OFFICER BODY-WORN CAMERAS—
CAPTURING OBJECTIVE EVIDENCE
WITH QUALITY TECHNOLOGY
AND FOCUSED POLICIES
David K. Bakardjiev∗
ABSTRACT: Body-worn cameras (BWCs) are one of the nation’s latest policing tools
to be used in the effort to increase police department transparency, strengthen community trust, and fight crime. BWCs are touted as game-changing technology in policing
because of their potential to monitor officer misconduct during police-citizen encounters and provide objective evidence. As more police agencies incorporate BWCs into
their policing culture, an influx of video data is being collected for possible use in
criminal prosecution. Although BWCs are revolutionizing criminal proceedings, inadequate or absent police department policies may threaten the potential use of recorded
video as evidence in court. This comment identifies potential evidentiary challenges
that may arise when introducing BWC recordings at trial, and argues that such challenges may be avoided with strong police department policies. It concludes by offering
a BWC policy template designed to promote objectivity and the integrity of BWC
video evidence.
CITATION: David K. Bakardjiev, Comment, Officer Body-Worn Cameras—
Capturing Objective Evidence with Quality Technology and Focused Policies, 56
Jurimetrics J. 79–112 (2015).
The high-profile deaths of Eric Garner1 and Michael Brown2 by police
officers have provoked a national outcry for greater measures in police accountability.3 In response, the White House has requested $75 million from
Congress to implement an additional 50,000 body cameras in police departments countrywide.4 Although a number of police departments have already
∗J.D. Candidate, Sandra Day O’Connor College of Law, Arizona State University; B.S.,
2013, Criminology & Criminal Justice; B.S., 2013, Political Science, summa cum laude, Arizona
State University. The author thanks Professors Sarah M. Buel and Justin T. Ready for their support and thoughtful comments throughout the writing of this work.
1. See J. David Goodman & Al Baker, New York Officer Facing No Charges in Chokehold
Case, N.Y. TIMES, Dec. 4, 2014, at A1. See Ben Kesling & Mark Peters, Ferguson Police Officer
Not Charged in Black Teen’s Shooting, WALL ST. J. (Nov. 25, 2014), http://www.wsj.com/
articles/ferguson-police-officer-not-charged-in-black-teens-shooting-1416882438.
2. See Ben Kesling & Mark Peters, Ferguson Police Officer Not Charged in Black Teen’s
Shooting, WALL ST. J. (Nov. 25, 2014), http://www.wsj.com/articles/ferguson-police-officer-notcharged-in-black-teens-shooting-1416882438.
3. See Ariel Edwards-Levy, Police Body Cameras Receive Near-Universal Support in Poll,
HUFFINGTON POST, http://www.huffingtonpost.com/2015/04/16/body-cameras-poll_n_7079184.
html (last visited Oct. 20, 2015).
4. Andrea Peterson, President Obama Wants to Spend $75 Million to Buy Police Bodycams,
WASH. POST (Dec. 1, 2014), http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/01/
president-obama-wants-to-spend-75-million-to-buy-police-bodycams/.
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integrated body-worn cameras (BWCs) into their policing protocols, many
operate BWCs without sufficient policies and procedures.5 These
insufficiencies may arise from a lack of judicial direction and difficulty in
determining where legal problems will arise. In the United States, long-term
effects of implementing one policy as opposed to another have not been studied.6 Inferences may be extrapolated from similar video recording technologies
with longer police usage such as police cruiser dash cams,7 but BWCs present
new legal challenges because they can capture high-resolution video evidence
almost anywhere.8 Moreover, despite significant progress in recent years to
equip officers with BWCs,9 establish policy guidelines,10 and address privacy
concerns,11 there is little research about how some police department polices
can result in better video evidence than others.
5. Many departments currently do not publicly display their body-worn cameras (BWC)
policies. Generally, this is either because they do not have policies at all, or they need more time
to determine what issues will arise since many BWCs are still in pilot programs. See Sonia
Roubini, Police Need to Make Body-Camera Policies Transparent, ACLU (Dec. 18, 2014, 3:00 PM),
https://www.aclu.org/blog/free-future/police-need-make-body-camera-policies-transparent. See also
NAT’L INSTITUTE OF JUSTICE, A PRIMER ON BODY-WORN CAMERAS FOR LAW ENFORCEMENT 1
(2012) [hereinafter NIJ REPORT], https://www.justnet.org/pdf/00-Body-Worn-Cameras-508.pdf
(suggesting that the failure of police departments to introduce BWC policies will be a major issue
for ensuring BWC video evidence meets courtroom standards).
6. The United Kingdom integrated BWC technology into its policing operations at least a
decade before the United States. MARTIN GOODALL, GUIDANCE FOR THE POLICE USE OF BODYWORN VIDEO DEVICES 6 (2007), http://library.college.police.uk/docs/homeoffice/guidance-bodyworn-devices.pdf. However, the United Kingdom’s experiences are only circumstantial indicators
of the problems that may arise in the United States because of legal structure differences. See
MICHAEL D. WHITE, POLICE OFFICER BODY-WORN CAMERAS: ASSESSING THE EVIDENCE 7 (2014),
https://www.ojpdiagnosticcenter.org/sites/default/files/spotlight/download/Police%20Officer%20
Body-Worn%20Cameras.pdf.
7. See INT’L ASS’N OF CHIEFS OF POLICE, THE IMPACT OF VIDEO EVIDENCE ON MODERN
POLICING 40–43 (2005) [hereinafter IACP IN-CAR CAMERA REPORT], http://www.theiacp.org/
portals/0/pdfs/IACPIn-CarCameraReport.pdf (providing a model policy on mobile video recording). See also id. at 44–50 (providing a revised paper entitled, “Mobile Video Recording
Equipment”).
8. For example, unlike police cruiser vehicle cameras that are primarily limited to recording
street encounters, BWCs offer a dynamic recording experience that follow the officer into many
more situations, such as a residential domestic violence disputes or pursuits of a suspect on foot.
See JAY STANLEY, AM. CIVIL LIBERTIES UNION, POLICE BODY-MOUNTED CAMERAS: WITH RIGHT
POLICIES IN PLACE, A WIN FOR ALL; VERSION 2, at 2 (2015), https://www.aclu.org/sites/default/
files/assets/police_body-mounted_cameras-v2.pdf (stating that “body cameras have more of a
potential to invade privacy than” video cameras on police car dashboards, in prisons, and during
interrogations).
9. See Dana Liebelson & Nick Wing, Most Major Cities Still Don’t Have Body Cameras For
Cops, HUFFINGTON POST, http://www.huffingtonpost.com/entry/police-body-cameras_55cbaac7e4
b0f1cbf1e740f9 (last visited Dec. 19, 2015).
10. See, e.g., BODY WORN VIDEO STEERING GRP., BODY WORN VIDEO: POLICY DOCUMENT
(2013), www.bwvsg.com/wp-content/uploads/2013/08/BWV-policy.doc.
11. The American Civil Liberties Union has expressed several recommendations for BWC
policies to protect privacy and personal information. See STANLEY, supra note 8.
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Capturing Objective Evidence and Avoiding Challenges
Typical factors affecting the admissibility of BWC evidence include
whether the video is clear, accurate, and reliable.12 Key factors like these may
be largely controlled by the quality of technologies selected and strategic police departmental policies. High-quality BWCs with advanced technological
features such as night-vision and pre-event recording buttons may provide
opportunites for capturing greater objective evidence. However, without an
evidentiary-focused framework in place to guide officer use of BWCs, police
departments are less likely to take advantage of evidence gathering opportunities and more likely to run into evidentiary problems in court. Exclusion of
recorded BWC evidence for quality issues will undermine the original purpose
of the technology.
In the policy formation stages of BWC implementation, it is important to
understand the evidentiary goals of the technology and determine whether a
particular policy will contribute to them. Analysis centered on locating existing or potential legal problems from use of the technology in the field may
be a starting point in drafting careful evidence-based policy measures. Special
attention is required for policies that govern recording, transferring, storing,
processing, and managing of videos because they are critical aspects in establishing the accuracy and reliability of videos.
Part I of this comment discusses the need for police departments to establish and apply an objective evidence-gathering policy framework. Part II identifies, analyzes, and recommends various technical and procedural policies that
can be helpful in gathering strong evidence. Finally, Part III offers an
evidence-centered BWC policy model, incorporating the recommendations in
this comment, analyzing additional considerations, and addressing potential
objections and criticisms.
I. THE NEED FOR ESTABLISHING AN EVIDENCE-CENTERED
FRAMEWORK FOR OFFICER BWC POLICIES
BWC policies vary greatly between police departments nationally because
each department generally has discretion to create and implement its own
policies. As a result, some have more detailed and effective protocols for collecting video evidence than others. Police departments with a weaker evidentiary focus in their BWC policies may experience more legal challenges when
offering BWC videos into evidence.
Establishing effective evidence-centered BWC policies starts with understanding the goals stakeholders seek to achieve through adoption of the technology.13 From a legal perspective, there are three broad goals in the
implementation of BWCs, all of which moderately overlap: (1) generating
12. See Craig E. Ferrell, Jr., The Future Is Here: How Police Officers’ Videos Protect Officers
and Departments, 80 POLICE CHIEF 16, 16–18 (Oct. 2013), http://www.policechiefmagazine.org/
magazine/index.cfm?fuseaction=display_arch&article_id=3139&issue_id=102013.
13. Stakeholders of all sorts may benefit from officer BWC recordings—a police agency
pursuing greater community trust, an officer showing that a civilian’s complaint is frivolous, a
prosecutor proving a defendant’s intent, and a defendant attempting to exculpate or exonerate
himself.
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objective evidence;14 (2) securing more guilty pleas and convictions;15 and (3)
judicial efficiency.16 As it follows, video evidence that objectively shows what
happened is more persuasive, which can lead to faster guilty pleas and convictions (of either citizens or officers), thereby conserving greater resources.
Proponents of BWCs claim that the technology will provide legal stakeholders with a factual and objective account of what happened during recorded
police-citizen encounters.17 While defendants, witnesses, or victims can tell
their sides of the story, a BWC record of the event may show the whole
story.18 This claim of objectivity overlooks a number of complex factors including the variability in BWC technology quality and handling, which can
affect the perceptions and interpretations of judges and juries.
However, the ideal of having objective evidence makes the argument for
implementing BWCs across the nation very persuasive.19 The potential for
BWCs to show detailed conversations, emotions, physical wounds, body languages, and other factual minutiae of a police-citizen encounter can turn the
costs of implementing BWCs into a valuable investment.20 Objectivity in
BWC video evidence can offer judges and jurors an opportunity to vicariously
witness the police-citizen encounter from the officer’s field of view.
Although establishing absolute objectivity in BWC video evidence may
be impossible, it is nevertheless a guiding principle for drafting effective BWC
policies. Establishing a framework that operates to increase police-citizen
event coverage and remove subjectivity in video evidence can help avoid evi14. While body camera videos may exculpate an officer for an unfounded citizen complaint,
it is also true that such videos may deter police or prosecutors from pursuing similar claims with
no merit. A PERF survey revealed that the main reason police agencies choose to deploy body
cameras is to provide visual documentation of police encounters with the public. LINDSAY MILLER
ET AL., POLICE EXEC. RESEARCH FORUM, IMPLEMENTING A BODY-WORN CAMERA PROGRAM:
RECOMMENDATIONS AND LESSONS LEARNED 6 (2014) [hereinafter PERF REPORT], http://www.
justice.gov/iso/opa/resources/472014912134715246869.pdf.
