by Matthew Segal
Courts should empower juries to devalue or disregard police testimony when officers fail to turn on their bodycams.
Since 2014, at least 14 people have been killed by police officers wearing body cameras that were either not turned on or not operational. Roughly two months ago, an officer in Charlotte failed to activate his body camera before fatally shooting Keith Lamont Scott. (On Wednesday, news broke that the officer who killed Scott will not face charges.) Days earlier, an officer in Washington, D.C., failed to turn on his body camera before fatally shooting Terrence Sterling. And this past July, an officer in Chicago failed to activate his body camera before fatally shooting Paul O’Neal in the back.
These unrecorded killings threaten to undermine confidence in body cameras. If these cameras are only as good as the police officers and departments responsible for deploying them, then their contributions to police accountability will depend on the very people they are supposed to hold accountable.
But it doesn’t have to be this way. As explained in “No Tape, No Testimony,” a new report by the ACLU of Massachusetts and the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley’s School of Law, police officers and departments are not the only ones who can ensure that body cameras are used responsibly. Courts can do it, too.
Courts can influence body camera usage through a tool that is unique to courts: jury instructions. Consistent with provisions the ACLU recommends that state legislators put into law, the new report proposes a model instruction that would discourage body camera mishaps by empowering juries to devalue or even disregard a police officer’s testimony if, in the jury’s view, the officer unjustifiably failed to record an interaction with a civilian. Courts should consider trying it, for at least three reasons.
First, videos have profoundly shaken public confidence in the capacity of legal proceedings to separate fact from fiction based on witness accounts alone. In Massachusetts, for example, my office represents a woman who was initially charged with assaulting a transit officer after complaining to that officer about how she was treating another woman. But there was security footage showing that the officer actually attacked our client, and prosecutors dropped the case against her and began prosecuting the officer. But when video is absent, court proceedings can too often disadvantage civilians, whose claims can so easily be disbelieved when they contradict officer’s account.
Second, body cameras are probably here to stay, so it is important to ensure that they are used correctly. These cameras can help uncover the truth about violent police-civilian encounters and even deter violent encounters from happening in the first place — but only when they are consistently worn and activated.
Third, when police officers fail to turn on body cameras before shooting someone — as happened to Keith Scott, Terrence Sterling, and Paul O’Neal, all of whom were Black men — they put courts at risk of reaching catastrophically unjust results. A guilty police officer, someone with enormous power, could escape liability. An innocent person could be wrongfully convicted.
Courts should not leave it up to the police to avoid these catastrophes. Accordingly, the model jury instruction in “No Tape, No Testimony” would enable courts to discourage body camera mishaps while also empowering juries to decide when those mishaps warrant consequences for the police.
If the jury finds that the failure to record was unreasonable, then the instruction would authorize the jury to devalue the officer’s testimony and to infer that the video would have helped the civilian. If the jury finds that the failure to record was due to bad faith — like intentionally sabotaging a camera — then the jury would disregard the officer’s testimony altogether. But if the jury finds that the failure to record was reasonable — for example, because the officer kept the camera off due to a department policy respecting civilian privacy — then the officer would suffer no evidentiary consequence in court.
Because it would have juries decide whether to say “no tape, no testimony,” this model instruction is hardly a radical proposal. In fact, courts in eight states — Alaska, Arkansas, Indiana, Massachusetts, Minnesota, New Jersey, Utah, and Wisconsin — already authorize evidentiary consequences that encourage officers to record custodial interrogations of criminal suspects. Adapting this approach to the body camera context would be straightforward.
But it would also be profound.
By issuing this instruction, state courts could improve the odds that violent police-civilian encounters will be recorded, and that courts will just resolve disputes arising from those incidents. And because President-elect Trump could halt the federal government’s recent attempts to improve police accountability, the next big innovation in police-civilian relations might have to come from state courts. When appropriate, judges should allow juries to send a clear message to police witnesses: “No tape, no testimony.”
Matthew Segal is Legal Director of the ACLU of Massachusetts
It was found that several supposed eyewitnesses were never actually eyewitnesses at all. They lied saying a white officer shot Scott and that Scott did not have a gun. These lies led to rioting and destruction in Charlotte.
http://www.charlotteobserver.com/news/special-reports/charlotte-shooting-protests/article117985828.html
“It was found that several supposed eyewitnesses were never actually eyewitnesses at all. They lied saying a white officer shot Scott and that Scott did not have a gun. These lies led to rioting and destruction in Charlotte.”
Not exactly sure why you think this is on-topic. But I do want to say that these kinds of statements I think misunderstand the nature of eyewitness accounts and the problematic nature. This is the same problem we saw in Ferguson and frankly, the same problem we see in courtrooms on an everyday basis – eyewitness accounts are not always accurate or reliable – that doesn’t mean they are intentional fabrications as you assert.
