ACLU Suggests Jury Instructions Might Be A Fix For 'Missing' Police Body Camera Recordings

from the opting-out-of-creating-evidence-means-no-credit-for-not-trying dept

Fri, Dec 2nd 2016 7:39pm — Tim Cushing

We've written plenty of posts about police body cameras -- how useful they can be and how useless they often are. What should result in additional law enforcement accountability has been turned into a mostly-optional documentation system. The new tech and its accompanying guidelines have done very little to increase accountability.

Body cameras are pretty much mainstream at this point, but when excessive force and/or misconduct are alleged, footage captured by police is often nonexistent. Officers disable recording equipment, delete footage, or simply claim the camera "malfunctioned." Some repeatedly "forget" to activate their cameras ahead of controversial arrests and interactions.

But what can be done about it? So far, law enforcement agencies have done little but promise to create more policies and guidelines -- ones that can continue to be ignored by officers who'd rather not create a permanent record of their actions. There's been some discipline, but what little of it there is hasn't been very severe. And stories of repeated tampering with recording devices in some agencies suggests what is in place isn't much of a deterrent.

The ACLU of Massachusetts has a suggestion: if missing/incomplete recordings are central to a prosecution or a civil rights lawsuit, a better deterrent might be to allow juries to impose evidentiary consequences for failures to record. From the ACLU's "No Tape, No Testimony" report [PDF]:

This instruction would tell the jury that, if it finds that the police unreasonably failed to create or preserve a video of a police-civilian encounter, it can devalue an officer’s testimony and infer that the video would have helped the civilian. If the jury finds that the case involves bad faith, such as the outright sabotage of body cameras, then it should be instructed to disregard officer testimony altogether.

This all tracks back to multiple lies told by officers that have been uncovered by cameras carried by citizens. In the Walter Scott shooting, the officer's narrative of a struggle over a Taser was rebutted by a cell phone recording that showed the officer shoot Scott in the back while he ran away from him and then dropping something that looked like the officer's Taser next to Scott's dead body. The ACLU's report lists several other shootings -- like Laquan McDonald's -- in which recordings directly contradicted official police reports.

While this instruction may encourage some officers to record more questionable arrests and stops, it may also encourage more law enforcement agencies to unofficially instruct officers to hold off on writing reports until after they've reviewed recordings. If there's no way of salvaging the incident, recordings will probably continue to disappear, but at least the officer's testimony will disappear right along with it, should the jury decided the missing/incomplete recording was a "bad faith" effort.

Officers have long relied on "our word against yours" to win testimonial battles. But if an officer cannot produce a recording of an encounter, lesser weight should be given to an "eyewitness" whose testimony could have easily been verified but who chose not to document the incident.

ACLU BodyCameras 11 21 Final (PDF)ACLU BodyCameras 11 21 Final (Text)

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Filed Under: body cameras, jury instructions, police
Companies: aclu

39 Comments

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David, 2 Dec 2016 @ 8:48pm

Wait to view recordings before report?
Who would suggest such a thing? [Oh yeah, right...](https://www.techdirt.com/articles/20131202/08531625430/dallas-pd-rule-change-gives-officer s-72-hours-to-get-their-stories-straight-after-shooting-citizens.shtml)

Good news is they've [backed off from that position](http://www.dallasnews.com/news/dallas-police/2016/08/18/dallas-police-department-ends-poli cy-waiting-72-hours-interview-cops-officer-involved-shootings)
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Anonymous Coward, 3 Dec 2016 @ 12:53am

I like how the ACLU is willing to set the bar higher for one party in a case and not for everyone. Don't think that would fly past SCOTUS very well!
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Anonymous Coward, 3 Dec 2016 @ 3:08am

Great Idea
I like this idea so much that I'd rejoin the ACLU, if they weren't so bad about sharing member contact info with every liberal fund-raising organization in the country.
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Anonymous Coward, 3 Dec 2016 @ 3:32am

simple
If you harm someone and your body camera "malfunctions" you have your brains blown out on the court house steps, period no mus no fuss should sort the problem out fast
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Reality Check (profile), 3 Dec 2016 @ 5:15am

A simple condition of employment.
If you are involved in a shooting or other incident, and your camera is not turned on then you don't have a job anymore.