15. The IACP conducted a survey in 2004 regarding the use of in-car police camera footage
in criminal prosecutions. They reported that the presence of video evidence enhances their ability
to obtain convictions and increase the number of guilty pleas before trial. Additionally, prosecutors told the IACP that it assists officers with recollection of an event and helps verify the accuracy of reports of an event. See IACP IN-CAR CAMERA REPORT, supra note 7, at 21–22; 29–30.
16. See Ferrell, supra note 12.
17. See PERF REPORT, supra note 14, at 8 (Chief of Police William Landsdowne of Sand
Diego said “‘by capturing an audio and video account of an encounter, cameras provide an objective record of . . . how . . . the problem occurs.”’).
18. See generally PoliceOne Staff, Trending Topics: When the Camera Tells a Different Story,
POLICEONE.COM (Sept. 29, 2014), http://www.policeone.com/patrol-issues/articles/7612644Trending-topics-When-the-camera-tells-a-different-story/ (providing examples of how video evidence refutes suspect accusations).
19. See PERF REPORT, supra note 14.
20. In a recent case, Montana Butte police officers used video evidence to show a dying man
answer questions about his assailant. The video was offered as a dying declaration under Rule
804(b)(2), and “[t]he jury . . . [watched] the victim die.” The officer could have testified about the
event, but it was much more effective for the jurors to “see and hear [the man’s words] for themselves.” Angela Brandt, Butte Police Considers Body Cams After Footage Helps Convict Killer,
MONT. STANDARD (Oct. 10, 2014, 4:45 AM), http://mtstandard.com/news/local/butte-police-consid
er-body-cams-after-footage-helps-convict-killer/article_f02758d2-f6f2-5142-a900-cc52ef34b38b.
html.
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dentiary challenges and strengthen the persuasive impact on the judge and
jury. Such a framework may be obtained with quality BWCs and evidencecentered policies.
II. BWC POLICIES FOR GATHERING
OBJECTIVE VIDEO EVIDENCE
AND AVOIDING LEGAL CHALLENGES
A BWC video must be authenticated before it can be admitted into evidence.21 Under the Federal Rules of Evidence (the “Rules”),22 video recordings
can be authenticated when a witness with personal knowledge testifies that it
fairly and accurately portrays the events it depicts.23 After a video is properly
authenticated and admitted into evidence, its persuasiveness is weighed by the
judge or jury.24 In some cases, poor quality videos may end up harming the
party introducing the evidence because the events can be reasonably interpreted to show the opposite conclusion.
For the vast majority of cases, evidentiary challenges will not likely be an
issue because having some video evidence is generally helpful in understanding how events transpire,25 even if the recording is less than perfect.26
The handful of cases that exclude video evidence will generally do so because
of severe issues in video quality and reliability.27 While successful evidentiary
challenges that exclude video evidence may be rare, these occasions can cause
serious consequences and costs that stand to undermine the purpose for implementing BWCs. With good technology and evidence-centered policies in
place, police departments can have an effective BWC framework for gathering
objective video evidence and avoiding legal challenges.
A. Technology Selection
The framework a police department adopts for its BWC policy is largely
affected by the technology it implements. As a result, choice of BWC
technology may be regarded as one of the most determinative factors in under21. Video evidence is classified as a form of photographic evidence. See FED. R. EVID.
1001–1003.
22. Different States have different authentication requirements, but most states have parallel
provisions to the Federal Rules of Evidence. See Ferrell, supra note 12.
23. See FED. R. EVID. 901(b)(1); see also Nicholas D. Beser et al., Authentication of Digital
Video Evidence, 5203 PROC. SPIE 407, 408 (2003) (“To establish reliability, the party lending the
evidence must show that the video has not been altered, that it accurately depicts the scene, and
that the location, date, and time can be proven. This process is called authentication.”) (footnotes
omitted), http://www.jhuapl.edu/ott/technologies/featuredtech/DVA/DVA.pdf.
24. See FED. R. EVID. 104(e).
25. In a national study, 93% of prosecutors believed video evidence to be an effective tool
for prosecution, while a majority reported seeing a reduction of time spent in court and an enhanced ability to obtain guilty pleas and convictions when they had video evidence available. See
IACP IN-CAR CAMERA REPORT, supra note 7, app. II at ii-2.
26. See, e.g., United States v. Cejas, 761 F.3d 717, 725 (2014) (admitting a video despite
tendency to skip intermittently).
27. For example, a BWC recording captured in a poorly lit setting without night vision
capabilities will often depict a black screen or blurred images. Such evidence could be excluded
for unnecessary confusion and misleading under Rule 403.
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standing the capacity of police departments to implement effective policies. I
suspect the differences in technological limitations between police departments help play a tremendous role in determining which BWC policies can be
adopted, as an initial matter, and which policies ultimately will be adopted.
1. BWCs
Selecting the right BWCs to fit the needs of a particular police department
requires a close examination of the purposes for implementing BWCs.
Important factors include whether the BWCs will have a wide-angle lense to
record a greater field-of-view, high-definition resolution video capabilities to
record greater visual detail and allow for higher zoom quality, and high-sound
recording quality to deduce the context of character dialogs. Other factors,
espeically for police departments include price, durability, tamper-resistant
data transfer, and operational useability.
Police departments have many brands with various options and features to
choose from when searching for BWC devices.28 While police department
budgets limit which BWC systems they can afford, various federal and state
government programs can increase these options with grant subsidies.29 The
retail price of one BWC device is around $500–$900, depending on brand,
model, features, and accessories.30
Recording objective video evidence is not as easy as simply having a
high-definition BWC camera and wide-angle lens available. Other relevant
factors to consider include data storage capacity, battery life, fast-charge capabilities, and automatic low-light features for night-time recording.31 Operational factors like weight, size, and mounting options of BWCs are also
significant considerations because they can affect officer mobility and video
perspective. Some BWCs come with added features such as a pre-event recording button to help officers capture events that occur spontaneously,32 and
28. The Department of Homeland Security created a detailed assessment report comparing
seven notable BWC systems in sixteen different evaluation criteria. See U.S. DEP’T HOMELAND
SECURITY, BODY-WORN VIDEO CAMERAS FOR LAW ENFORCEMENT ASSESSMENT REPORT 2–3
(2015) [hereinafter DOHS REPORT], http://www.firstresponder.gov/SAVER/Documents/BodyWorn-Cams-AR_0415-508.pdf.
29. Press Release, U.S. Dep’t Justice, Justice Department Announces $20 Million in Funding to
Support Body-Worn Camera Pilot Program (May 1, 2015), http://www.justice.gov/opa/pr/justicedepartment-announces-20-million-funding-support-body-worn-camera-pilot-program (“The investment includes $17 million in competitive grants for the purchase of body-worn cameras, $2
million for training and technical assistance and $1 million for the development of evaluation tools
to study best practices.”).
30. See DOHS REPORT, supra note 28, at 12; see also NIJ REPORT, supra note 5, at 5
(“[H]owever, even expensive BWCs are still a fraction of the cost of in-car systems.”).
31. For a comparison of the different types of features, qualities, and strengths among popular BWC brands and models, see DOHS REPORT, supra note 28, at 12–15.
32. Pre-event recording buttons generally range from 10 to 60 second limits. Id. at 13.
Manufacturers use pre-event features as a persuasive selling point. See On Officer Video,
TASER.COM (Oct. 10, 2015), https://www.taser.com/products/on-officer-video (“Incidents don’t
begin and end on your schedule. With a 30-second buffer feature, you won’t miss a critical moment if the camera wasn't on yet. Capture the build-up, not just the action.”).
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automatic GPS tracking to show the precise location of officers in hot pursuit.33
In addition to securing high-quality BWCs as a policy measure, police
departments may implement periodic BWC reviews to ensure the technology
is not outdated. Also, policies requiring scheduled firmware updates to all
BWC devices may be implemented to ensure peak performance. Future features might include automatic video recording triggered by certain noise levels
or spiked heart rate increases of the equipped officer, or facial and voice
recognition capabilities.34
2. Encrypted and Password Protected Storage Databases
The cost of purchasing BWCs may be relatively inexpensive in comparison to the potential long-term costs associated with video storage space and
administrative video processing.35 BWCs that capture high-definition recordings are generally rendered in large digital files. The data storage needs of a
police department depends on a number of factors, including the number of
officers issued a BWC device, the level of crime in the jurisdiction, and the
BWC activation policies adopted by the department.36
During a typical eight-hour shift, officers on average spend “less than 17
percent of their shift interacting with citizens.”37 Assuming a department has
an activation policy requiring all officers to record during all citizen interactions, this equals to almost an hour and a half of recorded footage.38 Police
departments have two main storage options: internal department databases or
external third-party cloud databases. Both options are vulnerable to the risks of
hacking, failed servers, and unauthorized video sharing. Selecting one storage
system over another will depend on the data systems currently in place, budgetary feasibility, and the needs of the individual police department. Police
departments should make it a policy to assess their storage needs annually.
From a policy standpoint, both internal and external storage systems can
be effective in maintaining the integrity and reliability of the evidence, so long
as mechanisms are in place to back up, encrypt, and password protect the
33. See DOHS REPORT, supra note 28, at 14.
34. See On Officer Video, supra note 32 (“[The] Axon Flex [Body Camera] can automatically activate by light bar engagement and other in-car triggers.”). For information on facial
recognition technology see Christopher S. Milligan, Facial Recognition Technology, Video
Surveillance, and Privacy, 9 S. CAL. INTERDISC. L.J. 295 (2000).
35. See WHITE, supra note 6, at 33 (stating that “the cost of data storage and management
can be significant.”); see also Brian Bakst & Ryan J. Foley, For Police Body Cameras, Big Costs
Loom in Storage, POLICEONE (Feb. 6, 2015), https://www.policeone.com/police-products/bodycameras/articles/8243271-For-police-body-cameras-big-costs-loom-in-storage/ (“City officials [in
Baltimore] estimated costs up to $2.6 million a year for storage and the extra staff needed to
manage the video data.”).
36. In Duluth, Minnesota, the city’s 110 officers with body cameras are generating an average of 8,000 to 10,000 videos per month, many of which are kept longer than 30 days. See Bakst
& Foley, supra note 35 (“With an average officer uploading several videos per shift, it doesn’t
take long for data . . . to add up.”).
37. QUINT C. THURMAN & EDMUND F. MCGARRELL, COMMUNITY POLICING IN A RURAL
SETTING, 52–53 (2d ed. 2005).
38. Id.
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video data. Internal storage databases generally require expensive hardware
and routine technical maintenance. Despite initial expenditures, internal database systems may provide greater long-term savings to larger departments that
operate many BWCs and accumulate large amounts of video data daily.
Third-party storage services are generally offered by BWC manufacturers
for an annual fee and only require a computer with internet connection to
begin logging files.39 Such external storage options can allow users to automatically encrypt and back up video data, receive periodic security updates to
prevent hacking, and allow files to be easily accessed by authorized persons
with secure passwords.40 However, the concept of accessing video evidence
remotely and in a private setting may cause misuse problems because there
may be no secure means to monitor the officer’s use of the video. The nature
of police work frequently involves the disclosure of sensitive personal information, which must be protected from abuse.
3. Chain of Custody Management Options
Legal problems with BWC video evidence can arise because of unsecure
data transferring methods from BWC devices to department storage systems,
opportunities for unauthorized modification of original raw data, and mismanagement or loss of data. Police departments may help prevent such problems
with policies that require the use of BWC management tools. Traditional
methods of transferring data require connecting a USB cable from a computer
to the device and copying the video files into the department’s storage system.