To bring this discussion back to the topic at hand, when Davis Police Chief Darren Pytel was defending allowing officers to view video first, he mentioned that this practice makes their reports much more accurate because of memory issues and the difficulty in a fast moving incident for a trained police officer to accurately recall details of what occurred. The problem right now is a lot of departments are having problems with participation rates and this article is basically calling for juries to disregard testimony when officers do not turn on their cameras. It’s a very interesting question knowing what we do about memory.
Ummm, yes it does.
https://radio.foxnews.com/2016/12/01/charlotte-riots-instigated-by-lying-phony-witnesses/
This again reinforces the necessity of police turning on their cameras even from a self-preservation perspective.
Memory?????
It had nothing to do with memory, it was just outright lying.
I now see you pulled your post.
I pulled it because I wanted to show you a lot of the research on memory. I disagree with your assessment. Neither of us talked to her or were in the room with her or know the conditions under which she recanted her account. There is considerable research on this that suggests she may not be lying.
Here’s a relatively old article from Scientific America that suggests we should not rely on eyewitness accounts: https://www.scientificamerican.com/article/do-the-eyes-have-it/
“Many researchers have created false memories in normal individuals; what is more, many of these subjects are certain that the memories are real. ”
This is the real dangerous part of all of this and why I’m not willing to accept without considerably more evidence that “she lied.” We don’t know the conditions under which she came to give the initial account and we don’t know the conditions under which she recanted it.
All four of these witnesses admitted they didn’t witness the shooting (in one case the mother of the lying witness outed her daughter as a liar who wasn’t even there). It had nothing to do with memory or intimidation.
Why do you stick with this narrative, in this case, when it’s just false?
Because I disagree with you. Regardless, this is not on topic.
BP wrote:
> Ummm, yes it does.
I can think of about 100 times that the “eyewitnesses” made a “mistake” and said the guy who got shot was not “doing anything” or had his “hands up” that turned out to be false but I have never heard of even a single “mistake” where the “eyewitness” said the guy was “attacking the cop” or “reaching for his gun” that turned out to be false (maybe David can post a link to some of these if people really were making “mistakes” he could find hundreds of them)…
SOD, the examples I posted are eyewitness lies, cut and dried. The people admitted to or were outed for not seeing or even being at the actual scene of the shooting. David is so entrenched in this cause that even when obvious falsifications are exposed he still refuses to see the light.
I think that there can be both inaccurate ( albeit sincerely believed ) recollection of events on the part of both police and civilians. There also can be lying by both police and civilians. I think that this is indisputable.
There is however a tendency in our society ( whether warranted or not) to believe the word of police over the word of a suspect. I see the use of body cameras as a check on either the possibility of faulty memory or intent to deceive by either party engaged in the interaction. However, this will only occur if the camera is operating at the time of the interaction. And this is completely the responsibility of the officer. I believe that an instruction to the jury to weigh this consideration against the police as a breech of duty for which we can have no idea of the motivation much as we might discount police evidence from an obviously contaminated crime scene or a breech in the chain of evidence thus making the evidence viewed as unreliable.
Tia wrote:
> There also can be lying by both police and civilians. I think that this is indisputable
Just like I can’t think of a single “mistake” where the friends of a guy who was shot say he was attacking the cop when he really had his hands up I can’t think of a single “mistake” where a cop said the guy had his hands up when he was really attacking.
Tia is correct that BOTH police and civilians lie and it is almost impossible to make a “mistake” when you see a guy attacking a cop to say he has his “hands up saying don’t shoot”…
I assume the folks at the ACLU have already considered this, but I’ll throw it out there: I hope they’re careful not to create an instruction that would limit the effectiveness of defense counsel’s arguments on this point. Defense counsel might argue, for example, that since the officer failed to turn on his camera, the jury should totally and completely disregard the officer’s testimony. If the instruction says something else, which I suspect it would, that might give the prosecution a powerful retort. I can imagine a prosecutor arguing, “Defense counsel has urged you to totally disregard the officer’s testimony. But that’s not what the court told you to do. The court told you to simply consider that as one factor in weighing his credibility . . . .” My specific worry here stems from a general worry that jury instructions are already too long and complicated. When you listen to a judge drone on for 20 or 30 minutes, reading instructions, it’s hard to imagine the jurors absorbing any of it. I’m genuinely ambivalent at the moment, but my point is just that there’s an argument to be made that issues like these should be left to counsel to argue. (Also, what if the one cop who failed to turn on his camera happened to observe something that exculpates the defendant?)
rrdavis
Your concern is appreciated. It has been estimated that the usual patient retains approximately 10% of what the practitioner tells them within a 15 minute appointment. I do not know the answer since so much of our system is dependent on the entirely subjective interpretations on the part of jurors who are frequently selected specifically for their lack of knowledge of the subject at hand. But I do feel that your concern is a very valid one.