In addition to any other measures such as jury instructions, this will go a long way toward officers being interested in keeping their cameras running.
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Groaker (profile), 3 Dec 2016 @ 5:52am

I strongly believe that the ACLU's jury instructions are insufficient. If cameras are a part of the uniform of the day and missing or nonfunctional, or if the recording has been altered, the suspect is free to go, and the officer should be fired and have their peace officer license permanently lifted.

Such behavior on the part of the police is malfeasance, obstruction of justice and criminal.

Police should not have the ability to turn off a camera at any time while they are armed.
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Anonymous Coward, 3 Dec 2016 @ 6:21am

Ahem..
"This instruction would tell the jury that, if it finds that the police unreasonably failed to create or preserve a video of a police-civilian encounter, it can devalue an officer’s testimony and infer that the video would have helped the civilian. If the jury finds that the case involves bad faith, such as the outright sabotage of body cameras, then it should be instructed to disregard officer testimony altogether."

Fuck the ACLU, and Fuck you TD for continuing to perpetuate this SHIT!

The Jury can ALREADY DO THIS!

Glad to see the lie of Juries have no power to judge except where the judge says they can judge!

Juries can already choose to decide if someones testimony is utter bullshit on their own fucking power! They can even use Jury nullification and is is more important than all of your worthless fucking votes for President of the United States. As a juror you are NOT REQUIRED to sit there and believe anyone's testimony that has shown to be dishonest, manufactured from thin air, or misrepresented as law enforcement has freely proven they are willing to do.

Listen up you worthless citizens, start performing your damn citizenly duties and start refusing to convict anyone in cases were the police, judge, or DA are participating in the prosecution of someone accused of a crime without good evidence. It's not just your Right it is YOUR DUTY and a DUTY MORE HONORABLE THAN MILITARY SERVICE! Only YOU can prevent the systematic destruction of America by telling tyrannical government that they can no long just put whoever they want in jail because they are driving while black on friday, or because they hurt a little officers feelings, or because of some cocked up law says jail this person.

If the only evidence is the testimony of a COP, you must acquit! REMEMBER a "cop says they saw them" is as trust worthy as a fucking drug addict crapping a sob story while trying to get their next round of smack!

If the law they are being tried on is being misapplied or goes against the Constitution like gun laws, or search and seizure without any warrants then, you must acquit!

People lie, and they will do it just to fuck you over for the lulz!
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Quiet Lurcker, 3 Dec 2016 @ 6:31am

Re: Ahem..
HEY!!!

Let's dial the rhetoric back a bit, huh?
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Anonymous Coward, 3 Dec 2016 @ 6:51am

Re: simple
That's a bit harsh.
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Anonymous Coward, 3 Dec 2016 @ 8:22am

Re: Re: simple
So is what the cops do.
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lareby, 3 Dec 2016 @ 8:29am

Who Supervises Cops ??
.

What do all the well-paid police "supervisors" of these street-cops do for a living ?

These supervisors are supposed to closely monitor the performance of their subordinates... and detect any problems long before it ends up in a court room. Supervisors should be reviewing the Body-Cam footage on a daily/weekly basis -- it should make their supervisory duties much easier (if they cared).

If a street-cop screws up -- the immediate supervisor is usually neglecting his duties. But the police chain of command is always immediately absolved of responsibility.

Ultimate problem is that cops are largely above the law... and do not face the same legal process as other citizens for the same suspected offense. So we citizens grasp at new procedures (like Body-Cams) to get cops to obey the law and honestly perform their duties. It is futile.

Most police departments are corrupt. Nothing will change until the justice system starts treating cops just like anybody else in America.
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Groaker (profile), 3 Dec 2016 @ 9:43am

I have often wondered about criminality in our nation. A democratic republic, or whatever appellation you wish to provide, is reputed to be the best of all governmental types.

Yet with 5% of the worlds population, we have 25% of the worlds prisoners. And one of the highest recidivism rates.

What is wrong with this picture?
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Groaker (profile), 3 Dec 2016 @ 9:48am

Re: Ahem..
You might consider putting a /sarcasm on the end of your amusing satire. Otherwise a few readers might think that you were werious.
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Anonymous Coward, 3 Dec 2016 @ 11:16am

Re: Re: Ahem..
Yea, I should not be so profane about it, I apologize for that.

But I am every bit as pipping hot that American Citizens, the ACLU, and TD straight IGNORE WHY a jury exists.

