Video evidence: Conflict and controversy
Dash-cams. TASER-cams. Pocket-cams. Jail-cams. Sally-port-cams. Cell-phone videos. Security videos. TV news videos. They’re all out there. Whether on the news or on You-Tube, for better or worse your actions in the street are increasingly captured for the world to see.
What are the strengths and weaknesses of video evidence? Can you stop bystanders from making videos of police incidents? Usually not! Do you show or not show videos to officers before questioning or report-writing? What are the policy, training, and legal implications?
In the aftermath of an incident, agencies are confronted with questions about how to use (or how to not use) video evidence. The integrity of the investigation (or at least the appearance of integrity) is sometimes at stake.
Agencies All Over the Map
Relying on a video from across the street to tell us what happened is often a mistake. Camera angles often do not show what the officer saw. And camera angles often show things that the officer could not have seen from his or her position.
A lack of appreciation for use-of-force dynamics from the officer’s perspective in a critical incident can taint the adjudication of an incident. Hopefully readers are aware of research by the Force Science Institute; dozens of articles on use of force dynamics are available here.
Agency policies are all over the map regarding whether to show involved officers the video before they are interviewed or write their report. Many agencies do not even have a policy on the subject. They wing it in the middle of the night right after an incident occurs, not aware of the impact on the investigation and the public perception of the incident, not to mention the administrative, civil, and sometimes criminal aftermath.
It was my honor a few weeks ago to put together a seminar on this subject for the Peace Officers Association of Los Angeles County www.poalac.org. Key experts on several sides of these issues made presentations to a room packed with law enforcement investigators and managers from five southern California counties.
The seminar explored video evidence issues from the perspectives of investigators, management, unions, and a variety of legal-beagles.
In addition to me, the presenters were:
• Captain Kris Pitcher, Los Angeles Police Department; former commanding officer of LAPD’s Force Investigation Division
• Gary Ingemunson, attorney, Los Angeles Police Protective League, and former police officer)
• Mildred K. “Missy” O’Linn, attorney, Manning & Kass, Ellrod, Ramirez, Trestor LLP; police defense attorney and former police officer
• Michael Gennaco, head of the Office of Independent Review, Los Angeles County; former federal prosecutor
• Cory Brente, Assistant City Attorney, Police Litigation Section, City of Los Angeles
• Michael P. Stone, attorney, Stone Busailah LLP; former police officer; police defense attorney in the three Rodney King cases
What follows are very brief summaries of key issues from the presentations and the panel discussion addressing questions from the audience. Let me give sincere thanks to all the presenters. Special thanks also goes to LAPD Officer Nina Sandoval, who took extensive notes throughout the seminar, and kindly allowed me to use them as I wrote this article.
Perception, Perspective, Memory, and Video
Captain Pitcher studied 24 law enforcement agencies around the country — 20 of them do not show the officers video evidence while four of them show it before formal statements. Recommendations from Force Science Institute founder Dr. Bill Lewinski are to do a walk-through of the scene with the officer and take a formal statement (because it is important to document and preserve the officer’s actual memory of the incident).
Lewinski also recommends that the officer be advised of the limitations of videos and then be shown the video with counsel present.
It’s important to recognize that the officer’s perception of an incident can be different from what is seen on the video, but still be legitimate. After the officer has been shown the video, another interview should be conducted, with the understanding that discrepancies between the officer’s memory and what is seen on the video do not necessarily indicate untruthfulness.
In addition, Captain Pitcher stated that:
1.) People that adjudicate incidents need to know that videos have limitations.
2.) Video cameras record only a portion of an incident
3.) Videos are only a two-dimensional representation of an incident. Video convolutes the incident for the officer, because our brain processes observations in 3-D).
4.) Videos usually do no capture the perspective of the officer at the time of the incident.
5.) Typical video recordings have low light levels.
6.) Some video cameras record at less than 10 frames per second, thus distorting reality; 30 frames per second is needed to establish “real time.”
7.) The officer will give a more global perspective after view a video.
8.) When the officer did not view the video, the officer focuses on his/her memory what happened during the incident.
9.) Agencies need to advise the officers of the limitations of videos.
10.) Many district attorneys and attorneys general strongly prefer independent statements to justify an officer’s action under Graham vs. Connor.
