How Courts Could Force Cops To Get Serious About Using Body Cameras

Jurors should be told to question any police testimony involving incidents that should have been recorded but weren't, according to a new report.

It was Barine Deezia’s word against that of the Lincoln Police Department.

Deezia, 36, sat in a Nebraska courtroom earlier this month and testified that he was not guilty of obstructing police or resisting arrest during a March incident in which officers threw him to the ground and broke his shoulder. A few minutes before the scuffle, they had approached Deezia and his friends to ask about a companion who appeared visibly intoxicated. Officers say Deezia interfered and ultimately resisted arrest when they returned to question his friend. But Deezia claims the police used excessive force on him when they smashed his face against a glass door and slammed him onto a brick walkway.

Video evidence is supposed to provide an objective record of the facts when police, defendants and witnesses present opposing narratives of confrontations like this. That’s just one reason body cameras have arisen as a rare point of agreement in the debate over police reform. But as the technology has grown in popularity around the U.S., cases like Deezia’s show why it’s an imperfect solution for issues of transparency and accountability.

The officers who arrested Deezia were equipped with body cameras, but police say they weren’t activated during the incident. At least one body camera was turned on during an initial encounter with Deezia. However, it was off when the officers engaged with the group and the altercation escalated minutes later. The Lincoln Police Department released surveillance footage that appears to show a piece of the scene unfold, but also omits the key moment.

With little evidence to go on, it took the jury only an hour to reach a verdict in Deezia’s case: not guilty on all charges. His excessive force lawsuit against the city is still pending.

“Without the body cameras, they couldn’t take one person’s word over the other,” Seth Morris, Deezia’s attorney, told The Huffington Post.

The fact that the body camera hadn’t been reactivated was a key point of concern for the jury, Morris said. Although the Lincoln Police Department hasn’t crafted an official policy on using the cameras, Morris said it was suspicious that the officer had initially remembered to turn on the camera, only to forget later.

“No matter what did or didn’t happen, it just seems like you’re trying to hide something at that point,” he said.

Still, it could have turned out much differently for Deezia. Jurors often aren’t so skeptical of police. When asked to choose between a defendant’s word and an officer’s, many will simply side with law enforcement.

As the American Civil Liberties Union of Massachusetts and University of California, Berkeley, School of Law argue in a report published Tuesday, this point further underscores just how important it is for police to use body cameras correctly. Such forms of monitoring are supposed to create an unbiased account of what was said and done by each party, which proponents say can keep officers and civilians honest.

But as the devices have spread to police departments around the nation, there have been a number of incidents in which officers have failed to record critical incidents, including fatal shootings. Weak or nonexistent disciplinary rules for officers who fail to abide by body camera policies have compounded these problems.

The ACLU/Berkeley Law report says courts at the state level should pressure police by instructing juries to disregard any testimony given by an officer deemed to have not recorded an incident or to have tampered with footage in a deliberate attempt to conceal the truth. If the jury were to conclude that an officer’s failure to record was unreasonable ― but not malicious ― the court would instruct the jury to devalue that officer’s testimony and infer that the video would have been beneficial to the defendant.

“Courts have a special interest in ensuring that there’s footage available, because they’re the ones responsible for making sure juries reach accurate decisions and don’t lock someone up who doesn’t deserve to be there,” said Catherine Crump, acting director of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law and a co-author of the report.

“If they start imposing those types of consequences, police departments will take more seriously the risk that if you don’t turn these things on, then you’re not going to be able to achieve your law enforcement objective,” she added.

The proposed jury instructions for any case involving an incident that wasn't recorded by body cameras, but should have been.
The proposed jury instructions for any case involving an incident that wasn't recorded by body cameras, but should have been.
ACLU/Berkeley Law

Although body cameras are regularly touted as a way to keep tabs on police brutality and use of lethal force, they’re also essential in much more routine law enforcement activity.

A client of Washington, D.C., defense attorney George Lyon was arrested earlier this year for allegedly having an open container of alcohol in public. She maintained her innocence and said she was arrested because she had an attitude with an officer. Lyon began to prepare a defense because the city was intent on proceeding with the case. When he requested body camera footage from the arresting officer’s camera, he found that it showed the bottles in question were nowhere near his client. The prosecution eventually dropped all charges.

Lyon said he’d be highly skeptical if he were defending a case in which an officer couldn’t provide a good explanation for a deactivated body camera.

“If the police officer doesn’t turn on the camera or somehow the video is erased, I would argue that the jury should infer that the evidence that has been spoiled would have been favorable to a client,” he said.

“If the police officer doesn’t turn on the camera or somehow the video is erased, I would argue that the jury should infer that the evidence that has been spoiled would have been favorable to a client.”

- George Lyon, Washington, D.C., defense attorney

Under the proposal from the ACLU and Berkeley Law, courts would officially offer this guidance to juries.

There is precedent for these sorts of jury instructions. In police interrogations, for example, officers used to be able to question suspects in custody without recording it. Now, over 20 states impose consequences for failing to record, often by instructing jurors to treat testimony with special caution in cases in which there is no video documentation of the interrogation.

States like South Carolina have also passed statutes requiring officers to record audio and video of all DUI field sobriety tests. A failure to do so will typically lead courts to dismiss charges, as they view such oversights as fatal to most cases.

“If the footage shows someone stumbling around, it’s hard for them to say that they weren’t impaired under those circumstances,” Lyon said. “By the same token, if they don’t appear to be impaired, the camera evidence is gonna show that as well.”

Although courts may be able to help force the hand of police who have shown resistance to calls for change, they’re not a substitute for strong body camera policies designed to compel departments to commit to accountability and transparency. Still, in the current political climate, some legal experts believes it may take creative, unorthodox approaches like this to achieve certain policy goals.

“Given what happened in the last presidential election, we may need to look elsewhere for progress on things like police reform,” Crump said. “This is a constructive effort to offer another way forward.”

Clarification: Catherine Crump’s title has been updated to reflect that she is no longer with the ACLU.

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