If the only test a jury needs to make to determine someone's guilt or innocence is to say yes or no that they are guilty then you don't need a jury of the people.

The Jury is 100% there to one, provide a safeguard against systematic oppression by government.

"It is not only [the juror's] rights, but his duty... to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition of the direction of the court."

~John Adams (The 2nd President of the US)

The founding fathers made it clear that a corrupt system of justice will come and that the Jury is the foremost tool at a "Peoples" disposal to stop it. If they cannot secure convictions then they will tire of turning the people of yesterday, today, and tomorrow into criminals!

This cannot happen if the people remain ignorant of their liberty, rights, and duties!
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Anonymous Coward, 3 Dec 2016 @ 11:21am

Re: Re: Ahem..
weirous? I know that is a typo but ironically it's a good one!

I am very "weirous" of this business.

No, there was nothing sarcastic about any of that! Just excessive profanity. If you are fine with continuing to allow politicians to make rules that turn everyone into criminals then I hope you are caught in your own snare! And you better pray that someone like me sits upon your jury if you plan to be spared from it!
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Rekrul, 3 Dec 2016 @ 11:44am

What makes the ACLU think that any judge or prosecutor would ever allow such an instruction to be given to the jury? In fact, they're crazy if they think that any judge or prosecutor would ever allow anyone to even suggest that to a jury.
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Groaker (profile), 3 Dec 2016 @ 1:11pm

Re: Re: Re: Ahem..
weruious was a typo, but your anger is making you wearisome.
It is making you blind to the need for these and stronger jury instructions. That the juror is in the box to determine not only the behavior of the defendant, but the appropriateness of the law. As well as the behavior of the State.

You claim that the jury system is there to protect the citizen from the state, then complain when there are attempts to re-balance the levels of power that currently are overweighted in favor of the state.

Some jury instructions (yes, even for a grand jury) might have led to a better result than what happened. In the following case:

"A North Carolina grand jury chose not to indict a sheriff’s deputy who shot and killed a man after he demanded to see a warrant to search his home last year.

Harnett County sheriff’s deputies banged on John Livingston’s door last November, searching for an assault suspect who was not at the home.

Livingston demanded to see a search warrant, but the deputies had none, so Livingston shut the door in their face.

That prompted deputies to kick in the door where they dragged him out on his porch, placed him facedown, and began beating, tasering and pepper spraying him."

http://photographyisnotacrime.com/2016/04/12/north-carolina-deputy-justified-in-killing-man-asking-f or-search-warrant/
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Digitari, 3 Dec 2016 @ 1:18pm

this is a nice idea but....
Any jury that did "think" for themselves most likely would go to jail for "contempt". Hence the problem (Judges should never be allowed to give juries instructions, only clarifications)
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That One Guy (profile), 3 Dec 2016 @ 1:24pm

Good, but not nearly enough
I agree with the others who've posted, the 'instructions' aren't nearly harsh enough. If there should have been a recording but there isn't the cop's entire testimony should either be barred or thrown out as a complete lie. None of this 'give it less weight', assume that the cop is lying through his/her teeth, and act accordingly.
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orbitalinsertion (profile), 3 Dec 2016 @ 1:44pm

Re: Re: Re: Ahem..
Ignorance is exactly why specific jury instructions would be helpful. In this case it is stressing the believing testimony in whole or in part bit because of the way the system is geared, and the tendency of people to accept that the prosecution is right no matter how bad they or their witnesses look, or just how little evidence they have.

So making the system remind people not only of their rights and duties but their options, should be a good thing.

Should people do better anyway? Sure, but that isn't how people are, really, and less so in some cultures, regardless as to what ideals were theoretically behind their founding.
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Anonymous Coward, 3 Dec 2016 @ 4:05pm

Re: Re: Re: Re: Ahem..
"So making the system remind people not only of their rights and duties but their options, should be a good thing."

Yes 'should be', but unfortunately that is not how it works out. This is one of those things that goes well beyond just the simple issue of this case.

This education needs to happen before anyone is even called to serve.

Have you ever heard this comment before?
"When you go to court you are judged by people too stupid to get out of jury duty?"

This is not just some superfluous issue, there is a deep seated animosity about jury duty by the general public. I once used to be one such person when I was young. I was called and I asked the judge to excuse me because I felt incapable of judging someone, the judge tried to trick me by asking what I though of him, but he failed. I was freshly 18 and hot off the stupid wagon that the public education system unloads on an uncaring public year after year.

