If you think criminal defense attorneys are going to go out of business in jurisdictions where law officers are wearing body-worn cameras, think again. In fact, quite the opposite will be true. Defense lawyers (and plaintiff’s attorneys in civil cases) will try to use body-worn video (video of all kinds, actually) against officers at every given opportunity.
If you think that the body camera is going to tell in totality your side of the story in a use-of-force event, think again. As Dr. Bill Lewinski pointed out more than four years ago, “There is no camera in existence that can record an event exactly as it was perceived by an officer who experienced it.” Your account of an event must be meticulously documented in your report — maybe more so now than ever before.
Here are ten thoughts about how body-worn cameras will change how you patrol — and change your report writing — to keep those lawyers off your back.
1. The video is not a supplement to your report. Your report is a supplement to your video. That means never write your narrative without viewing the video. Any contradictions will crush your case. Think like a defense attorney as you view it.
2. Document compliance as well as non-compliance. Make this a habit and lobby for the report narrative to suffice as your use of force report.
3. If you are assaulted or resisted, cite the statutory language to link the subject’s behavior to criminal resistance. Cite your law that requires compliance so that the prosecutor has it in mind as you describe offender behavior in detail.
4. Cite each cue of compliance or non-compliance (pre-attack indicators) as it appears on the video. If the indicators are not evident in the video, explain where they occurred to establish sequence. Include movements, facial expressions, verbalizations, and anything that you used to make your assessment of compliance. By citing both compliance and non-compliance, your prosecutor, police leaders, and critics can quantify how rare use of force is.
5. Cite each of your behaviors — or assisting officers’ behavior — that was designed to gain compliance. Include your visibility and identity as a police officer, your words and gestures, and your position and distance relative to your contact. Always talk about the suspect’s behavior prominently because that drives your response and decisions. Officers tend to be their own worst critique and narrate a non-compliance event as though the resistance was their own failure.
6. Give a clear description of significant activities that occurred off camera — additional persons at the scene, environmental artifacts that influenced your decision making, and any impediment to your ability to control the scene. This is a good time to practice not swearing, but if you do so on camera don’t censor yourself in the report and be ready to be questioned on the stand about it. Do not fail to get witness information regardless of how convincing you think the video will be. Video those contacts as well.
7. If you have a body camera that you have to actively turn on (rather than voice activated) turn it on when you get the call. Practice hitting it the moment you decide to make a contact, as early as possible into the event. Officers may be tempted to save battery and storage space by waiting to activate the camera. This can lead to missing something significant leading up to the event. Any case with an absence of video will become suspect. Affirmatively document any time video may be missing in a case.
8. Putting an elapsed time bar on one copy of the video for case presentation will counter the most frequent misunderstanding of non-compliance encounters — how fast they happen. This visual can answer the common questions of why you didn’t try this or that technique or why they failed when you did try.
9. Use patrol videos for training. Peer reviews of successful and less successful encounters can improve your agency’s performance in dealing with non-compliant subjects. Sharing will also serve to standardize and hopefully elevate the quality of reports. Your prosecutors will also be trained to recognize the details of non-compliance as they see consistency in your reports. They will be better equipped to prosecute resistive subjects, and less likely to charge officers with misconduct because they do not fully understand the dynamics of resistance.
10. Consistency in reporting is important. If you always report compliance or non-compliance, and use care with routine cases as well as the ones where your force will likely be questioned, your credibility will be well established. And you never know when minor incidents will generate major problems. In my experience I seem to get more complaints when I give somebody a break!