Some manufacturers provide innovative solutions such as using docking stations to securely transfer documents or automatic upload via a smartphone
data connection.41
Many police departments across the United States may require some type
of BWC management software to organize and control the flow of incoming
videos.42 Such software might be included with the purchase of BWCs or
licensed with an online subscription. Common management software features
allow officers to perform advanced searches to find files, zoom in and slow
39. See How It Works, EVIDENCE.COM, https://www.evidence.com/ (last visited Oct. 20, 2015).
40. See Evidence Sync: Desktop Evidence Management, AXON.IO, http://www.axon.io/
products/sync (last visited Dec. 19, 2015); Our Security Goes Above and Beyond, Just Like You,
AXON.IO, http://www.axon.io/security (last visited Jan. 5, 2016) (“Yes, our products comply with
industry standards like the FBI CJIS Security Policy. But they also exceed them. No one is forcing
us to do things like protect our facilities with biometric controls, conduct regular vulnerability
tests, or keep a seven-figure cyber insurance policy. We just do them, because it’s how we’ll keep
your trust.”).
41. See On Officer Video, supra note 32 (“When your shift is complete, our technology goes
to work for you, automatically uploading your data to the cloud. And forget dead batteries. Your
Axon device will simultaneously recharge in the dock. When you’re ready for tomorrow, Axon
will be too.”); see also id. (“Our cameras come with a mobile application that lets you stream, tag,
and replay your videos. Get organized right from the field so your data is easily searchable later.”).
42. Lucas Mearian, As Police Move to Adopt Body Cams, Storage Costs Set to Skyrocket,
COMPUTERWORLD (Sept. 3, 2015, 2:45 AM), http://www.computerworld.com/article/2979627/
cloud-storage/as-police-move-to-adopt-body-cams-storage-costs-set-to-skyrocket.html (“[W]ith
the increasing use of body cameras . . . the amount of video content now being generated is far
more difficult to manage locally.”).
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down video options, tag critical points in videos, and insert commentary, reports, photographs, and other relevant documents to each video file for future
review by attorneys and supervisors.
Security features of management software might include digital fingerprint and computer IP authorization, real-time threat detection, periodic vulnerability testing, and detailed trustworthy auditing features.43 In addition,
some management software security features include pending deletion periods,
workflow approval checks, assignable retention periods, and administrative
control options, which allow supervisors to limit user access and functionality.44
B. Collecting Video Evidence
While the use of quality BWC technology provides the opportunity to
capture more detailed evidence, having high quality BWCs means nothing if
officers are not hitting the recording button. Therefore, for collecting objective
evidence, how police officers use their BWC devices is equally as important as
having quality technology. As such, police departments should implement
training sessions for police officers in the art of effective recording techniques
and outline situations for camera activation.
1. BWC Training Certifications
Police officers go through many physical and educational trainings on
how to effectively respond to calls for service. In terms of BWC trainings,
police officers will need to learn how to use BWC devices and manage the
data. However, it is unclear what additional BWC trainings police officers will
receive, as all police departments generally have discretion to set continuing
training sessions for their line officers. From an evidentiary perspective, it may
be helpful for police departments to consider implementing optimal BWC
positioning, hearsay recognition and prevention, and juror-bias mitigation
trainings as a policy measure to increase the potential strength of video recordings.
a. Optimal BWC Position Training
It has been said that “[t]he ideal system from an evidentiary standpoint
would be one where [the encounter] . . . is recorded without interruption.”45
There are an infinite number of ways a BWC can lose focus and fail to record
the most critical moments of an encounter. BWC focus problems are likely to
cause the most litigation because such videos can be reasonably interpreted in
43. Compare Security: Our Security Goes Above and Beyond, Just Like You,
EVIDENCE.COM, https://www.evidence.com/security (last visited Jan. 21, 2016) (contrasting the
security features of Evidence.com with cloud housing and on-premise solutions) with Product
Software, VIEVIEW.COM, http://www.vievu. com/vievu-products/software/#vievu-solution-hosted
(last visited Jan. 21, 2016) (analyzing the benefits of VERIPATROL storage solutions).
44. Id.
45. See POLICE COMPLAINTS BOARD, ENHANCING POLICE ACCOUNTABILITY THROUGH AN
EFFECTIVE ON-BODY CAMERA PROGRAM FOR MPD OFFICERS 6 (2014).
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many contradicting ways. Therefore, ensuring officers receive training in how
to position their BWCs is important to prevent incomplete videos, which could
be interpreted subjectively.
Because different BWCs have various mounting locations, the training
curriculum imposed by the police department must be tailored to the specific
BWC technology used. Some BWCs are mounted on the officer’s head via
glasses, while others can be mounted somewhere on the officer’s uniform.46
Head-mounted BWCs have certain advantages over torso mounted BWCs, in
that the camera moves dynamically in the same direction as the officer’s head
(which presumably focuses on the most important information), and the head
acts as a natural gyroscope to keep the camera recording steady.
In contrast, one advantage of torso-mounted BWCs is that they are generally less expensive than head-mounted BWCs. However, officers with a BWC
mounted on their chest might unintentionally cover up the lens when extending their arms out to aim their firearm at a dangerous suspect. BWCs that
lose focus during moments like these not only fail to capture the most crucial
details of the event, but also produce highly subjective video evidence. While
head-mounted BWCs can aid in maintaining camera focus, virtually all BWCs
may lose focus and picture clarity from jerking motions and accidental shifting, which can be caused by running towards fleeing suspects and physical
takedowns.47
In these high-intensity moments, the resulting lack of BWC focus is likely
to cause the most amount of litigation. In most cases, there is no easy remedy
for fixing these focus issues because the risk of physical engagement is not
always predictable, let alone the extent. In some cases, officers will not have
time to worry about their BWC because they will be preoccupied with defending their lives and protecting the lives of others. Nevertheless, police departments may choose to adopt policies requiring officers to complete BWC
optimal position training to acquire steady recording and camera focus techniques in physical situations.
b. Hearsay Recognition and Prevention Training
Citizens are often unaware they are being recorded by traditional devices
such as audio recorders, CCTVs, and vehicle camera systems. Because BWCs
are typically mounted on conspicuous areas of a police officer’s body, citizens
may come to realize they are being recorded during their interactions with
46. See Cyrus Farivar, Oakland Cops Disciplined 24 Times for Failing to Turn on Body-Worn
Cameras, ARS TECHNICA (Dec. 15, 2014, 3:12 PM), http://arstechnica.com/tech-policy/2014/12/
oakland-cops-disciplined-24-times-for-failing-to-turn-on-body-worn-cameras/ (depicting images
of how a video camera lens mounted on the chest can be positioned either too high or too low); see
also RIALTO POLICE DEP’T, POLICY MANUAL § 451.4.B (2013) [hereinafter RIALTO POLICY], http:
//www.lris.com/wp-content/uploads/2014/09/Rialto-Policy-on-Body-Cams.pdf (“Officers shall
position the camera on their on their uniform to facilitate optimum recording field of view.”).
47. See Colton Lochhead, 400 Officers Involved in Metro Body Camera Study, L.V. REV.-J.
http://www.reviewjournal.com/news/las-vegas/400-officers-involved-metro-body-camera-studyvideo (last updated Nov. 12, 2014, 7:39 PM) (“It won’t be uncommon for the camera to move, fall
off or even have the wire ripped out if an officer has to get physical . . . .”).
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police officers, especially as this technology continues to be used in more
places around the nation.48 The presence of BWCs could change the dynamic
of whether a statement is admissible in court.49 While BWCs can reduce the
frequency of “he said, she said” conflicts during event recollection, hearsay
problems can arise when citizens try to take advantage of BWC technology
and make statements with the anticipation that the recordings will be used in
trial.
Problems involving hearsay in video recordings are handled the same way
as all hearsay—it is excluded unless it can be admitted under a federal statute,
a rule prescribed by the Supreme Court, or an exception.50 However, excluding
or extensively editing a video with hearsay can be difficult. One can imagine a
recording packed with inadmissible hearsay and highly prejudicial statements
interlaced between the most valuable and relevant nonhearsay statements.
Further assume these nonhearsay statements are necessary to win, but the
video recording had to be extensively edited such that if the jury had heard the
recording without the prejudicial or hearsay statements it would be seriously
misleading.
In this scenario, an otherwise guilty defendant stands a very high chance
of being acquitted. While it is difficult to control what suspects say during
encounters, department policies can require officers to go through trainings
that could allow them to quickly recognize hearsay and control the flow of the
conversation with questions that require personal knowledge.
c. Juror Bias Mitigation Training
Presenting video evidence might keep a jury’s attention longer than presenting traditional evidence such as documents, charts, and graphs. While
BWC videos can increase juror confidence, it is possible jurors could also be
influenced by extralegal information. Locating juror bias in evidence is challenging at times because it is not entirely clear what information will affect a
juror’s ability to render an impartial verdict. Usually the judge will give a
48. See Tony Farrar & Barak Ariel, Self-Awareness to Being Watched and Socially Desirable
Behavior: A Field Experiment on the Effect of Body-Worn Cameras and Police Use of Force,
POLICE FOUNDATION 3 (Mar. 19, 2013), http://www.policefoundation.org/?s=Self-Awareness+
to+Being+Watched+ (“When we become aware that a video-camera is recording our actions, we
also become self-conscious that unacceptable behaviors are likely to be captured on film, and the
perceived certainty of punishment is at its highest.”).
49. The presence of a BWC could make it harder for a citizen to introduce an otherwise
excited utterance exception because the court may find it more likely that the statements were
testimonial under the Confrontation Clause of the United States Constitution, and therefore inadmissible. See Crawford v. Washington, 541 U.S. 36, 59 (2004) (holding that out-of-court statements that are testimonial in nature are not admissible unless the declarant is unavailable to testify
in court and the defendant has had an opportunity to cross-examine the declarant); see also FED. R.
EVID. 804 (hearsay exception for excited utterances).
50. See FED. R. EVID. 802 (rule against hearsay). See also id. at 803–04, 807 (FRE exceptions).
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limited evidence instruction to remind the jury to only focus on the relevant
information during deliberation or require portions to be redacted.51
However, video evidence can showcase more extralegal information to the
jury than other types of evidence. Indeed, a great deal of information can be
conveyed through video, even without listening to the audio.52 Jurors can infer
religion when they see a cross hanging on a wall, financial wealth when they
see expensive cars, and sexual lifestyles when they see same-sex partners.
Even more can be inferred in video recordings with audio. For example, use of
profanity, racial slurs, and disrespectful tones may have a latent and cumulative effect on a juror’s decision making.53
Police departments may try to reduce prejudicial effects in BWC recordings by prohibiting officers from using negative language, such as swearing or
making sarcastic remarks during recorded interactions with citizens.54 Police
departments can also implement trainings that teach officers how to relocate
their interactions with citizens to a neutral setting when it is reasonably safe.
Police departments that disincentivize use of negative language and train officers to relocate away from prejudicial settings can decrease the chance of
needing to redact portions of video evidence.
2. Officer Shift Procedures
Many of the actions officers take during routine activities are guided by
policies that enhance public safety and conflict resolution. With the introduction of BWCs, police departments will need to outline similar procedures to
minimize problems with BWC handling and event coverage. Potential problems such as tangled wires that affect officer mobility, depleted battery life,
and full internal storage capacity may be mitigated with strategic procedures.
