officers at which time his hands were no longer visible” — this moment wasn’t captured by the body-worn camera because it happened just before the deputy turned his camera on. So while the footage did not show everything, it appeared to reinforce the deputies’ version of events. Incident report of Marion County Deputy Adam R Crawford Except their version of events was an illusion that heavily distorted the truth. A surveillance camera from a nearby building told an entirely different story. That footage showed Mr. Price attempting to surrender voluntarily. He threw his hands up in the air and laid down on the pavement as the deputies were closing in. Once the deputies arrived, the surveillance footage shows them brutally beating Mr. Price, repeatedly striking his head and his torso. Marion County surveillance footage Without the existence of the surveillance footage, it’s likely that the deputies would have gotten away with the heinous beating of Mr. Price. But because other footage happened to exist, the public was able to learn what really happened. Four of the deputies later pled guilty to federal civil rights charges, including one deputy for obstruction of justice for falsifying his police report. The Derrick Price incident underscores why the circumstances under which officers are allowed to review body-worn camera footage and other video evidence must be critically examined. As police departments around the country continue to adopt body-worn cameras, it will soon be routine for police interactions to end up on video. But whether videos will help the public more accurately understand how a particular event truly unfolded — or whether, as in the Derrick Price incident, videos will be used simply to reinforce officer accounts — will depend on whether departmental policies and procedures limit when on-scene officers are allowed to watch footage. Today, most major police departments that use body-worn cameras allow officers unrestricted footage review. Officers may review body-worn camera footage any time they wish, including before and during the process of writing their initial incident reports. Even in cases where officers’ actions are most closely scrutinized, including after a controversial use-of-force incident, officers are often permitted to review footage before giving investigators an initial interview. This report explains why police departments must carefully limit officers’ review of body-worn camera footage. Policies that permit unrestricted review of footage reduce the accuracy of officer reports, and undermine the independent evidentiary and investigative value of police reports. Many departments recognize that body-worn cameras will capture details that are different than what officers remember experiencing. Decades of psychology research has shown that watching video replays can easily change people’s memories, often subconsciously. “Unrestricted review policies undermine procedural justice, violate best practices for preserving eyewitness evidence, and threaten to erode community trust.” Because watching body-worn camera footage can alter an officer’s memory of an event, doing so will likely taint what officers write in their reports. This practice will make it more difficult for investigators, internal affairs, and courts to accurately assess what occurred and whether an officer’s actions were reasonable given what he or she perceived at the time. Unrestricted review policies undermine longstanding principles of procedural justice, violate the law enforcement community’s best practices for preserving eyewitness evidence, and threaten to erode community trust. These policies are antithetical to the primary purpose of body-worn cameras: to enhance police transparency and accountability. But this does not have to be the case. Departments can ensure that officer reports are as accurate and independent as possible by requiring clean reporting. Clean reporting is a simple and sensible two-step process. Step 1: Officers write an initial incident report before reviewing any footage.

Step 2: Once an initial report is filed, officers may then review any available footage and file a supplemental report. The first step preserves a report’s independent evidentiary value, by requiring officers to explain — from their own perspective and memory — what they saw and what they did. The second step gives officers the opportunity to add details from the footage, provide context, and explain any differences between their initial reports and what the footage shows. Taken together, the initial and supplemental reports represent an officer’s most detailed and accurate account of an incident. We are not the first to suggest this solution. Indeed, some major departments have already implemented clean reporting for certain serious use-of-force incidents. Rather, we are insisting that departments adopt this practice far more broadly than it is today. There is no reason why clean reporting could not be adopted in every police department, for every incident with body-worn camera footage. If the purpose of body-worn cameras is to increase transparency and accountability, then clean reporting must become a standard practice.

Clean Reporting Preserves the Independence of Evidence

Adopting a clean reporting process and limiting when officer may review footage is the only fair way to address the concerns raised in this report, about memory distortion, evidence preservation, undue officer credibility, procedural justice, community trust, transparency, and accountability. Clean reporting is a simple and sensible approach that all witnesses, including officers, should be required to follow whenever body camera footage and other video evidence is available. Clean reporting works as follows: initially, officers would write down only the details of an event as they remember it, providing a formal statement and completing any incident-related paperwork. After filing this initial report, officers would then be permitted to review relevant video and file a supplemental report, clearly noting when they watched footage and what information was added after watching it. Several law enforcement agencies already use a similar approach in some cases, including the Atlanta and San Francisco Police Departments. The San Francisco Police Department’s policy comes close to clean reporting — but only in certain case like officer-involved-shootings and in-custody deaths: San Francisco’s policy outlines a two-step process for footage review following certain uses of force The fact that these policies have already been adopted in a few agencies suggests that a two-step, clean reporting process would not be overly burdensome, particularly since officers across departments often already file supplemental reports as new information comes to light. Although limited two-step policies represent steps in the right direction, clean reporting should be a standard process in all cases for two reasons. First, any officer interaction could reasonably result in a civilian misconduct complaint, and when adjudicating those complaints, it’s critical to have preserved an officer’s independent explanation of the interaction. A limited policy that only requires clean reporting after serious use-of-force incidents would mean that many complaint cases (say, for a traffic stop or a stop-and-frisk) would have distorted officer reports. Second, mandating a clean reporting process across all cases would reduce ambiguity for officers, since reporting practices would remain consistent regardless of the type of interaction recorded by the body camera. This would lead to more standardized administration of the reporting process within law enforcement agencies, and greater clarity in the courts about what evidence officers were exposed to before they wrote their reports. Many police executives and line officers have resisted the clean reporting approach, expressing fear they will be penalized for discrepancies between the report and the video by juries and others who are prone to look for evidence of police misbehavior. We are not suggesting that officers should be penalized or disciplined for every discrepancy — just for those where there is clear evidence someone intentionally and materially obscured the truth. The two-step, clean reporting process we propose allows factfinders to explore and understand differences between an officer’s perspective and independent video — to determine what is a legitimate discrepancy and what is an intentional one — ultimately leading to a just and fair outcome for all parties. Clean reporting would benefit everyone across the criminal justice system. It would improve judicial outcomes by preserving the independence of evidence in the service of fair and thorough fact-finding. It would reassure the public that body-worn cameras have utility as tools of accountability, rather than simply instruments for enhanced policing. And importantly, it would help officers themselves, whose actions could be judged based on their perceptions at the time, rather than being held to account for everything that’s shown in footage. If body-worn cameras are help to drive consistency, fairness, and justice, it’s imperative for all police departments with camera systems to prohibit unrestricted footage review and adopt clean reporting as a standard practice.

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