Given the fallibility of eyewitness accounts, perhaps we should end the use of juries… logically, a jury deliberates using twelve sets of eyewitness accounts of what was seen and said during the trial… and they have less training for observation etc. than does a police officer…
hpierce
“and they have less training for observation etc. than does a police officer…”
Or than a doctor for example, which admittedly broadens the scope of this conversation to include cases of malpractice where the integrity and actions of the doctor rather than a police officer are being considered by those completely untrained to make such judgements. Many surgeons have adopted the practice of recording every major surgery in order to provide objective documentation of what actually occurred. If this was their usual practice, I would find it questionable why they did not turn on the tape during the one particular surgery that went to trial.
The ACLU advocates legislative action to exclude sworn testimony based on the solitary act that a police body camera was not activated. Disregard whether the omission was an oversight or deliberate, the ACLU judges it to be sinister in intent and therefore the sworn testimony substitute must be compromised or ignored. Nowhere in US law do I know where a witness is legally pre-judged before even taking the witness stand.
Fortunately, our court system does not make such summary assumptions, trusting instead the long established body of law where any act questioned is judged on its individual merits.
Following the ACLU “logic,” if the courts were legislatively required to instruct juries to devalue or disregard law enforcement officer testimony due to a failure to activate a body camera, the officer’s testimony is essentially rendered useless in that criminal case. One can’t even imagine the formula to be used by a magistrate to set a “value” on sworn testimony. A judge openly giving a value assessment of one select witness during jury instruction is not just devaluing, its made useless.
Many times, the arresting officer is the “prime” and often the only witness to a crime. With this ACLU judicial recommendation, crimes where this would be applied would go unpunished simply because the officer didn’t turn on his/her body cam! If an ACLU staffer comes under a serous felony assault, I sure hope the arriving officer coming to the rescue has an activated body cam.
Phil
“Nowhere in US law do I know where a witness is legally pre-judged before even taking the witness stand.”
As always I appreciate your perspective based on your experience. I agree with your quoted statement as written but do not believe that it reflects the outcomes of our judicial system in its entirety. While no one is “legally pre-judged” is great as an aspirational statement. But as a reflection of reality I believe that many jurors pre-existing bias is to trust the police and prosecution over the word of the defendant. I have heard even amongst my own family and acquaintances some expression of the sentiment “after all they wouldn’t have been accused if they hadn’t done something.” While I believe in the sincerity of their belief, it is truly frightening to me that so many seem to see the world this way and I certainly would not want any of them on the jury if I were erroneously accused.
Phil… good comment, spot on… said as someone not in law enforcement, but know you and many in Davis PD… some are/were true jerks, but the vast majority are aces… best…
” If an ACLU staffer comes under a serous felony assault, I sure hope the arriving officer coming to the rescue has an activated body cam.”
What BS, Phil. You know the arriving officer is 6-10 minutes behind the event, is probably not going to do anything beyond asking you for a description of the suspect, which he/she will probably get wrong and then, after telling you why you made yourself a victim, will take the case number from the dispatcher and tell you to call in a couple of days to talk to a report writer. A cop should be damned sure turn on a vest cam or suffer consequences commensurate with the gravity of the act.
This sort of thing isn’t as unprecedented as you seem to think. For jury instructions, see CALCRIM 316 (allowing jurors to discredit a witness with a criminal conviction); CALCRIM 334 (discrediting accomplice testimony unless there’s corroboration); and CALCRIM 336 (in-custody informants should be especially scrutinized). There are also rebuttable presumptions that have long existed in common law (part of the “long established body of law” you refer to). For an example of one that has been codified in California, see Evidence Code section 664 (presumption that government officials do their job).
I don’t mean to discourage you from arguing your case. But claims like “this is unprecedented!,” “it’s unimagineable!,” won’t get you very far.
Inasmuch as the testifying officer does not in the category of convicted criminal, custodial informant, accomplice, none of the citations apply.The rebuttal argument traveled a much shorter journey.
The proposition offered by the ACLU is that legislative authority be enacted to discredit all law enforcement officer testimony in any instance of failing to push a button. Please continue searching to find a legal precedent for such an instance, one involved by legislative action.
(1) yeah, of course I wasn’t saying those instructions already apply to the situation at issue. You said you were unaware of any circumstances where a witness’s credibility is “prejudged.”
(2) this article is about a proposed jury instruction. It refers to a proposed statute, but it’s about the instruction.