In this section, possible shift procedures will focus on the policies that can be
51. See FED. R. EVID. 105 (rule for limiting instructions); see also Roselle L. Wissler &
Michael J. Saks, On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction
Evidence to Decide on Guilt, 9 LAW & HUM. BEHAV. 37 (1985) (debating whether a limiting
instruction might be more harmful than good because telling the jury not to take certain information into consideration during deliberation can have the opposite effect of calling more attention to it). But see David Alan Sklansky, Evidentiary Instructions and the Jury as Other, 65 STAN.
L. REV. 407, 409 (2013) (arguing that jury “instructions probably do work, although imperfectly
and better under some circumstances than others.”).
52. Facial expressions and body language can convey prejudice as easily as words. MODEL
CODE OF JUDICIAL CONDUCT r. 2.3 cmt. 2 (AM. BAR ASS’N 2015).
53. See generally Dean A. Stowers, Note, Juror Bias Undiscovered During Voir Dire: Legal
Standards for Reviewing Claims of a Denial of the Constitutional Right to an Impartial Jury, 39
DRAKE L. REV. 201 (1989–1990) (discussing types of latent juror bias).
54. On the other hand, for example, the Seattle Police Department specifically makes it a
point in its policies to say minor misconduct, such as the use of profanity, will not result in officer
discipline. See SEATTLE POLICE DEP’T, BODY-WORN VIDEO PILOT PROGRAM, POLICY 16.091, §
POL-2.3 (Dec. 19, 2014) [hereinafter SEATTLE POLICY] (“Minor Misconduct Discovered During
BWV Review Will Not Result in Discipline . . . . [E]xamples of minor misconduct include but are
not limited to uniform violations, rudeness, and profanity.”), http://www.aele.org/seattle-pdbwc.pdf. However, the Seattle Police Department makes an exception in saying that “[p]rofanity
and slurs that disparage a protected class under city, state, or federal law are not considered minor
misconduct.” Id.
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implemented before starting a shift, while on shift, and immediately after an
officer’s shift.
a. Pre-shift Procedures
When an officer arrives to the police department to prepare for work, he
must generally perform a number of tasks before he can begin patrol duty,
such as checking his firearm, utility belt, and uniform.55 This is to ensure the
officer is properly equipped to handle the risks of engaging in dangerous situations with the public. With the adoption of BWCs, officers will need to perform a checklist inspection of their BWC devices as well to ensure it is
functioning properly before starting a shift.
While there are many procedures police departments may require officers
to follow for BWC operation, they are all structured around the goals of ensuring the BWC device will work properly and remain focused and unobstructed throughout the entire shift. Chronologically speaking, the first check
an officer should perform on the BWC and its accessories is for signs of visible damage. Then the officer can check to see whether the battery is full, the
battery can hold a charge after it is undocked from a charging station, the internal storage contains no recordings from a previous shift and is empty, the
date and time stamp is correctly displayed,56 and all buttons are functioning.
Once the officer has determined with reasonable certainty that the BWC is
functioning properly, he should check that all parts, accessories, and cables are
accounted for, undamaged, and securely and properly fastened to the mounted
location on the officer in accordance with the manufacturer’s design or a position that best captures the officer’s point of view. Finally, the officer may be
required to ensure the center of the BWC lens is unobstructed, front facing,
and right-side up before deploying for patrol duty.
b. On-Shift Procedures
While on patrol, additional procedures may be implemented to maintain
proper function of the BWC device and increase evidence objectivity. Over
prolonged use, BWCs may run into technical problems such as a dead battery
or full internal memory storage. It is important that police departments implement policies that mitigate and prevent potential recording problems.
The timing of when officers are expected to perform BWC checks may be
limited to instances where the officer has downtime or is in a reasonably safe
location. It is recommended that throughout the duration of a shift, officers
perform intermediate inspections and maintenance procedures to their BWCs
immediately after a call for service or encounter has concluded, between calls
for service, or at other times when it safe and practical to do so.
55.See Tim Dees, What Does a Police Officer Do in a Typical Work Day?, HYPERINK, http://
www.hyperink.com/What-Does-A-Police-Officer-Do-In-A-Typical-Work-Day-b5804172C4Ca32
(last visited Jan. 18, 2016).
56. The date and time stamp on the BWC device may not automatically correct for daylight
savings. In such cases, “the actual date and time must be prove[d]” by witness testimony. IACP
IN-CAR CAMERA REPORT, supra note 7, at v-5.
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Such intermediate inspections and maintenance procedures may include
(1) ensuring all parts, accessories, and cables are accounted for, in working
order, and securely fastened to the mounting location, (2) repositioning the
center of the camera lens to the front-facing and unobstructed position if it
accidentally shifted during a previous citizen encounter, (3) charging the BWC
battery when it reaches below fifty percent battery life, and (4) uploading
BWC recordings to the department storage database via any police department
approved safe and secure medium allowed.
c. End-Shift Procedures
Similar to pre- and on-shift procedures, police departments have discretion to impose end-shift procedural requirements for officers to ensure all
captured data is securely transferred into the department’s storage system and
the BWC devices are prepped for use in the next shift. While the pre- and onshift procedures focus on collecting objective data, end-shift procedures focus
primarily on the secure and immediate transfer of the videos, which are important to establish chain of custody.
When the officer returns to the department after completing his shift, the
BWC should be connected to the loading dock or other secure connection
medium, and all the files should be transferred into the department’s storage
system. Once they are uploaded, the videos in the internal memory of the
BWC should be completely emptied, and the BWC stored in a safe location
under lock. Failure to transfer the video data and leaving the device unattended
may cause a chain of custody issue.57 Although such issues might be rare, the
best practice is to always have procedural mechanisms in place to dismiss
these claims by showing each link in the chain of custody.
3. Officer BWC Activation Policies
A controversial topic of BWC police department policy is deciding what
activation policies should be adopted.58 There are two polar-opposite perspectives in terms of BWC activation requirements: (1) mandatory activation and
(2) discretionary activation. On one hand, a completely mandatory activation
policy would be impractical because of storage constraints and privacy con-
57. See United States v. Rawlins, 606 F.3d 73, 82–83 (3d Cir. 2010) (concluding that
twenty-four-hour watch over particular evidence is not necessary; all that is required is sufficient
proof for the fact-finder to reasonably believe that the evidence still is what the prosecution claims
it to be); see also United States v. Prieto, 549 F.3d 513, 525 (7th Cir. 2008) (admitting evidence of
drugs government confiscated because no evidence in the record indicated the drugs left police
custody).
58. PoliceOne Staff, Privacy vs. Protection: When Police Body Cams Should and Shouldn’t
Record, POLICEONE.COM (Mar. 4, 2015), http://www.policeone.com/police-products/body-camera
s/articles/8388104-Privacy-vs-protection-When-police-body-cams-should-and-shouldn-t-record/
(“Policies differ from one agency to the next, and as we watch cases go to trial in the coming
months and as more agencies adopt policies, you can bet those policies will evolve to reflect what
works best for officers and the community.”).
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cerns.59 On the other hand, a completely discretionary activation policy could
lead to misuse or very little use. Most police departments follow a mixed approach by outlining circumstances that require mandatory, discretionary, and
prohibitory recording.
In considering the following discussion, keep in mind that it is not feasible
or practical to outline all possible circumstances in each activation category.
Because there are many situations where activation is appropriate, many departments include specific activation policies for the most warranted situations.60 Oftentimes it may be difficult for a police officer to assess which
events fall under the correct activation category because many things can happen in one event encounter that could require the inconsistent compliance of
mandatory and prohibitory activation procedures. In such cases, it may be best
to implement a discretionary policy that requires officers to use their best
judgment and err on the side of activation when safe to preserve potentially
relevant evidence. Overall, a balance of activation policies must be carefully
selected by weighing the needs of the situation, such as protection of privacy
during questioning of a victim, against the value of having video evidence
over other traditional evidence such as photographs and police reports.
a. Mandatory Activations
Police departments outline various scenarios that warrant mandatory
BWC activation because, in such situations, keeping a video recording of the
event works towards the purpose of implementing BWCs—to collect relevant
objective evidence. However, mandatory activation policies are not always
easy to follow as casual encounters sometimes escalate into life-threatening
situations that can make turning on a body camera impractical.61 Yet, with
strategic mandatory policies in place, such problems can be avoided.
For example, a policy may require all officers to turn on their body cameras right before stepping out of their patrol car and engaging in the call for
service. Then if the officer must pull out a firearm to force a dangerous suspect
to get down on the ground, he will not need to remember to turn on the BWC
or lose focus and put himself at risk by turning it on at this critical time. It also
has the added benefit of providing greater event coverage to show a more
complete picture of the events that led up to critical moments like a shooting.
In addition, it may reduce the visibility of suspects seeing officers turn on a
59. Id. (“A survey found that although 70 percent of officers were in favor of using body
cameras, most were opposed to a policy that would make recording all police contacts mandatory.”).
60. See, e.g., RIALTO POLICY, supra note 46, § 451.2.G (“There are many situations where
the use of the [BWC] is appropriate. This policy is not intended to describe every possible circumstance.”).
61. Memorandum from Chief of Police, L.A. Police Dep’t, to the Honorable Bd. of Police
Comm’rs 2 (Apr. 23, 2015) (on file with the AELE Law Enforcement Legal Center), http://www.
aele.org/lapd--bwc(proposed).pdf (“If an officer is unable or fails to activate the BW[C] prior to
initiating an enforcement or investigation contact, fails to record the entire contact, or interrupts
the recording for any reason, the officer shall set forth the reasons why . . . .”).
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camera and making false statements in anticipation of having the video used as
evidence in court.
b. Discretionary Activations
To mitigate the costs of video storage and the need to vet and process long
videos, many departments give their officers discretion to continue recording
their BWC during shift breaks, administrative tasks, and other situations where
no evidentiary benefit is likely,62 so long as it does not violate an individual’s
privacy and is not done so for inappropriate purposes.63 However, outside of
these situations, activation policies are critically important because they can
prevent officers from arbitrarily turning off a camera to hide misconduct during event encounters.64 Such problems may result from policies that lack disincentives and allow officers to arbitrarily “cherry-pick” BWC activation
times.65
Although certain Rules of Evidence prohibit the intentional destruction of
admissible evidence,66 there are no similar provisions to prohibit the intentional omission of capturing video evidence, unless provided in the police
department BWC policies.67 Failing to record certain use-of-force events,
when there was an opportunity to do so, will require an explanation in court.
The judge, however, may accept a police department’s argument that it was
impractical to record the event, but may presume all things against the wrongdoer (i.e., the police department) if the recording fails.68
Thus, police departments are best suited to ensure officers do not intentionally turn off their BWCs whenever they feel like engaging in misconduct.69
62. See, e.g., RIALTO POLICY, supra note 46 § 451.2.G.2.b (“An officer shall have the
latitude to terminate the recording when there is no likelihood of force being used or anything else
of evidentiary value occurring.”).
63. Id. § 451.2.G.2.c (“Officers shall not use the BW[C] recording functions to record any
personal conversations of or between another department member or employee without . . . [her]
knowledge or permission.”).
64. In a New Orleans case, a police officer turned off her camera just before shooting a motorist
in the head. See Radley Balko, Police Cameras Are Important, But They’re Useless Without
Policies to Ensure They’re Used Properly, WASH. POST (Aug. 19, 2014), http://www.
washingtonpost.com/news/the-watch/wp/2014/08/19/police-cameras-are-important-but-theyreuseless-without-proper-policies-to-ensure-theyre-used-properly/. Some manufacturers have provided for a method of tracking manual camera deactivations, which would help determine whether
a deactivation was intentional, accidental, or due to technical malfunction. See Jay Cassano, How
Do Those Police Body Cameras Work Anyway?, FAST COMPANY (Aug. 28, 2014, 10:30 AM),
http://www.fastcolabs.com/3034984/how-do-those-police-body-cameras-work-anyway.
