As Americans learn more about instances of police abuses, police cameras are having an increasingly profound influence on how the public views encounters between officers and civilians. In recent months, these cameras have exposed both needless violence—like the killing of Laquan McDonald in Chicago—and stunning examples of officers misstating the truth. In Chicago, many officers reportedly engaged in a sort of perverse tribute to the power of video by allegedly tampering with their dashboard cameras. They apparently recognized what is now perfectly clear: officers seeking to explain why a civilian was injured or killed in an encounter with police are now confronted with a single demand: Where’s the video?
The only place where this isn’t true, amazingly, is in court.
Court rules generally do not demand, or even prefer, that police officers prove the facts of their encounters with civilians using police video—such as bodycam or dashcam footage—instead of memory-based testimony. To be sure, officers and civilians use videos in court all the time. But courts rarely call upon the police to come to court with video, even though officers are increasingly well-positioned to record their encounters with civilians.
If an officer fails to activate his or her body camera before arresting someone for disorderly conduct or before allegedly beating someone, the civilian’s lawyer can certainly ask the jury to disbelieve the officer’s testimony about what happened. But the court won’t prohibit the officer from testifying or even instruct the jury to think twice about that testimony due to the failure to record. This leaves civilians stuck in a “he said, she said” box.
This situation cannot stand. In cases when officers had the opportunity to record encounters with civilians, courts should discourage them from resorting to trial by memory.
First, memory is not a recording. It is a complex process that can be impaired by stress or later-acquired information. In fact, the Innocence Project has pegged eyewitness misidentification as the leading cause of wrongful convictions of people later exonerated with DNA evidence. There is no reason to suppose that eyewitness descriptions—especially concerning brief and stressful encounters between officers and civilians—are more accurate.
Second, when violence occurs between a police officer and a civilian, a battle of their memories is not a fair fight. One distressing aspect of the recent police videos is that, even when civilians lived to tell their tales, the officers’ accounts were more readily believed.
As attorneys who have represented both criminal defendants and civil rights plaintiffs, we have seen this dynamic with our clients firsthand. In March 2014, according to the Suffolk County, Massachusetts, district attorney’s office, Boston resident Mary Holmes called 911 to complain about an encounter between a Massachusetts Bay Transportation Authority officer and another woman. Subsequent video showed that the MBTA officer pepper-sprayed Holmes, knocked her phone out of her hand, and arrested her. Yet it was Holmes—not the officer—who was charged with assault, and she might have been convicted if security footage had not persuaded the prosecution to drop the case. The ACLU of Massachusetts, for which one of us serves as the legal director, now represents her in a civil rights lawsuit.
Holmes was fortunate that the encounter was recorded. But many police-civilian encounters are not caught on video, including stop-and-frisks that occur daily in major cities. The few people who have been vindicated with video may therefore represent the tip of a wrongful conviction iceberg.
Furthermore, police departments are increasingly able to record police-civilian encounters, and, in turn, courts have little reason not to reduce reliance on memory. Survey data suggest that 95 percent of large departments have already deployed body cameras or have committed to doing so. Departments with cameras—from Florida to California—have seen reduced civilian complaints. As the benefits of these recordings add up and as storage costs decline, cameras will become, like handcuffs or radios, standard features of police uniforms.
Given the profound flaws of using memory to recreate police-civilian encounters, and given the increasing capacity of officers to record them, courts should not be agnostic about which kind of evidence is preferable. This approach risks injustice in individual cases and will, over time, erode confidence in the justice system. Won’t future generations, awash in wearable cameras, look back on trial by memory with the same bewilderment that we now apply to the medieval practice of trial by combat?
Fortunately, solutions are within reach. Several states, including Connecticut, New Jersey, Massachusetts, and Utah, have responded to concerns about human memory by modifying their instructions on eyewitness identification. And one state has addressed the specific context of police-civilian encounters by introducing a rule that, with some modification, could more broadly require courts to steer police officers away from trial by memory.
In Massachusetts, when the police do not record an interrogation of a suspect in their custody, the defendant can request an instruction telling the jury that the judiciary prefers recorded interrogations “whenever practicable,” and that any unrecorded confession allegedly made by the defendant should be weighed “with great caution and care.” Courts should use a similar jury instruction to encourage the police, whenever practicable, to record stops, frisks, and other encounters with civilians and to inform juries that accounts of nonrecorded encounters are less reliable. In extreme cases, such as the alleged dashcam sabotage in Chicago, courts should be authorized to strike an officer’s testimony.
These reforms would provide a powerful incentive for police officers to record street encounters instead of coming to court with just their memories. True, police cameras aren’t perfect. They do not capture every fact, and often what they do capture is the officer’s perspective rather than the civilian’s. But, by providing an objective record, they can help juries and judges get closer to the truth.
That is what anyone interested in the truth should want. And it is precisely what modern justice demands.
This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, follow us on Twitter and sign up for our weekly newsletter.