The Impact of Body-Worn Cameras on the Burden of Proof and Evidentiary Expectations: A Defense Perspective

Erika Bierma, Senior Associate at Stafford Rosenbaum LLP, Criminal Defense Attorney in the Eastern & Western Districts of Wisconsin and the United States Court of Appeals for the Seventh Circuit

In the era of Law & Order, NCIS, Criminal Minds, and other television crime dramas, the public now expects clear and compelling recordings that document the commission of an alleged crime. At a minimum, they expect to see recordings of the arrival of the police on the scene and footage of the person charged with committing the crime. Body-worn camera (BWC) recordings dwell at the intersection of television drama and real life. But despite the popular imagination, BWC footage is not always the end-all and be-all of a case. This technology has created a new world of potential legal challenges, most of which have yet to be fully understood by law enforcement, prosecutors, defense counsel, the courts, and the public.

Policy

Decisions about whether to use BWCs, as well as policies governing how to use BWCs, vary widely from department to department. Some departments require that every interaction an individual officer has with the public must be recorded. Other departments have “on/off” policies, which allow officers to record some interactions and to turn their cameras off for others. These divergent policies—and officers’ decisions on how to apply them—will almost certainly be the subject of extensive future litigation. In many jurisdictions, the first possible legal challenge raised by a criminal defendant may be to the police department’s camera policy and the footage that does, or does not, exist as a result of the policy and its application. Consider just one small sample of the complexity raised by an on/off policy. Officers responding to a call from dispatch do not know what they are about to confront. They might be heading into a situation in which people have a reasonable expectation of privacy and therefore should not be recorded nor should any recording of them be made available to others. For example, an officer may be assisting a crime victim, talking with a minor, interviewing a confidential informant, or consulting with a backup officer about what the next best course of action would be in an investigation. Some department policies have determined that those types of interactions should not be recorded. A lay person sitting on a jury, however, may wonder, “Why was that interaction not recorded?” Granted, for defense counsel, the absence of a recording or the discretion to not record an interaction creates fodder for cross-examination; however, whether that cross-examination gains traction with a jury is not as clear because the technology is so new and not all agencies use BWCs.

Trial preparation

After all of the preliminary issues are resolved, assuming there is video to be used at trial, additional layers of complexity come into play. Issues will arise in the context of officer recollection versus video footage. For example, officers should not assume that the BWC footage will relieve them of having to write detailed reports. Officers who do rely on footage in lieu of detailed report writing, are risking significant cross-examination by the defense, which would call the officer’s credibility into question if inconsistencies arise. Those inconsistencies would present themselves when the BWC footage contradicts or does not completely support the officer’s recollection of an event. While the inconsistency may be a result of stress or other factors at the time of the incident, it does not absolve officers from having to write a detailed report. The officer must be prepared to testify to the best of his or her memory and be willing to accept that what they saw and felt at the time of the incident may be inconsistent with what the footage shows. The most important lessons for officers are to acknowledge that they are dealing with human beings in peak stress and to recognize that BWCs have limitations. Officers should also understand that there will be contradictions. By accepting the contradictions, officers will be less likely to have the defense catching them trying to change their story to conform to the footage. Another quandary that presents itself is whether, and when, officers should have access to the BWC video footage. Should officers view the video before or after writing their report? Arguably, from the defense perspective, officers should not access the footage to conform their recollection of the incident to the footage. The report should be prepared and the officer should be able to acknowledge the inconsistencies and testify from memory. Officers who try to deny any inconsistencies, any limitations of the equipment, and any room for human error are more prone to getting themselves into trouble on cross-examination. Acknowledgement of the shortcomings of both technology and human memory will make officers appear much more credible in the eyes of potential jurors. 

Court

Now, let’s get to the interesting stuff: court. BWC footage will not save the prosecution in every possible situation. Logistically, a chest-mounted BWC will not always capture what the prosecution needs it to capture. If the officer is shorter than the person they are interacting with, the footage shows very little. A chest-mounted camera shows the individual’s chest almost to his or her waist. It therefore may not show hands or facial expressions, nor is it likely to capture initial potentially “resistive” behavior and other physiological behaviors. Further, chest-mounted cameras have limited audio recording capabilities during a foot pursuit. Rather than capturing speech, the sound recording will be dominated by the jangling of items on the officer’s belt, the footfalls of pursuit, the officer’s breathing—and not much else. Because of outside noise, the footage does not always capture commands of the BWC-wearing officer, responses by the person being pursued, or commands of additional pursuing officers. As with the policies of the departments, the footage (or lack thereof) creates many topic areas to cover in cross-examination. If the camera’s microphone did not work, why not? If parts of the interaction were recorded and others were not, why not? If there are breaks in the recording, why? Why was the footage destroyed (was it deliberate destruction or was it because of department policies about the duration of retention)? The list could go on and on about what happened to cause the footage not to exist or to exist in the manner in which it does. It may raise questions in jurors’ minds about the truthfulness of the officer or the officer’s description of what occurred. From the defense perspective, if an officer were to testify about a client’s resistive behavior and had worn a chest-mounted camera that did not capture any resistive behavior because the vantage point is focused on the torso, the defense would argue that a juror could conclude that there was no resistive behavior, even though the video showed the client breathing hard, turning his wrists, or leaning away from the officer. On the flip side, if the footage showed the client flexing his biceps, yelling at the officer, and struggling, a juror might conclude that he was resisting, even though the video does not show the larger (and potentially exculpatory) context of what else is happening, outside the frame of the camera. A head-mounted camera poses challenges of a different nature. For example, a head mount changes the vantage point and potentially records faces, including those of confidential informants, crime victims, anonymous tipsters, and minors. While the disclosure of information is potentially useful for the defense, identity-revealing camara footage may have a chilling effect on crime reporting or people’s willingness to cooperate with law enforcement. This is a very new legal issue and does not appear to have been litigated through the various courts of appeals, but likely will be as more departments begin to use BWCs. The issues identified above are just the tip of the proverbial iceberg in the area of BWC usage. As more departments begin to use this technology, additional legal challenges will be raised. Challenges related to the policies drafted, the use of the devices, the on/off function of the device, the location of the recording, the use or attempted use of the recording in court, and how the general public (as potential jurors) feel about their interactions with law enforcement being recorded could all create difficulties for criminal prosecution as well as defense.


Erika Bierma regularly appears in Wisconsin State Courts in the Eastern and Western districts of Wisconsin. Her practice includes both criminal and civil litigation, and she has handled and been involved with many high-profile cases. She is a former associate federal defender where she represented individuals accused of a wide range of serious federal crimes.  Some of which include white collar, computer, and tax crimes.  Erika has also represented victims of crimes as well as grand jury and john doe witnesses.

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