65. Id. (“There have been too many examples in which an officer has ‘forgotten’ to turn on a
camera. . . .”).
66. See, e.g., FED. R. EVID. 1004(a) (“An original is not required and other evidence of the
content of a writing, recording, or photograph is admissible if . . . all the originals are lost or
destroyed, and not by the proponent acting in bad faith.”).
67. See Martina Kitzmueller, Are You Recording This?: Enforcement of Police Videotaping,
47 CONN. L. REV. 167, 180–92 (2014).
68. PAUL C. GIANNELLI, UNDERSTANDING EVIDENCE 131 (2d ed. 2006).
69. Sometimes police departments give officers free reign to stop recording so long as they
have a good enough excuse. See PHX. POLICE DEP’T, BODY WORN VIDEO TECHNOLOGY—PILOT,
OPERATIONS ORDER 4.49, § 5.B.5 (Apr. 2013) [hereinafter PHX. POLICY], http://rcfp.org/bodycam
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Beyond evidentiary reasons, allowing otherwise may negatively affect their
relationship with the community they police.
From an evidentiary standpoint, it may be clear from the recording that an
officer deliberately turned off the camera to hide misconduct. For instance, in
Daytona, Florida, officers took down and knocked out the teeth of a woman
resisting arrest just after the officer turned off his BWC.70 The woman filed a
complaint and the department quickly settled for $20,000, dropped all charges
against her, and fired the officers involved.71
Similarly, over time officers could start performing what I have coined
“intentional focus redirection” by becoming an expert of innocuously positioning a BWC’s view in such a way to avoid capturing deliberate misconduct.
For example if an officer wearing a head-mounted camera wanted to inflict
additional harm to a resisting suspect, he may turn his head but keep his eyes
elsewhere to avoid recording himself harming the suspect and say the resulting
injuries were accidents in attempts to restrain the suspect.
Such techniques might be difficult to prove because during certain violent
and physical encounters the struggle that ensues might cause the camera’s
positioning to shift unintentionally. In more blatant misconduct situations,
opposing counsel could ask for an adverse inference to allow the jury to infer
that, had the BWC been turned on or properly focused the entire time, the
video evidence would be unfavorable to the officer.72
Officers are commonly prohibited from activating their BWCs due to
requests to turn off their cameras by confidential informants, witnesses, and
crime victims who may be afraid of potential retaliation or revictimization.73
This policy can be legitimized to protect personal information from later being
disclosed if the video is shared publicly and to facilitate greater flow of communication and trust.
Theoretically, having direct video evidence of these individuals’ discussions can be helpful in court. However, if officers were required to film the
discussion, and the interviewee did not feel comfortable with the recording,
little information may be gathered. As a policy, it may be best to use other
_policies/AZ/Phoenix_BWC_Policy.pdf (“Employees may [turn off their device] if it is in the
obvious best interests of the department to do so and they are able to justify such a deviation.”);
see also RIALTO POLICY, supra note 46, at § 451.2.G.2.b (“It shall be deemed a violation of this
policy for an officer to fail to activate the device . . . in order to commit a violation of law or
department policy.”).
70. Justin Warmoth, Daytona Beach Police Officer Resigns After Body Camera Turned Off
during Arrest, CLICKORLANDO.COM, http://www.clickorlando.com/news/daytona-beach-policeofficer-fired-after-body-camera-turned-off-during-arrest/25982532 (last updated May 15, 2014,
6:02 PM).
71. Id.
72. Roughly half of the federal circuit courts require a showing of bad faith before an adverse inference is allowed in a jury instruction. See Shira A. Scheindlin & Natalie M. Orr, The
Adverse Inference Instruction After Revised Rule 37(e): An Evidence-Based Proposal, 83
FORDHAM L. REV. 1299, 1300 (2014).
73. See CHICAGO POLICE DEP’T, DEPARTMENT NOTICE D15-01, BODY WORN CAMERA
PILOT PROGRAM-PHASE 1, § VI.E.8. (2015), https://rcfp.org/bodycam_policies/IL/Chicago_BWC_
Policy.pdf; see also PHX. POLICY, supra note 69, at § 5.C.1.d. (“User officers/supervisors will not
knowingly record undercover officers or confidential informants.”).
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methods of recording the discussion, such as making a police report, audio
recording (as most BWCs allow) or to turn the activated BWC away from the
interviewee to establish a higher confidence in speaking openly.
c. Prohibitory Activations
Some police department policies that prohibit officers from recording
certain events are put in place to protect individual privacy rights.74 For example, officers are normally prohibited from activating a body camera in
places where a reasonable expectation of privacy exists, such as a bathroom or
locker room.75 Other policies are incorporated to prevent officers from recording other officers’ conversations surreptitiously.76 These policies promote
trust among officers and lead to more productive work environments. Finally,
police departments generally establish policies that prohibit officers from
recording any off-duty, nonwork-related, personal activities.77 These policies
should be coupled with prohibitions on officers from taking BWC devices
home and requirements that they are returned at the end of each shift.
C. Managing Video Evidence
While the first two subsections regarding technology selection and collection of video evidence focused primarily on discussing how police departments can strategically use policies to create strong and objective evidence
(i.e., the purpose of implementing BWCs), this subsection focuses primarily
on chain of custody issues arising from problems such as unsecure video handling, potential editing problems, and unauthorized access to videos, and administrative mismanagement (i.e., issues that can place doubt on the credibility
of otherwise strong video evidence).
1. Secure Transfer of Raw Video Data
There are a number of techniques available for transferring BWC video
evidence from the internal storage of the BWC device to police department
storage systems, depending on manufacturer and model. Some popular options
in current manufacturer trends include (1) manual USB/MicroSD, (2) automatic loading dock, and (3) wireless Wi-Fi/mobile data upload.
BWCs with manual upload options are by far the most susceptible to
abuse. Police departments using these manual upload BWCs may run into
evidentiary problems down the road if proper policy safeguards are not in
place to prevent misconduct.78 Some manufacturers are recognizing the vul74. See RIALTO POLICY, supra note 46, at § 451.2.
75. Id.
76. See PHX. POLICY, supra note 69, at § 5.C.1.c. (“In keeping with the Department’s value
of respecting dignity of all human beings, . . . the [body-worn] camera will not be utilized to
surreptitiously record conversations of citizens and employees.”).
77. See id. at § 5.C.1.e. (“The [body-worn] camera will not be utilized to record any off duty
or personal activity and will not be worn while working in an off-duty capacity.”).
78. In 2010, it was estimated that police departments nationally spent a total of $346,512,800
on officer misconduct-related civil judgments and settlements, not including sealed settlements,
attorney’s fees and court costs. David Packman, 2010 Police Misconduct Statistical Report—Draft,
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nerability of manual uploads and are creating new ways to automate the transfer from BWC device to police department storage system with tamper-proof
security features. For example, the use of loading docks allows an officer that
recently finished his shift to simply stick the BWC device into the dock and
upload all the files automatically into the police department’s storage system.
The final method of Wi-Fi/mobile data upload is the most recent method
that has become available. As soon as the video has been recorded, it may be
automatically uploaded to the cloud. However, it is unclear how effective or
feasible this option is as uploading large video files takes a lot of Wi-Fi and
mobile data. Moreover, the potential for network errors and hacking is similarly unclear.
With all methods of upload, however, there still remains the possibility
that an officer might attempt to intentionally destroy the BWC that stores the
video data before it is transferred, and pass the damage off as the result of a
physical brawl or technical malfunction. Often, an officer’s temptation to
engage in evidence concealment tactics stems from fear of imminent career
loss, criminal charges, or other punishment due to misconduct that was recorded.79
While concealment attempts are infrequent,80 the strongest prevention
policies come in the forms of minimizing opportunities, imposing strict consequences for violations, and performing audits. Even given the rarity of concealment attempts, it just takes one incident for the community to lose trust in
the police department, and for the federal government to open an investigation.81 Moreover, data recovery techniques are not guaranteed to work and the
costs associated with performing recovery may be expensive.
2. Processing & Editing
After an officer’s shift has ended, and all BWC video data collected from
the shift has been securely transferred, the officer is generally required to cre-
CATO INSTITUTE (Apr. 5, 2011, 12:55 AM), http://www.policemisconduct.net/2010-npmsrp-policemisconduct-statistical-report/.
79. See STANLEY, supra note 8, at 8 (“An officer or department that has engaged in abuse or
other wrongdoing will have a strong incentive to destroy evidence of that wrongdoing, so technology systems should be designed to prevent any tampering with such video.”).
80. Most concealment cases would arise during a high use-of-force encounter, which generally correspond with a higher chance of it being reported. It is not likely an officer would try to
hide a video if it does not show misconduct. See Justin T. Ready & Jacob T.N. Young, Three
Myths About Police Body Cams, SLATE (Sept. 2, 2014, 12:54 PM), http://www.slate.com/articles/
technology/future_tense/2014/09/ferguson_body_cams_myths_about_police_body_worn_recorder
s.html (“Research consistently indicates that less than 20 percent of calls to the police are for
felony crimes, and police use of force occurs in only 1 percent of police-citizen contacts. The rest
involve mediating disputes; assisting people who are injured . . . and providing referrals to those
who need assistance.”) (emphasis omitted).
81. See Ruben Castaneda, U-Md. Officials Seek Inquiry of Campus Video in Beating Case,
WASH. POST (Apr. 21, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/04/20/
AR2010042005093.html (describing how part of a surveillance video of an incident where officers
were accused of beating a student disappeared).
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ate a log-file within the police department’s management software program.82
How soon an officer must upload and process the videos varies by police department. However, it is generally good practice to do it immediately at the
end of the shift when it is most fresh in the officer’s mind, especially if it involves a felony or misdemeanor.83 Cognitive studies have shown the human
brain can experience cognitive scoping and memory loss, even in a matter of
seconds.84
Video processing is an integral part of any police department BWC program. In the processing stages, officers tag videos by crime and include relevant information such as suspect names, date, time, location, description of the
event, justifications for use of force, and time points in video footage that
signal where the important segments start for future review. In addition, officers may be able to attach certain documents such as police reports and photographs. Some manufacturers offer a mobile application that allows officers
to stream, tag, and replay videos so that they can manage and process videos
“right from the field,” in their downtime.85
Oftentimes multiple officers may arrive on the scene equipped with
BWCs. In these cases, the opportunity for event coverage and evidence objectivity increases because the trier of fact has more video perspectives to expose
additional information that may not otherwise be apparent from viewing one
BWC recording alone.86 In addition, BWC recordings can corroborate police
reports and other relevant documents to promote the equitable adjudication of
citizen complaints.87 All videos that record the same event encounter should be
82. See PHX. POLICY, supra note 69, § 5.E.1 (“At the end of each shift, officers . . . must
connect their [body] camera to a precinct computer and download all recoded data utilizing the
provided . . . [s]oftware.”).
83. Id. at § 5.B.6 (“User officers/supervisors can view captured video utilizing provided
software once the data has been downloaded from the camera. This will allow for user officers and
supervisors to refresh their memories prior to the completion of departmental reports or while
preparing for court proceedings.”).
84. See e.g., Timothy J. Ricker & Nelson Cowan, Loss of Visual Working Memory Within
Seconds: The Combined Use of Refreshable and Non-Refreshable Features, 36 J. EXP. PSYCHOL.:
LEARNING, COGNITION & MEMORY 1355, 1365 (2010) (finding that visual working memory loss
can occur faster than ten seconds after seeing visual stimuli).
