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Opinion Criminal defense group releases recommendations for body cameras

Last week, the National Association of Criminal Defense Lawyers (NACDL) released its report and recommendations on the use of police body cameras, a project two years in the making. The 10 main recommendations address a lot of the points we’ve discussed here before, including who has access to video and when, how and when the cameras should be turned on, and the real concerns about privacy and surveillance. Here they are:

  1. Clear and strictly enforced policies must establish when body cameras will be recording so that the decision of when to record is not left to the discretion of individual police officers
  2. Video must be stored for a sufficient time to allow the accused to obtain evidence that is exculpatory or may lead to the discovery of exculpatory evidence
  3. Arrested individuals and their attorneys must be given prompt access to all body camera video pertaining to a case
  4. Policies must be crafted and equipment must be designed to minimize concerns with the misinterpretation of video
  5. Police officers should not access body camera video before preparing their initial reports
  6. Policies must prohibit the use of any biometric technologies in conjunction with body cameras
  7. Video must not be later viewed to search for additional crimes or take other punitive action against an individual
  8. Adequate resources must be available to ensure ongoing officer training on body camera use
  9. Sufficient resources must be available to ensure that counsel are appropriately trained and that appointed counsel have adequate time and access to experts necessary to render effective assistance of counsel
  10. An independent, non-police agency must retain and control access to body camera footage

For the most part, these are pretty thorough and commendable. I have a feeling that No. 7 will be a tough sell. Police agencies will also raise concerns about the costs of some of these recommendations. Police groups have objected to No. 5 when it has been proposed in some cities, but I think one idea we’ve discussed here at The Watch– first suggested by law professor and former police officer Seth Stoughton — could help convince them. That’s the idea that police officers should be asked to make an initial report without viewing body camera footage, then an additional report after viewing the footage. If there are any disparities between the footage and the first report, the second report should address those.

There’s one other thing the NACDL report gets into but isn’t included in the above recommendations. As we’ve seen with a number of cases, including a story reported by my Post colleagues just this week, body cameras are of little value to transparency if there are no consequences when police officers don’t start recording when they’re supposed to, or when video gets mysteriously deleted or corrupted. There ought to be punitive actions taken against police officers who fail to record. There should be investigations when video goes missing or deleted, especially video that would have been critical to determining what happened during a disputed incident. And the courts need to start punishing the state when such “spoliation” of evidence occurs. Here’s how the report addresses that problem:

Although officer discipline is an important sanction for the failure to record or preserve video, courts can and should consider suppression of evidence to make defendants whole and ensure the important goals of body cameras are achieved. Most states addressing claims of lost or destroyed evidence follow Arizona v. Youngblood, 488 U.S. 51 (1988), which requires a showing of “bad faith” on the part of the police — “an almost impossible bar for criminal defendants.” Courts, however, could properly find that failing to record or allowing footage to be destroyed in violation of an unambiguous recording and retention policy amounts to bad faith.

Beyond the Youngblood framework, jurisdictions should consider adopting statutes or courts rules to ensure the integrity of the fact-finding process when police do not follow established body camera policies. For example, if police fail to record in violation of an unambiguous policy that required recording, the officer could be prohibited from testifying about the observations that were not recorded. Similarly, in cases that require consent by the suspect, police failure to document that consent by a recording should invalidate the consent and result in suppression of the statement. In order to ensure a fair trial, judges should, at a minimum, grant an adverse-inference jury instruction whenever there has been spoliation of body camera evidence.

This should be in both criminal cases and in civil claims alleging police brutality. Without some sort of sanction for spoliation, the use of body cameras don’t really bring transparency, only the illusion of it. And that might be worse than no body cameras at all.