Honest but not accurate

How do we prevent agencies, courts and communities from presuming inconsistencies between a report and video evidence means an officer is lying?


Originally published on the Force Science Institute websiteRepublished here with permission.

By Dr. John R. Black, DBA, and Lewis “Von” Kliem, MCJ, JD, LLM

In 2013, Force Science News shared the story of a Grover Beach, California police officer who was fired after attempting to use his TASER on a kidnapping suspect.

There are many reasons for inconsistencies between bodycam video and an officer's report of what happened on a call.
There are many reasons for inconsistencies between bodycam video and an officer's report of what happened on a call. (Getty Images)

After forcing entry into a garage, officers found the man sitting in a car with the baby in his arms. With only the light from his TASER to illuminate the “pitch black” garage, one officer watched and listened as the baby had to be “forcefully pulled away” from the suspect. The officer later described the suspect as noncompliant, “using his size and arm muscles” to resist arrest.

To quickly end the “struggle,” and without warning, the officer fired his TASER at the suspect’s back. Although nobody was hurt during the arrest (the TASER failed to shock the suspect), there was still a problem. The video captured by the TASER camera did not show any resistance by the suspect – not when the baby was taken from his arms and not during the final arrest. Believing the officer had lied to justify his excessive force, the city (with the Chief’s support) fired the officer.

Readers familiar with the 2010 Grover Beach case may recall that the officer was ultimately reinstated, but not before three years of back and forth administrative hearings and litigation. The question facing the Grover Beach agency, community and court was whether inconsistencies between an officer’s report and video evidence necessarily means that the officer is lying. As the court concluded, it does not.

Explaining the Differences

It is undoubtedly true that one reason an officer’s report might be inconsistent with video evidence is that the officer has made the conscious decision to lie. That said, the question remains whether there are other, less sinister explanations for these inconsistencies. As it turns out, there are plenty.

In a 2016 Lexipol training program titled Point/Counterpoint: The Debate over Officer Viewing of BWC Video FootageKen Wallentine, senior attorney and graduate of the Advanced Force Science Specialist program, noted: “Cameras don’t track with an officer’s eyes. They don’t capture tactile cues, such as when a suspect flexes muscles and starts to resist. They don’t reveal a suspect’s prior history known to the officer. They don’t record at the speed of life. They don’t capture images in 3-D or represent distances accurately. They don’t accurately reproduce what the human eye sees, and they don’t reproduce the subjective fear an officer feels.”

It seems the judge in the 2010 Grover Beach case made similar observations when she rejected the allegations that the officer made intentionally false or misleading statements: “While in hindsight, and with a calm viewing of a videotape that does not record at the same rate and perception of a human eye, it may appear that the struggle was not as serious as the officer described,” the judge wrote. However, the judge continued: “There clearly, based on the testimony, was more happening at the scene than is viewing on the video and the Court cannot say that the use of the TASER, in this situation, was unreasonable.”

The idea that there could be “more happening at the scene” than what an officer might remember is supported by Dr. Bill Lewinski, executive director of the Force Science Institute. “It is the focus of attention and not the operation of the senses that determines what information is perceived. No matter what is occurring at the scene or captured on the video, if something is not perceived, it cannot be remembered.” Dr. Lewinski continued: “[O]nce our attention is focused on an object, or even a thought, we have a limited capacity to attend to other tasks or stimulus. The resulting attentional tunneling [focused attention] and attentional blindness have been well-researched for decades. These concepts are not usually considered controversial until law enforcement officers fail to report every detail that occurs at a scene.” [1]

The Nature of Inaccuracy

Even though research continues to provide reasonable explanations for memory gaps and perception distortions, trying to distinguish lies from “honest but not accurate” police reporting is an issue that continues to incite controversy and division across the country today.

More than any other time in our history, police leadership and politicians feel immense pressure to restore confidence in communities that have been convinced that American police are not to be trusted. In response, officers are losing their jobs, and in some cases, being prosecuted simply because their version of events is “contradicted” by video evidence.

But what if these contradictions are not actually evidence of intentional deception and instead reflect the predictable outcome of comparing imperfect video against imperfect humans? How do we prevent agencies, courts, and communities from presuming that “inaccurate” or “incomplete” must mean “untruthful?”

Perhaps, we start by attempting to understand the meaning of untruthfulness.

Honest Belief

At the most fundamental level, it is expected that for something to be “true,” what we believe or say must correspond to the way things actually are; this is the concept of coherence. [2] “Untruthful” then is the character of a belief or statement that is merely inconsistent (incoherent) with objective facts.

Now compare “untruthful” with “deceptive.” Deception requires a person to believe or think one thing and consciously express another. [3] “Honest belief” then is what distinguishes “untruthful” from “deceptive.” It leaves room for the inconsistencies that can result from human performance factors – including attention, memory, and perspective. [4]

Honest Accountability

It is critical for police that agencies distinguish between inaccurate (but nonetheless honest) beliefs and deception. In some cases, even the allegation that an officer was “untruthful” can trigger a required disclosure under Brady and effectively destroy the officer’s perceived credibility and challenge the profession’s legitimacy. [5]

While dishonest officers should be culled from the profession, unfairly labeling an officer as dishonest based on the inconsistencies that can result from known, and often unpreventable, human performance factors is itself dishonest and unethical.

Communities are demanding police transparency and accountability. To instead offer them an overly simplistic view of human performance and sacrifice the complexity, nuance, and reality of policing – is patronizing to the community and immoral toward the officers.

NEXT: Would cops notice a gun on the dashboard during a traffic stop?

References

1. Lewinski B. The attention study: A study on the presence of selective attention in firearms officers. Law Enforcement Executive Forum, 2008, 8(6):107-139.

2. Glanzberg M. Truth. The Stanford Encyclopedia of Philosophy, Fall 2018 Edition.

3. Shibles W. A revision of the definition of lying as an untruth told with intent to deceive. Argumentation, 1988, 2(1):99-115.

4. See Artwohl A. No Recall of Weapon Discharge. Law Enforcement Executive Forum, 2003, 3(2):9; Artwohl A. Perceptual and Memory Distortions During Officer Involved Shootings (2008 Update). Paper presented at the AELE Lethal & Less Lethal Force Workshop; and Hope L, et al. Memory and the Operational Witness: Police Officer Recall of Firearms Encounters as a Function of Active Response Role. Law and human behavior, 2015, 40. 

5. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution in a criminal trial has a duty to disclose to the defense, upon request, material information that is exculpatory of the defendant).


About the authors

After a 30-plus year career in the US Army and US Army Reserves and 23 years with the Washington County Sheriff’s Office (OR), Dr. Black is a seasoned, data-driven leadership and training expert. With the majority of his tenure in the US Army and law enforcement aligned with such unconventional activities as counterterrorism, special operations, peacekeeping, and specialized intelligence units, Dr. Black is a highly experienced expert witness for police practices, police training, and officer-involved shootings. Now, as Owner and President of Aragon National, Dr. Black delivers strategic consulting, sensemaking, intelligence and insight generation to law enforcement, civil/military operations, and private businesses to improve decision-making.

With nearly 30 years in the criminal justice profession, Lewis “Von” Kliem, MCJ, JD, LLM, worked as a civilian police officer, attorney, educator and author. Von is an Attorney II for Lexipol, the executive editor of Force Science News and co-owner of Von Kliem Consulting, LLC, where he trains and consults on constitutional policing, use of force analysis, crisis communications and trauma-informed interviewing.  

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