85. See On Officer Video, supra note 32.
86. The risk of such evidence being excluded as cumulative should not deter the recording of
an event by multiple officers. Multiple perspectives and vantage points together make the event
more objective. See Sharon Coolidge & Dan Horn, No Charges Against Other Officers in
Cincinnati Shooting, USA TODAY (July 31, 2015, 10:27 PM), http://www.usatoday.com/story/
news/nation/2015/07/31/charges-officers-cincinnati-shooting/30974425/ (depicting a video that
synchronizes all three of the police body camera videos that have been released to the public
during a traffic stop shooting of an unarmed black man, which gives more information than any of
the videos would have alone).
87. See Ariel Barak et al., The Effect of Police Body-Worn Cameras on Use of Force and
Citizens’ Complaints Against the Police: A Randomized Controlled Trial, J. QUANTITATIVE
CRIMINOLOGY 509, 523–24 (2014). Officers wearing BWCs had 87.5% fewer incidents of use of
force and 59% fewer complaints than officers not wearing cameras. Id. The decrease in incidents
and complaints resulted primarily because of an awareness that both police and citizens were
being recorded. Id.
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linked to each other and internally cross-referenced in the management system.
At times, police-citizen encounters may last hours or officers may accidentally leave their BWC activated long after it has ended. In these cases,
much of the footage may be irrelevant for evidentiary purposes. Thus, in certain cases, unnecessary information may be edited out for judicial efficiency.
Such editing of video evidence is not only “quite legitimate” but is also sometimes required under Rules 401 and 403.88 Videos or portions of video recordings are commonly inadmissible under FRE 401 if its contents are irrelevant89
or under FRE 403 if the probative value of its content is substantially outweighed by a danger of unfair prejudice,90 confusing the issues,91 misleading
the jury, undue delay, or needlessly presenting cumulative evidence.92
Editing should only be done to BWC videos if they will be offered as
evidence in litigation. Patrol officers should not edit BWC video evidence—
nor should they have access or the opportunity to modify the original raw data
files—other than to add metadata. When a video file is scheduled to be used as
evidence and requires editing, the process should be handled under the supervision of an attorney who is bound by the Rules of Professional Responsibility.93 The edits should be made during natural breaks at the beginning and
end of the encounter in question, and submitted to the court along with a copy
of the original full-length file for in-camera inspection to ensure the edited
version is fair to both parties.94
The types of edits that are made to BWC video evidence is important for a
court proceeding. The more common edits that are permissible from an evidentiary standpoint are removing prejudicial audio or irrelevant footage, provided the modifications will not make the relevant parts misleading or
construed.95 Allegations of evidence tampering may arise when the video is
enhanced by speeding up, slowing down, zooming, dimming, brightening, or
88. See IACP IN-CAR CAMERA REPORT, supra note 7, at v-11 (“For example, if the original
video tape records seven days of images and the robbery in question lasted three minutes, editing
out the balance of the images is appropriate because they are irrelevant.”).
89. FED. R. EVID. 401; United States v. Clarke, 390 F. Supp. 2d 131, 133 (D. Conn. 2005).
90. See United States v. Cejas, 761 F.3d 717, 725–26 (2014).
91. Id. at 726.
92. Clarke, 390 F. Supp. 2d at 134; see FED. R. EVID. 403. .
93. See MODEL RULES OF PROF’L CONDUCT r. 3.8(d) (AM. BAR ASS’N, DISCUSSION DRAFT
1983) (explaining that a prosecutor must disclose to the defense in a timely manner all evidence
and information known to the prosecutor that tends to negate the guilt of the accused or mitigate
the degree of the offense); see also id. at r. 3.8(g) (explaining that the prosecutor remedy the
conviction of a defendant if he knows of evidence that the defendant was innocent).
94. See Castaneda, supra note 81 (explaining a case where, of the 60 hours of video footage
subpoenaed, a 90-minute segment that covered the time frame of a student’s beating by the police
went missing and the original video was no longer available because it had been recorded over).
95. The FRE provide requirements to ensure the authenticity of the content in the offered
video recordings. See Jim Dwyer, Video Challenge Accounts of Convention Unrest, N.Y. TIMES
(Apr. 12, 2005), http://www.nytimes.com/2005/04/12/nyregion/12video.html?_r=0 (uncovering
the full video of the one that was presented to the court showed additional footage that negated the
prosecutor’s position that protestor was not being peaceful).
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splicing together multiple recordings.96 However, some of these enhancements
may be made in front of the jury to clarify or provide an analysis of what happened. Overall, police departments must provide guidelines in their BWC
policies that limit the types of modifications and edits officers may make when
processing video evidence.
3. Administrative Oversight
Society’s transition into the modern digital age has made it increasingly
easy to access and edit video data.97 The party offering the evidence must
establish a prima facie chain of custody to show the reliability and integrity of
the process that produced the video.98 The custodian of the video evidence
must show that from the time the video file was recorded and saved to the
internal storage of BWC, to the time it was offered to the court as evidence,
the video data was not subject to unauthorized access or fraudulent tampering.
A good way for a police department to create a strong chain of custody is
to show there were tamper-resistant security and control measures in place
throughout each step. Oftentimes, this can only be implemented effectively
with appropriate administrative oversight to validate these measures. While a
perfect chain is not generally required,99 failure to account for all persons who
had possession or access to the original video data “may constitute a critical
break in the chain of custody.”100 While this task can be arduous, some BWC
manufactures provide management software capable of performing audit trails
which allow police departments to receive a complete and tamper-proof log of
each video file’s transaction history.101
As a policy measure, it is prudent to secure audit trail capabilities for
BWC videos that are comprehensive and secure. In addition, police depart96. See Erik Berg, The Legal Edge: Digital Imaging, A Legal Primer, 3 FBI ASSOCIATE, 22–
23 (2001) (“Any ‘enhancement’ applied to an image must take place on a copy of the original. . . .
The original image serves the function of control, much the same as any control used in scientific
analysis. Without effective controls, any conclusions drawn from the evidence will be suspect.”).
97. Id. (“The potential for alteration or corruption of a digital image is much greater than one
might think.”); see Beser et al., supra note 23, at 408 (Digital video evidence “is inherently susceptible to accidental or malicious tampering. . . . [making it] vulnerable to suppression on the
grounds that it could have been modified.”).
98. See Wagner v. State, 707 So. 2d 827, 831 (Dist. Ct. App. Fla. 1998) (explaining the
“silent witness” theory of when photographic evidence is determined to be reliable).
99. A few courts require all the links in the chain of custody to testify at trial, while most do
not require a perfect chain so long as there is sufficient proof that the evidence is what it purports
to be. Compare People v. Connelly, 316 N.E.2d 706, 708 (N.Y. 1974) (“Admissibility generally
requires that all those who have handled the item identify it and testify to its custody and unchanged condition.”) with Cooper v. Eagle River Mem. Hosp., Inc., 270 F.3d 456, 463 (7th Cir.
2001) (“[A]n uninterrupted chain of custody is not a prerequisite to admissibility. Instead, gaps in
the chain go to the weight of the evidence, not its admissibility.”).
100. GIANNELLI, supra note 68, at 364.
101. See DOHS REPORT, supra note 28, at 14 (explaining that audit trails can produce
automatic chain of custody reports by recording digital signatures, the IP addresses of those
accessing the videos, and all changes made to video file properties). New auditing processes must
be verified of their security and reliability under the two-part Daubert test if a video’s authenticity
is challenged. See Daubert et al. v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592–93 (1993)
(holding that new scientific methods must pass the two-part analysis).
100
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ment supervisors should closely control and monitor access to view and edit
video entries. It is good practice to perform random audits of high-profile
video files on a monthly basis to ensure compliance. Such administrative oversight requires implementing clear and effective policies that outline the consequences of officer violations.102 These types of policies not only set the
expectations of officers handing BWCs and video data, but also act as a deterrent to violations.
III. AN EVIDENCE-CENTERED BWC POLICY MODEL
This model is a mixture of the recommendations provided in the preceding sections of this comment and ideas gathered from several police agencies and criminal justice institutions. Because varying statutory and decisional
laws can have an impact on which BWC policies are implemented from one
jurisdiction to another, making a “one-size-fits-all” BWC policy template is
likely impractical. This model was created to provide police departments with
a starting point in their endeavor to implement powerful BWC policies focused on collecting objective footage and avoiding evidentiary challenges in
court. In all cases, police departments should consider the concerns of the
stakeholders in their community and consistently update their BWC policies
when better ones are discovered.103
A. BWC Policy Model
1. Purpose
To provide rules, policies, and procedures for officers and fiduciaries of
the [NAME] Police Department (“Department”) that promotes evidentiary
integrity, admissibility, and objectivity of its Body-Worn Camera (“BWC”)
audio-video files in judicial proceedings.104
2. Scope
This policy governs all use, operation, and distribution of the Department’s BWC systems, including all audio-video files created from the BWC
systems, accessories, software programs, and storage databases.105
102. See STANLEY, supra note 8, at 4 (“[O]fficer compliance with . . . video-handling rules
has been terrible. . . . [R]esearchers report compliance rates with body camera policies are as low
as 30%.”).
103. The Labor Relations Information Systems’ website hosts several police department
body-camera policies, many of which are difficult to find elsewhere. See Will Aitchison, “Model”
Body-Camera Policy, LAB. REL. INFO. SYS. (Sept. 12, 2014), https://www.lris.com/2014/09/12/
model-body-camera-policy/. The LRIS has also created their own body camera policy for agencies
to use when drafting their own policies. See WILL AITCHISON, LABOR RELATIONS INFO. SYS.,
BODY-WORN CAMERAS POLICY (Sept. 12, 2014), http://www.lris.com/wp-content/uploads/2014/
09/Model-Body-Camera-Policy.pdf.
104. See RIALTO POLICY, supra note 46, § 451.1(b).
105. See id.
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3. Compliance
a.
Investigation – To maintain an image of integrity, trust, and legitimacy in the community, the Department shall conduct a thorough internal investigation of any violations brought to the attention of the
Chief of Police.
b.
Violations – Officer failure to comply with the provisions of this document may result in civil or criminal penalties pursuant to applicable
federal, state, and local laws, and disciplinary measures undertaken
by the Department pursuant to the directives established in [the departmental disciplinary policies].
4. General Provisions
a.
Ownership – All original photographs, videos, and audio files (“Recordings”) from BWC and officer-created metadata are property of
the Department and shall not be copied, disseminated, altered, or destroyed in any form or manner outside the parameters of this document without the express written consent of the Chief of Police or its
designee.106 All BWC devices are property of the department.107
b.
Property Damage – Officers shall not intentionally remove, dismantle, modify, or destroy any hardware, software, or other component of the Department’s BWC technology.108 Intention is objectively
determined based on the reasonableness of the circumstances.
c.
Work Effects – BWC videos are a supplemental medium for collecting accurate information or evidence, and shall not replace traditional officer paperwork and administrative responsibilities.109
5. Mandatory Training Certification
All officers must have certification before being assigned a BWC system.
Certification is only granted to officers that demonstrate adequate understanding by passing an examination for each required training.110 Training may
comprise of either in-class lectures or eLearning tutorials, but it must include
106. See id. § 451.2B.
107. Note that some police departments allow their officers to purchase their own BWCs,
even though with such options officers are expected to follow policy procedures if it is used in the
course of work. See AUSTIN POLICE DEP’T, DIGITAL MOBILE AUDIO VIDEO RECORDING, POLICY
313.4 (May. 13, 2013) [hereinafter AUSTIN POLICY], http://austintexas.gov/sites/default/files/files/
Police/APD_Policy_32013.2(a)-2_Effective_6-1-2013.pdf.