What I did not know then, was that not only is jury duty important, it is critical to the proper functioning of a justice system, and the absolute vanguard of liberty. As a young adult I began to listen to more and more politics I started to realize that this nation has gone flipping nuts. We value the vote for President more than we value our vote during jury duty to stop tyranny. I read Washington, Adams, and many others as well as the US Constitution up and down.

Yes, yes it really sounds good to be telling jurors what their responsibilities are during trial, but by that time, there is not enough time to properly inform a juror of their true purpose there, and like others have said here, you will not ever find a judge or lawyer willing to teach them properly because a Fully Informed Juror cannot be threatened or controlled by the Judge and Lawyers... and that is exactly what they want!

Jury duty is so important that citizens should walk in an "already know" what is required of them. All they 'should' need to know is where to sit and which trial to attend!
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Anonymous Coward, 3 Dec 2016 @ 4:15pm

How about....
either make a backup before ANY viewings or editing is done and keep those is a locked digital vault, only to be taken out in case there could be any doubt if editing had been done or important segments deleted (with a warrant perhaps) or make a report filing system that locked the file until a report was approved.
It is freaking insane that anyone have access to material that could end up proving malpractice on their own part.
That doesn't solve the problem with them being able to shut the equipment down though, but it would be a step in the right direction.
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Anonymous Coward, 3 Dec 2016 @ 4:15pm

Re: Re: Re: Re: Ahem..
How is it that you think it is a good idea to be judged by a group of people that just learned what there purpose is?

Every time I turn around everyone just keeps saying, lets have someone in government do this for us, or tell us what to do.

See where this is going? See where this KEEPS going? Go ahead, just keep asking someone in government to pick up after you and make sure YOU do or know your civil duties.

I hope I never have you on a jury judging me!
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DoubleWhumpus, 3 Dec 2016 @ 8:37pm

Re: Re: Re: Re: Ahem..
For the most part, grand juries exist in a vacuum, seeing and knowing only what the prosecutor chooses to tell them. Ken White, the former federal prosecutor at Popehat, says "the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. "(link) Over the period when his office secured 3000-4000 indictments, he only ever heard of a single case where the grand jury didn't go along with the prosecutor. Wail and scream all you want, but grand juries don't do squat to protect anybody's rights.
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Anonymous Coward, 3 Dec 2016 @ 9:52pm

Courts to ACLU:
Ha ha ha ha ha! Good one!
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Anonymous Coward, 3 Dec 2016 @ 9:55pm

Re: A simple condition of employment.
> If you are involved in a shooting or other incident, and your camera is not turned on then you don't have a job anymore.

And how do you propose making the police do that?
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David, 4 Dec 2016 @ 9:19am

Re: Re: Re: Ahem..
I can see you're outraged, and I can understand why. After all, we have 4 boxes that safeguard our liberty: soap box, ballot box, jury box, and ammo box. We're doing a little better with the first 2, but definitely need work on the 3rd one.

Essentially what you are talking about is Jury Nullification. Most courts will never talk about it. Many times prosecutors will voir dire questions looking to excuse people that may possibly understand it. But you're right, we don't need the ACLU or the Courts permission for this. I'm at least glad to see the ACLU kind of leading into this, but I think they are afraid to come right out and talk about Jury Nullification directly.
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Anonymous Coward, 4 Dec 2016 @ 11:20am

Re: Great Idea
Just stop off at a convenience store and get a money order. Send it anonymously. Cost is minimal and they can't get your information.

That being said, a few days ago I was in a conversation with a group. The subject came up of thinking of ways of doing cop stings. Seems there's a perceived problem with LEO veracity in our community and it is believed to be systemic. No one had any good ideas but I thought it interesting that even the hard extremists (right or left) are all drifting to a conclusion I reached over two decades ago: You cannot trust LEO. Not in court and certainly not in interaction. But what are you going to do? I've not found an answer to that whose consequences I'd be willing to accept.
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Groaker (profile), 4 Dec 2016 @ 12:12pm

Re: Re: Re: Re: Re: Ahem..
OK, you have done a whole lot of nay saying, but I have yet to hear you come up with any kind of alternative.

Any stronger statement by the the ACLU would likely lead to the attention of Mr Hang_Them_Without_A_Trial. Lower level politicians would also make hay of their opponents being weak on crime. Even though the crime rate is at a low.

