In-View Commentary for the Commonwealth of Virginia Public Defenders: Effects of Police BWCs on Public Defenders

In-View Commentary for the Commonwealth of Virginia Public Defenders: Effects of Police BWCs on Public Defenders

Janne E. Gaub, PhD, BWC TTA subject matter expert, Carolyn Naoroz, PhD, & Aili Malm, PhD, BWC TTA subject matter expert

 

As the number of law enforcement agencies equipping officers with BWCs increases, so too has the amount of BWC research (Gaub & White, 2020; Lum, Stoltz, Koper, Scherer, & Scherer, 2019; White & Malm, 2020). However, these studies have almost exclusively focused on the effects of the technology on police behavior, policy, and practice. But BWCs have created a ripple effect throughout the criminal justice system, and the effects on other actors—especially in the courtroom—have been noticeably understudied. While officers generally believe that BWCs enhance evidence quality and lead to a greater likelihood of conviction, only two studies have addressed whether courtroom actors share these views  (Merola, Lum, Koper, & Scherer, 2016; Todak, Gaub, & White, 2018). Similarly, only six studies have addressed the belief that BWCs—by virtue of providing better evidence—can positively affect criminal justice outcomes (e.g., more guilty verdicts/pleas, shorter time to disposition). These studies generally support this belief, but they have significant limitations (Lum et al., 2019). While our understanding of the effects of BWCs on courtroom actors is limited, research on their effects on public defenders is missing altogether. Since public defenders are a critical component of the adversarial court process, this is an unfortunate oversight.

This study’s primary goal was to better understand how local law enforcement’s implementation of BWCs affects public defenders in the Commonwealth of Virginia. With the assistance of the Virginia Indigent Defense Commission (VIDC; the administrative body of public defense offices and attorneys in Virginia), we conducted focus groups with representatives from five public defender’s offices. These officers varied significantly in geography, locality demographics, office personnel, and caseloads. We also conducted basic time-use analysis to examine the amount of time attorneys spend on BWC-related tasks. We highlight some of the conclusions from the study here.

Public Defenders Support BWCs

Our findings indicate that public defenders overwhelmingly supported BWC use by their local law enforcement agencies. They believed that BWCs help everyone to get “a lot closer to the truth.” One respondent noted that it was good to have “an objective view of what actually happened, not subject to everyone trying to remember.” While some attorneys were skeptical of their local law enforcement, many understood that people remember things differently and the truth is somewhere in the middle. It is the court’s job to cut through those differences and find the truth; BWCs were simply one more tool to aid in that venture.

BWCs Support the Goals of Justice

This emphasis on finding the truth naturally led to discussions related to the overarching goal of the justice system. Respondents noted that BWCs often substantially assist with client management, allowing them to better advise their clients. One respondent said, “[BWCs] allow us to show [clients], ‘This is what occurred, this is how the judge is going to interpret this, this is what we advise you to do.’ ” In many cases, footage demonstrates that the police followed proper procedures, eliminating potential defenses: “Being able to eliminate potential defenses is helpful as well. If we know that the stop was good, there was a Miranda warning read, we’re not going to pursue that. I [have] found it helpful […] knowing what we can’t argue.” When discussing the significant variation in discovery processes throughout Virginia, some attorneys spoke very highly of their prosecutors and the shared belief that BWCs help bring everyone closer to a just outcome. As one respondent explained, “We get everything that they have. And part of that is because I think they operate under the philosophy that prosecutors should, and then if he’s not guilty, [they] don’t want to charge him.”

BWCs Create Resource Burden

Given the substantial amount of time spent on BWC-related tasks, it is unsurprising that the primary concern attorneys voiced was the substantial resource burden created for both prosecutors and public defenders. In Virginia, the General Assembly attempted to address this problem with legislature, but only offered resources (e.g., additional personnel) to prosecutors. As our respondents pointed out, this only solves one side of the problem. Public defenders—the embodiment of the constitutional right to counsel—were not afforded the same relief. Public defenders are unable to watch all of the footage, which they feel places them in an ethical quandary of choosing which videos to watch, hoping they do not miss a vital piece of evidence.

What Does This Mean for BWCs and the Justice System?

Ultimately, our study finds that public defenders spend a significant amount of time watching BWC footage. Nearly every public defender believed that he or she spends more time watching footage than prosecutors do. The public defender’s office serves a constitutionally mandated purpose—to provide a competent and zealous defense for all people charged with a crime. Several attorneys noted the fact that one of the driving forces behind the push for police BWCs was renewed dedication to accountability and transparency, but ideals are jeopardized if the footage goes unviewed, discrepancies are dismissed out-of-hand, or footage is deemed mutually disadvantageous to both prosecution and defense and therefore not shown in court. BWC footage shows the realities of police-citizen encounters and these realities do not always fit seamlessly into the cool, calm, and collected atmosphere of the courtroom. Regardless, BWCs are now a prevalent policing tool. Jurisdictions must determine a course of action that accounts for both prosecutors and public defenders and adjust accordingly.