108. See RIALTO POLICY, supra note 46, § 451.2F.
109. See id. 451.3C.3.a.3 (“Officers should continue to prepare reports in the same manner
as prior to the implementation of this camera system. Officers should not substitute ‘refer to
video’ for a detailed and through report. Officers should avoid using exact quotes, but should
represent statements in their reports as a summary of what is contained in the statement/video
. . . .”).
110. See SEATTLE POLICY, supra note 54, § POL-1.1.
102
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some hands-on drills. At minimum, certification requires training in the following areas:
a.
BWC Software and Equipment – Including how to categorize, group,
label, flag, attach documents to, insert metadata in, and build case
files from recordings.
b.
Hands-On Practice – Including physical activities that promote steady
recording and maintaining camera focus in the direction of the officer’s field of view when activated.
c.
Hearsay and Bias Recognition – Including learning how to quickly
recognize hearsay and control the flow of dialog between citizens to
elicit responses that require personal knowledge. In addition, teaching
officers how to avoid potential cues that might cause juror bias.
d.
Media & Legal Considerations – Including lessons from other Police
Departments and case studies focusing on practice to prevent negative
media and legal exposure.
6. BWC Program Technology Features
To maintain a strong commitment to collecting, storing, securing, and
managing high quality evidence, the Department shall acquire, through proper
procurement and cost-conscious methods where available:
a.
Tamper-Resistant Body-Worn Camera Devices – the quality of which
is above average compared to other brands/models on the market in
terms of video/audio resolution, durability, comfortability, and battery/recording storage capacity. Such BWCs should possess features
which allow for greater event coverage and quality, such as 30second recall, low-light night vision, wide-angled lenses, automatic
secure upload, date/time/watermark stamp, and head mounting capabilities.
b.
Secure Storage Database Systems – with a large enough data capacity
to store more than double the predicted amount needed each year,
whether internally maintained and operated or externally operated
and leased from a third party. Remaining storage limits should be frequently monitored and additional space should be acquired in advance of future storage need. All data should be backed up and
encrypted.
c.
Comprehensive Management Software – that is password protected
with multilayered encryption to allow only authorized access to the
Department’s BWC recordings. At minimum, the BWC software
must have a comprehensive search logic and auditing system that begins a permanent individual audit of each recording the moment it is
uploaded into the storage database system. The auditing system must
be capable of tracking, and it must identify and record instances when
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a user views, enters metadata into, or deletes a recording. The software shall be configured to only allow the Chief of Police or his designee to share, edit, or delete a recording.
7. Pre-Shift Procedures
Officers shall only use the BWC system approved, issued, and assigned
by the Department in accordance with this document, and shall report any
violations to the Chief of Police or its designee.111 Any officer that cannot
satisfy this section before the beginning of each shift shall immediately communicate to the Chief of Police or his designee. Before each shift, an officer
must perform an inspection of their BWC device and ensure with reasonable
certainty:
a.
There are no visible damages or concerns regarding the functionality
of the equipment.112
b.
The battery is adequately charged and may hold a charge as it is designed after it is undocked from a charging station or power cable.113
c.
The internal storage contains no recordings from a previous shift.
d.
The correct date and time is indicated on the device or in any manner
sufficient to determine the device will correctly stamp the correct date
and time to all recordings made during the officer’s shift.
e.
All parts, accessories, and cables are accounted for, in working order,
and securely and properly fastened on the officer’s body as it was designed and intended.
f.
The center of the camera lens is front facing and right-side up,
mounted in a position that best captures the officer’s point of view
and is unblocked by any part of the officer’s uniform, body, or other
object that may obstruct the BWC’s recording functionality.
8. On-Shift Procedures
Officers must wear their assigned BWC before engaging with a civilian.
Throughout the duration of a shift, officers should perform intermediate inspections and maintenance procedures to their BWC immediately after a call
for service has concluded, between calls for service, and other times when it is
safe and practical to do so.114 Intermediate inspections and maintenance procedures include:
111. See id. § POL-1.10.
112. See PHX. POLICY, supra note 69, § 5.A.
113. See id.
114. See LAS VEGAS METRO. POLICE DEP’T, GENERAL ORDER: BODY WORN CAMERAS,
DIRECTIVE NO. GO-009-14, at 2 (Aug. 28, 2014) [hereinafter LAS VEGAS POLICY], http://www.
lris.com/wp-content/uploads/2014/09/Las-Vegas.pdf.
104
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a.
Ensuring all parts, accessories, and cables are accounted for, in working order, and securely and properly fastened on the officer’s body as
it was designed and intended.
b.
Confirming the center of the camera lens is front facing and right-side
up, mounted in a position that best captures the officer’s point of view
and is unblocked by any part of the officer’s uniform, body, or other
object that may obstruct the BWC’s recording functionality.
c.
Charging the BWC battery when it reaches below 50% or indicates
less than three (3) hours of estimated recording time remaining.
d.
Uploading BWC recordings to the Department storage database via
any approved safe and secure medium allowed by this document to
conserve internal device storage.
9. End-Shift Procedures
a.
Officers may return to the Department 20 minutes before the conclusion of their shift. Upon returning, officers must safely and securely
upload all remaining collected data from the BWCs to the Department’s storage database before leaving the Department facility.
b.
Attempts to conceal, destroy, or failure to upload all video evidence
during the transfer of video data is grounds for suspension or termination.
c.
Once all the video data has been securely uploaded and new file entries in the Department’s management system has been created, officers should ensure the BWC’s internal storage is empty, all
accessories and cables are accounted for and put away, and that the
BWC is being charged for use in the next shift.
d.
Before leaving the Department facility, officers must safely stow their
assigned BWC under lock and process the video files as outlined in
section 13.
10. Mandatory Activation
Except as provided in sections 11 and 12, officers equipped with body
cameras must record all on-duty police-citizen encounters before they are
initiated and when it is safe and practical to do so. Recording the moments
leading up to the encounter increases event coverage and evidence objectivity.
In addition, early activation will help ensure evidence is captured during episodes of unexpected violence and protect officers from accusations of misconduct. All officers must turn on their BWC immediately before exiting their
patrol vehicle during calls for service. Officers must keep their BWCs activated until the encounter with the citizen has ended and the officer has returned to the patrol vehicle. Officers that intentionally deactivate a BWC
during an encounter may be subject to suspension or termination. Whether an
act is done intentionally will be inferred from the circumstances. Activation
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and recording policies are subject to [Insert Department’s State] consent to
record laws.
11. Discretionary Activation
There are many situations where activation of the BWC is inappropriate
and this policy is not intended to describe every possible circumstance. To
protect officer information from exposure and facilitate greater flow of communication, officers have the discretion to turn off their BWC upon request by
informants, witnesses, or crime victims if doing so would facilitate greater
flow of communication and trust. However, it is preferable that all officers
attempt to maintain an audio recording or turn the activated BWC camera lens
away from the subject during the interview as an alternative. To mitigate high
costs of video storage, unnecessary recorded footage, and needless video processing time, officers have discretion to deactivate their BWC during shift
breaks, administrative tasks, or other situations where no evidentiary benefit is
likely, as long as it does not violate a provision in this policy.
12. Prohibitory Activations
A BWC shall not be used to record off-duty or nonwork-related activities,
conversations of officers surreptitiously, and locker rooms or restrooms. In
recording within a private home, officers may continue to record unless the
owner of the home requests deactivation. If such a request were to occur, officers should first attempt to take the matter to a public location outside the
home where feasible or only use audio recording for the duration of the encounter that takes place in the home. In recording crime victims, minors, or
other vulnerable individuals, officers may continue to record unless deactivation is requested. Similar alternatives should be considered to collect audio
recordings.
13. Processing and Editing BWC Videos
106
a.
Once an officer's shift has ended, and all BWC video data has been
completely and securely transferred into the Department’s storage
and management systems, officers must process the videos by
providing each video with an identifiable search title, comments to
describe important details that may not be apparent from the video,
and any relevant documents such as photographs or police reports.
b.
In the processing stages, officers must identify persons recorded in
the video and ensure the date, time and location are correct. In addition, officers must provide any justifications for the need to use force.
As a general rule, the more serious the event or crime, the more information officers will be expected to provide.
c.
Officers must note, link, and internally cross-reference BWC videos
that are of the same events.
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d.
All officers must only process their recorded BWC videos. Failure to
comply warrants suspension or termination.
e.
Officers may not edit any BWC videos for any reason. All videos
must remain in their raw and unmodified form until they are safely
transferred into the Department’s BWC database system. Edits may
only be performed by the Chief of Police or its designee under the
guidance of general legal counsel, and only to make redactions for
public records requests and preparation for litigation.
f.
Any edits made pursuant to subsection (e) must be on a copy of the
original raw video data, made at natural breaks or at the beginning or
end of the relevant parts, and made only to remove sensitive personal
information and if doing so would not make the resulting video misleading.
g.
Editing to speed up, slow down, zoom, dim, brighten, or stitch together multiple videos is strictly prohibited.
14. Oversight and Auditing Measures
a.
The Chief of Police or his designee shall limit access to video files on
a right to know, need to know basis.115
b.
Although access to view video files may be permitted under (a), the
Chief of Police or his designee shall not allow anyone to access original raw video data.
c.
The Chief of Police or his designee shall perform random comprehensive audits each month to deter misconduct and increase compliance
with this policy.
15. Maintenance and Upgrades
a.
All Department BWC software and firmware shall be updated as soon
as possible when new updates are available to ensure the technology
is performing at maximum efficiency.
b.
All damages that impair the functionality of a BWC shall be reported
to the Chief of Police or his designee immediately upon learning of
such damage. If damaged, that BWC shall not be used until it is serviced and functioning normally. Officers with damaged BWCs must
be assigned a new BWC.
c.
The Department shall consider advancements in BWC technology
every two years and apply for and use federal grant money to acquire
new BWC technology that is reflective of an above average standard
of quality on the market.
115. See RIALTO POLICY, supra note 46, § 451.5.A.
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B. Additional Considerations
There are a number of policy provisions that were only partially addressed
or not included in the policy model because they are jurisdictionally sensitive
or indirectly related to the evidentiary focus of this comment. In addition,
policies based narrowly on search and seizures116 or other legal concepts117
were outside the scope of this article. In this section, I briefly touch on a few
of these important BWC topics, such as privacy, consent to record laws, public
records requests, and video retention periods. Police departments should consider the issues surrounding these topics and adopt additional BWC polices
where appropriate and consistent with the goal of producing objective evidence.
1. Privacy
Privacy concerns with use of BWC devices have been a focal point of
discussion in the media. This is understandable, of course, because officers
generally spend lots of time gathering sensitive information such as social
security numbers, dates of birth, addresses, and other personally identifying
information. Addressing privacy risks typically requires balancing the potential consequences of such risks with the need to monitor government operations and promote police accountability.
The most obvious privacy concern is not the fact that officers can now
record private information. Officers traditionally collect a great deal of private
information through writing and photographs when it is helpful to an investigation. Rather, privacy concerns center on whether the information collected
will be protected and not misused. A fear that videos could be publicly released or used for personal gain is not unreasonable.118 Misuse of video could
cause embarrassment, harassment, and emotional distress.119
In the policy model above, sections such as activation prohibitions and the
general provisions were partially drafted to address potential privacy concerns
that implicate evidentiary considerations.120 Police departments may consider
expanding these sections or adding a separate section to address appropriate
methods of handling situations that are cause for privacy concerns.