While I agree with jury nullification in principle, it is a double edge sword. The cop I mentioned earlier who murdered a citizen who asked to see a nonexistent search warrant was nobilled by nullification in one of the more egregious abuses of the police state.

Between 2003 and 2014 years some 53 US citizens were killed in terrorist incidents. That number includes the perpetrators (https://www.start.umd.edu/pubs/START_AmericanTerrorismDeaths_FactSheet_Oct2015.pdf)

2016 is the first year that numbers of citizens killed are being counted. Many innocent of any violation, misdemeanor or crime, far more killed for no more reason than disobeying a cop. The number of citizens killed is expected to total around 1600. Large numbers of others have been beaten, mutilated, falsely charged and convicted. Yet the authorities and citizens refuse to make police responsible for their crimes.

Yet citizens are terrified of Muslims, but trusting of police. What kind of an answer do you have for this Ahem?
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Tin-Foil-Hat, 4 Dec 2016 @ 1:46pm

Response to: Rekrul on Dec 3rd, 2016 @ 11:44am
The right to a fair trial is about as respected as all of our other rights. The government has found a way around checks and balances that place the little people in a position of authority. That's why they do everything possible to coerce a plea bargain.
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Padpaw (profile), 4 Dec 2016 @ 2:57pm

Why not just use the term "criminal officers" when talking about police deliberately committing crimes
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Anonymous Coward, 4 Dec 2016 @ 3:00pm

Re: Re: Re: Re: Re: Re: Ahem..
Saw a meme related to this one: Only cops should have guns / Cops murder innocent people. So how do some of the people that hold both these beliefs resolve their inner conflict?
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Anonymous Coward, 4 Dec 2016 @ 3:02pm

Re: Response to: Rekrul on Dec 3rd, 2016 @ 11:44am
This is important, too. The prosecution has made the average citizen afraid of a jury, and sometimes gets people to plea to some lessor charge in order to avoid being found guilty by a jury - even if they have not done anything wrong.
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Anonymous Coward, 5 Dec 2016 @ 1:02am

Re:
Too bad we don't have the tech to detect that the officer is armed and performing an arrest. One solution would be an always-on camera. But that would infringe the privacy of their personal conversations.

Maybe it's time to bring out... robocop :) Oh wait... we don't have the tech for that either...
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Ninja (profile), 5 Dec 2016 @ 3:52am

Hmmmm, this 'public faith' officers and Govt agents generally posses is a dangerous double edged sword. I can see how this can be important in some cases but we can see how widely it is abused. Case point: the car ticket industry that seems to exist virtually everywhere. How do you question your ticket?

There's also another problem that we are seeing here regarding abuse of authority. Recently a traffic guard issued a ticket to a judge. Said judged managed not only to evade the ticket but made the guard pay a fine (if memory serves it was something in the lines of defamation) and got her fired. He virtually destroyed the guard's life. And there's little that can be done about it. Abuse of power has become an epidemic.
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Anonymous Coward, 5 Dec 2016 @ 5:11am

Re: Re: Re: simple
Lowering one's self to the level of one's opponent is never a good idea. We have laws for a reason, perhaps we should follow them before devolving to mob rule.
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Wendy Cockcroft, 6 Dec 2016 @ 5:56am

Re:
For-profit prisons. Ex-felons have no recourse to public funds or housing aid and are discriminated against in a number of ways. Now try looking for a job, jailbird! Good luck with that.

Thus recidivism and high prison population.
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Randolph Jackosn, 12 Dec 2016 @ 1:39am

Re: Body Cames Dash cams for Police
Technology is a must in Police work there's too much temptation in their social work environment, one should not do what they don't want played back on duty! Humans are self preservationist they'll lie! and fabricate to defend themselves as we see the Police do. Accountability or find another field of employment. No excuses allowed ! Police
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Groaker (profile), 12 Dec 2016 @ 6:34am

Re: Re:
I will certainly agree that for profit prisons provide a key part of the problem, and the difficulties of ex offenders finding a way of making a livelihood. But the problem goes deeper than that. A great part is the use of fear mongering with ridiculous crime (currently at a low) as a means of political pandering.

I hear all too many people claim that crime is at an all time high. That people who commit minor violations should be jailed for life. And that if someone is arrested, they are guilty. I have no idea how the public should be educated, but it needs it desperately.
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