Captain Pitcher said also that seeing the video can create a “false truth” — that there is a concern that officers will change their recollection of an incident to match the video. If the officer believes that the video has the ultimate truth, the officer may change their perspective. It may cause the officer, being afraid of the administrative process, to try to conform their statement to what is on the video.
The video is not the ultimate truth, Pitcher said. Reviewers must determine what the officer knew at the time. He also said that if the video is shown to the officer, all witnesses should see it as well.
Gary Ingemunson said that dash-cams reduce force complaints and alter officer behavior. Ingemunson said also that officers want to see the videos because they are afraid of being accused of a lie if there is something different from their memory on the video
Of 75 personal complaints where there were dash-cam videos, 55 were determined to be unfounded, Ingemunson said. He suggested that officers should be shown their videos so they can be accurate.
Officer perceptions are important, and viewing the video does not change those perceptions, whereas withholding a video from an officer will negatively affect the officer’s perception of the fairness of the investigative process.
Missy O’Linn said that it’s important to have policies and procedures that capture and retain video and audio evidence for at least five years. Agencies should have policies about what evidence will be released to the media and have policies on video evidence issues — not merely make it up as they go along.
O’Linn said also that:
• TASER devices should be routinely synchronized with actual time
• TASER download printouts should be performed for each incident and attached to reports
• Chiefs and media spokespersons should not jump the gun and make fact-filled public statements when facts are not yet determined
She agrees that officers should be allowed to view video evidence after their initial formal “state of mind” interview. O’Linn said there is a real need to create a policy and follow it, because unnecessary problems are being created in the absence of a policy.
Cory Brente said that officers should think like Disneyland cast members — that when they’re in public they’re “on stage” and should act accordingly
In routine matters, Brente is in favor of officers reviewing videos to make their reports more accurate, but that critical incident investigations — shootings and in-custody deaths — are different. Those are subject to more intense investigation and scrutiny, and must be conducted objectively.
Brente suggested that if you are going to show a video to an officer, you should also show it to the witnesses — show it to everyone, or show it to no one.
To enhance the credibility of the investigation; showing videos to officers involved in critical incidents can change their reasonable perception of things and their conviction of what they saw.
Michael Gennaco said that at the Los Angeles County Sheriff’s Department, there is a directive that after a force incident the deputy is interviewed, then views the video afterward. In a situation where the deputy writes a report, a supervisor will review it and the video, then sit down and discuss with the deputy. Fact-based, unbiased investigations are the goal — video is just another piece of evidence, he said.
Gennaco pointed out that consistency and accuracy are not the same things — in the real world, everyone has a different perspective of an event.
People give too much credence to video evidence, according to Gennaco. He said also that by exposing deputies to video evidence, they can be administratively attacked when there are discrepancies.
Michael Stone tells officers that when they view their video, they may not recognize what they are seeing because it is taken from a different perspective than their own.
Stone said also that:
• Officers have the duty to be accurate in our statements and reports
• Officers need to be counseled properly on video limitations
• Good attorneys can explain to juries why there are discrepancies
• It is rare that an officer’s statement will perfectly match what is seen on the video
• An officer’s reality (memory) about an incident is a combination of perception, sequencing, and recall
Many times a video will confuse an officer. Variances in the officer’s recall and what is seen on the video is more pronounced when the event is protracted, dynamic, and violent. Stone says also that an argument in favor of letting the officer review the video is that you would be critical of an officer if he/she did not review all reports and evidence before testifying at a trial. That said, viewing the video too many times can complicate recall issues for some officers.
Four Highlights From the Panel Discussion
1.) There really has not been enough training for investigators on things like cognitive interviewing techniques that would result in more thorough interview statements.
2.) There should be policies and practices in the field regarding when dash-cams should be turned off after an incident is over. But even if they are turned off, the public is still often there with cell-phone cameras.
3.) We live in a world of “instant replay.” We need to use it appropriately. The big question is when are you going to withhold the public access to the evidence?
4.) There are two types of reviewers: one sees a video in the same way the public sees it; the other sees the video with knowledge of its strengths, weaknesses, and limitations.
In conclusion, the handling of video evidence issues is in development. The challenges will not go away, in fact they will intensify as time goes on and more controversial incidents occur.
Has your agency wrestled with the questions?
Note: In my February article, I discussed TASER cases that were heading consideration for the United States Supreme Court. In May, the Court declined to hear the cases. So it will be some months or years before we get national guidance on TASER issues at the highest level. Stay tuned!