Police officer statements captured through body camera footage should be permissible in court as evidence against a criminal defendant only if the officer making the statements testifies in court, argues a forthcoming article in the Fordham Law Review
The authors of the article, William and Mary Law School Professor Jeffrey Bellin and 13th Judicial Circuit of Virginia Law Clerk Shevarma Pemberton, made the recommendation as part of an analysis of preexisting laws governing hearsay evidence and the rising widespread use of police body cameras.
Police body cams typically produce audio and video recordings of police officer actions, observations and interactions with citizens, and while they are generally viewed as checks on police misconduct, they are also a tool for officers to collect evidence against citizens who later become defendants in criminal trials, the researchers say.
Since officers know the footage will be used as evidence, they could control and manipulate evidence during police-civilian interactions in a manner that incriminates civilians.
One way they can do so is through their oral statements. For example, an officer may shout “He is reaching for his gun,” or “He just threw something in the bushes,” when in fact no such actions occurred or at least aren’t corroborated in the video footage.
For that, they should testify and face cross-examination, the researchers say.
The study provides a list of recent events the authors say back up their concern. In Baltimore, police were accused of reenacting drug discoveries for their body cameras. Officers involved in shooting Stephon Clark muted their body camera audio shortly after the shooting. During the 2016 shooting of Alton Sterling, both officers’ body cameras were “dislodged.”
The researchers also found that 70 percent of officers violate body camera policies.
“This is particularly important because the footage produced by police body cameras will much more commonly be used to prosecute citizens than to document their abuse at the hands of police,” the authors wrote.
“This danger becomes particularly significant if police body camera statements are introduced at trial without the live testimony of the authoring officer. Such statements will be admitted with a veneer of reliability despite never having been subjected to an oath, or the “crucible of cross-examination.”
The authors proposed that officers must testify that they cannot fully and accurately recall the incident and vouch for the accuracy of the out-of-court statements. Furthermore, the oral statements in the video must exhibit “excited utterances,” as they are spontaneous and less likely to engage in “conscious fabrication than the reflective mind.”
The authors argued that the media and scholars of body camera footage coverage focused on holding police accountable for unlawful shootings and other uses of excessive force but have ignored examining the extent to which the audio track—specifically statements made in the audio track in body cam footage should be admissible against a defendant in a criminal prosecution.
The full study can be downloaded here.
This summary was prepared by J. Gabriel Ware, a TCR news intern. Readers’ comments are welcome.