116. For more information see David A. Harris, Picture This: Body-Worn Video Devices
(Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police, 43 TEX. TECH L.
REV. 357 (2010).
117. For more information see Christopher Slobogin, Public Privacy: Camera Surveillance
of Public Places and the Right to Anonymity, 72 MISS. L.J. 213 (2002).
118. See STANLEY, supra note 8, at 3 (“[V]ictims of rape, abuse, and other sensitive crimes
. . . as well as witnesses who are concerned about retaliation if seen cooperating with police, may
have very good reason for not wanting police to record their interactions.”).
119. For a model policy developed by the ACLU, see Am. Civil Liberties Union, A Model
Act For Regulating The Use of Wearable Body Cameras By Law Enforcement, http://www.aele.
org./ACLUBWCAct.pdf (last visited Oct. 20, 2015).
120. See supra note 8 and accompanying text.
108
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2. Consent to Record Laws
Related to the issue of privacy is the need for police departments to configure their BWC policies to comply with state and local consent to record
laws. Each state has “either a one- or two-party consent law, meaning officers
don’t need to inform subjects of their body camera, or the officer is required
by law to inform subjects that they are recording and obtain the person’s consent to record.”121 The Police Executive Research Forum (PERF) believes
recording all encounters “would sometimes undermine community members’
privacy rights and damage important police-community relationships.”122
However, a more popular policy is for officers to follow a mixed approach that
requires mandatory recording of all encounters except in cases of recording
interviews with crime victims or other vulnerable individuals.
Advocates for increased privacy policies suggest that officers should limit
recording when requested and provide notice to all citizens that they are being
recorded, except in extreme situations.123 However, such policies may conflict
with others that attempt to collect objective evidence.124 What citizens say or
do is unpredictable. From an evidentiary standpoint, it may be best to record
the entire event encounter and redact the personally identifying information if
the encounter will be released to the public. In dealing with crime victims,
minors, and other vulnerable individuals, a good policy may be to consider the
victim’s request to turn off the camera and use alternative methods of collecting evidence such as only collecting audio and photographs if it is likely
the victims will cooperate more effectively.125
3. Public Records Requests and Disclosure Laws
Generally, officer BWC recordings are only accessible to authorized personnel and subjects in the video recording. To retain community trust and
transparency, police departments may sometimes voluntarily release controversial videos to the public after a recorded event comes under media scrutiny.
However, releasing a BWC video to the public early can prejudicially impact
the jury in a permanent way. Once the video is released, there is little chance
to undo the effect and remove it from the Internet.
121. PoliceOne Staff, 3 Steps for Writing Body Camera “Consent to Record” Policies,
POLICEONE.COM (Mar. 4, 2015), http://www.policeone.com/police-products/body-cameras/
articles/8388080-3-steps-for-writing-body-camera-consent-to-record-policies/.
122. See PERF REPORT, supra note 14, at 12.
123. Alternatively, police “departments might consider [having] officers . . . wear an easily
visible pin or sticker saying ‘lapel camera in operation’ or words to that effect. Cameras might
also have blinking red lights when they record, as is standard on most other cameras.” STANLEY,
supra note 8, at 5.
124. In addition, as more police departments adopt cameras and BWCs become ubiquitous
in society, it is likely providing notice that officers are recording will be as necessary as the need
to provide notice that an officer is carrying a firearm—such assumptions may be presumed by the
general public.
125. PoliceOne Staff, supra note 58 (“Many law enforcement officials . . . [believe] body
cameras [have] a negative impact on their intelligence-gathering activities, particularly when
officers aren’t allowed the discretion to turn off the camera.”).
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In addition, police departments have allowed citizens to review recordings
before deciding to file a complaint against an officer.126 However, “due to
privacy concerns, [most] departments can’t simply turn over video, which may
show crime victims, abused children and bloody crime scenes, but must scrub
it of certain information.”127 The ACLU has offered a number of policy considerations when releasing a BWC video, such as redacting portions where
sensitive information is present and obtaining the consent of subjects in the
video before it is released.128
While not identical, all 50 states have adopted similar provisions of the
Freedom of Information Act (FOIA) of 1966,129 which allows disclosure of
almost every agency record to the public unless exempted or excluded. Records created for law enforcement purposes may be exempted from request if
one of six types of harm would result,130 including disclosure that may reasonably interfere with enforcement proceedings,131 deprive a person a right to
fair trial or impartial adjudication,132 or endanger the life or physical safety of
confidential sources.133 The Privacy Act of 1974 has similar exemption provisions to the FOIA but focuses more heavily on the regulation and disclosure of
personal information of an individual.134 Overall, a BWC policy related to
public records requests should be implemented in compliance with the state
FOIA provisions.
4. Video Retention Periods
Similar to retention periods of physical evidence, BWC recordings are
typically retained based on the likelihood they will be used later in court, such
as videos of DUIs, arrests, and use-of-force incidents. More than half of the
states have enacted their own evidence retention and preservation laws.135
When videos are recorded and uploaded into a police department storage sys126. Justin T. Ready & Jacob Young, The Impact of On-Officer Video Cameras on PoliceCitizen Contacts: Findings from the Mesa Field Experiment, J. EXP. CRIM. 12 (2015) (finding a
40% reduction in citizen complaints against officer equipped with cameras).
127. Martha Neil, Police Put Brakes on Body-Camera Plan, Citing Records Request; Earlier
Dashcam Suits Were Costly, ABA J. (Nov. 20, 2014, 1:05 PM), http://www.abajournal.com/news/
article/police_put_brakes_on_body-camera_plan_cite_records_request.
128. See STANLEY, supra note 8, at 7.
129. 5 U.S.C. § 552 (2012).
130. Id. at § 552 (b).
131. Id. at § 552 (b)(7)(A); see Nat’l Labor Relations Bd. v. Robbins Tire & Rubber Co.,
437 U.S. 214, 224 (1978).
132. Id. at § 552 (b)(7)(B); see Wash. Post Co. v. United States Dep’t. of Justice. 863 F.2d
96, 101–02 (D.C. Cir. 1988) (establishing a two-prong test to determine whether pretrial publicity
could prejudicially impair a court proceeding).
133. Id. at § 552 (b)(7)(F); see also Ortiz v. U.S. Dep’t of Health and Human Serv., 70 F.3d
729, 732 (2d Cir. 1995) (stating that “[e]xemption 7(D) is meant to . . . protect confidential
sources from retaliation that may result from the disclosure of their participation in law
enforcement activities.”).
134. See 5 U.S.C. § 552b(c).
135. Congress passed the Justice for All Act, H.R. 5107, to provide financial incentives to
states for evidence preservation. See Preservation of Evidence, INNOCENCE PROJECT (June 4,
2015), http://www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/preservationof-evidence.
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tem, management software allows officers to assign retention and destruction
periods to each video. To maintain transparency, police departments should
make retention schedules public by posting them on their websites or including them in their BWC policies.
Most BWC video recordings will not need to be assigned very long retention periods because they have little evidentiary value.136 Generally, only videos that involve a misdemeanor or felony arrest or help an ongoing
investigation will need to be preserved longer than one month. These videos
should be retained for years because criminal appeals may take a long time
before all right of appeals have been exhausted. Without adequate policy safeguards, it is possible to imagine a scenario where an officer accidentally or
intentionally assigns a low retention period to a high-profile recording.137
Management systems may be configured to retain data and require administrative approval to permanently delete videos.138
The consequences of deleting otherwise helpful videos prematurely are
similar to strict liability, because the department was in the best position to
prevent spoliation of the evidence. The former custodian may introduce testimony of a destroyed video’s content through a witness that previously
watched it if the judge finds it was destroyed in good faith and it passes the
balancing test in Rule 403.139 However, absent good faith, not only will the
witnesses be prevented from testifying about the video’s contents, but the
video could be strong circumstantial evidence unfavorable to the party that
destroyed it.140 The party that destroyed the video evidence in bad faith is also
likely to be subject to civil and criminal penalties.141 Overall, police departments should establish clear retention policies and provide additional trainings
on how to assign proper deletion periods to BWC video evidence.
C. Addressing Potential Objections and Criticisms
First, some may argue that the evidentiary focus of the policy model and
recommendations presented in this comment are too stringent in light of competing interests such as privacy concerns. While this may be valid to an extent,
136. See STANLEY, supra note 8, at 6 (“For the vast majority of police encounters with the
public, there is no reason to preserve video evidence, and those recordings therefore should be
deleted relatively quickly.”).
137. Retention rates should be stated in the BWC policies to make it clear to the public and
personnel how long videos are kept before being deleted.
138. See STANLEY, supra note 8, at 7.
139. See, e.g., United States v. Brown, No. 08-0098, 2009 WL 2338112, at *1, *2 (W.D. Pa.
July 29, 2009) (finding video evidence was destroyed in good faith, but testimony could not be
introduced because DEA agent witness last viewed the video three years earlier which would
make recollection of the video’s contents less reliable and substantially outweighed by the danger
of unfair prejudice).
140. See, e.g., State v. Hartsfield, 681 N.W.2d 626, 632–33 (Iowa 2014) (The “foregoing
testimony provides substantial evidence for a finding that the State intentionally withheld the tape
from the defendant and his counsel . . . and then knowingly allowed the recording to be destroyed.
Under these circumstances . . . the State’s actions were an admission . . . unfavorable to its case.”).
141. Some criminal penalties may include obstruction of justice, destruction of government
property, evidence tampering, and ethical violations.
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the focus selected for this article was to offer ideas for how to use policies that
are most in line with the purpose of BWCs—to secure objective evidence. To
be sure, this model does address privacy concerns in limited circumstances.
Because proper control measures that limit access to BWC videos can eliminate many privacy concerns, discussion on this topic was limited to key privacy provisions that increase evidentiary effectiveness as a primary reason
first, and operate as an added benefit to privacy protection second.
In addition, this model is not intended to cover all aspects or options
available to police departments in establishing BWC video policies. Instead,
the intention was centered on briefly covering some of the most important
aspects and popular options of what police departments may consider. Also it
is likely that many police departments already have policies and procedures in
place that govern all types of evidence that operate to govern BWC videos as
well. The result is that a police department’s policy may seem limited in scope
alone, and more comprehensive when read together with other policies, such
as evidence retention periods and disciplinary measures for intentional evidence destruction. In maintaining public transparency and officer understanding, police departments would benefit from adding all policies pertaining
to BWCs in the same section or at least cross-referencing the sections that
apply to the BWC program.142
To invest in the success of BWC programs, police departments should be
mindful of the evidentiary problems that can arise when formulating their
BWC policies. Although some of the recommendations in this comment may
not completely remove the problems they aim to address, it is important to
continually update policies to reflect best evidence-based practices. Proactivity
in policy drafting will not only increase legitimacy, transparency, and accountability of the department, but also save time and resources from having to
litigate BWC issues in court. Police departments do not have to undertake such
endeavors alone—actively consulting community members, policymakers,
courts, oversight boards, field officers, unions, and other stakeholders in the
oversight and formulation of BWC policies will help locate inadequate policies and replace them with ones that are more in line with the purpose of
BWCs and the needs of the community.
142. The Bureau of Justice Assistance has developed a BWC Toolkit to help police departments across the nation plan and implement a body-worn camera program. As part of the Toolkit,
it created an implementation checklist with supporting links to expedite the process. See BUREAU
OF JUSTICE ASSISTANCE, LAW ENFORCEMENT IMPLEMENTATION CHECKLIST 1, 1–3 (2015),
https://www.bja.gov/bwc/pdfs/BWCImplementationChecklist.pdf.
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