This feature is part of our 2016 Guide to Body-Worn Cameras, a supplement that brings a sharpened focus to some of the most challenging issues related to the use of body-worn cameras and digital video evidence. To read all of the articles included in the guide, click here.
There are several areas of BWC operation where absolutes are difficult to determine and opinions vary, even among the experts. Some of these, such as discretionary recording, incident review, recording advisory, and citizens “opting out” have a degree of potential controversy and potential legislative requirement so you will need to do your due diligence before finalizing your policy.
You should seek input from your stakeholders and set clear expectation in your policy. Many agencies have found the need to modify their policy after real world experiences dictated a need for change. Following are brief discussions of different perspectives on four areas that have proved challenging.
1. DISCRETIONARY RECORDING
Should officers be required to record each and every contact or will they be permitted a degree of discretion?
Departments vary from policies that require the recording of virtually every contact made by an officer, regardless of whether it has evidentiary or enforcement relevance, to policies that clearly define when officers can decide to turn the camera off.
The former would require an officer to record someone asking for directions or a victim conveying extremely personal and sensitive information.
The latter allows officers to recognize when it is either unnecessary or counterproductive to record. The trend appears to favor some degree of discretion and few departments have an absolute requirement that all encounters be recorded. To the degree it is practical, policy should give clear direction as to the situations that require recording and under what circumstances officers have the ability to decide whether or not to record. Policy should also clearly delineate any situations where recording would be prohibited or require that a camera be turned off.
If a department’s policy has specific requirements as to when cameras should be recording, the policy should indicate what the ramifications will be if an officer does not follow policy. The intent should be to constructively motivate officers to properly document events that require recording and discourage officers from selectively turning cameras on and off to avoid accountability for their actions. Discretion, by definition, has a degree of subjectivity attached to it. This is an area where appropriate training and discussion of expectations with real-life examples can help avoid problems.
2. POST-INCIDENT REVIEW
Should officers be permitted to review the recording of an incident before writing a report or giving a statement?
An extensive report on BWC utilization from the Police Executive Research Forum (PERF) states, “The majority of law enforcement executives interviewed by PERF are in favor of allowing officers to review body-worn camera (BWC) footage prior to making a statement about an incident in which they were involved. They believe that this approach provides the best evidence of what actually took place.”
On the other side of the issue, some defense attorneys, civil rights advocates, and law enforcement leaders believe that this approach is inappropriate and contend officers may write their report or conform their statement to match the reviewed video rather than providing information based on their own recollection of the events as they unfolded.
There are essentially three general approaches to this issue:
• Officers are permitted to review video and write their report with that knowledge
• Officers are not permitted to review the video and must write reports without benefit of the recorded information
• A hybrid approach where officers are permitted to review video prior to documenting their actions except in critical incidents such as officer-involved shootings where the mindset of the officer may be paramount or where officer wrongdoing is suspected
This is an area where opinions are still being formed and lessons are being learned. There is strong evidence that the emerging trend is to allow review of video before a report is written. However, the ultimate decision should take place at the agency level after due consideration of input from stakeholders such as prosecutorial and risk management advisors as well as labor representatives.
3. RECORDING ADVISORY
Should officers be required to advise persons being contacted that they are being recorded?
When video is known to be in use, human behavior is altered, usually positively. This is why some advocate that officers always advise those being contacted that their actions are being recorded.
Conversely, many police officials feel that the documentation of a subject’s “raw” actions and statements are powerful evidence and, more often than not, ultimately prove that an officer’s actions were justified. Some departments partially address this issue by using equipment that displays a blinking light or distinctive color when a camera is on. Other departments don’t require that officers advise of active recording unless a subject specifically asks if they’re being recorded.
A key consideration in this issue is whether there are legislative requirements that require an advisory before recording (video and/or audio) may take place. This is often called two-party consent. Once again, this is an area where significant due diligence is required as well as considering the input of stakeholders. It is recommended that the first consideration be whether or not there is existing law that would dictate a specific action and then develop training and policy accordingly.
4. CITIZEN OPT-OUT
Should citizens have the right to prevent an officer’s recording?
This is another area where existing legislation may dictate a specific course of action. In some states, an officer may record during public police encounters but must discontinue in certain situations, such as in a private residence, unless permission is granted. Many departments have policy that requires an officer to discontinue recording at the request of a non-detained citizen but permit the continued recording of any subject who is lawfully detained or under arrest, even if they are requesting the recording be stopped.
Find out if there are legislative requirements. After that, it’s a matter of listening to input from stakeholders and considering how the direction given to officers will impact both their effectiveness and their relationship with the community. Allowing officer discretion may also be appropriate, such as an accident victim whose clothing is torn off. If a department does permit discontinuation of recording under specific circumstances, a good approach is to have the officer verbalize the reason for the discontinuation prior to turning off the camera.
