CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, May 11, 2016

Fan on Police Body Cameras

Fan maryMary D. Fan (University of Washington - School of Law) has posted two pieces on police body cameras. The first is Privacy, Public Disclosure, Police Body Cameras: Policy Splits (Alabama Law Review, Vol. 68, Forthcoming). Here is the abstract:

When you call the police for help — or someone calls the police on you — do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives — after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure. This article sheds light on the balances being struck in state laws and in the body camera policies of police departments serving the 100 largest cities in the nation. The evaluation illuminates two emerging areas of concern — the enactment of blanket or overbroad exemptions of body camera footage from public disclosure, and silence on victim and witness protection in many policies.

The article offers two proposals to address the challenges.

First, the article argues for legal safe harbors to foster the development of new redaction technologies to automate the removal of private details rather than exempting body camera video from disclosure. Blanket or broad exemptions from public disclosure destroys the incentive to use technological innovations to reconcile the important values of transparency and privacy and disables much of the promised benefits of the body camera revolution. Second, the article argues for giving victims and witnesses control over whether officers may record them, rather than putting the burden on victims and witnesses to request that recording cease. This approach better protects against the perverse unintended consequence of deterring victims from help-seeking and witnesses from coming forward, and reduces the risk of inflicting further privacy harms from justice-seeking.

The second is Justice Visualized: Courts and the Body Camera Revolution
UC Davis Law Review, Vol. 50, Forthcoming. Here is the abstract:

What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story – or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception. Now a revolution is coming. Across the nation, police departments are deploying body cameras. Much of the current focus is on how body cameras will impact policing and public opinion. Yet there is another important audience for body camera footage – the courts that forge constitutional criminal procedure, the primary conduct rules for police. This article explores what the coming power to replay a wider array of police enforcement actions than ever before means for judicial review and criminal procedure law. The body camera revolution means an evidentiary revolution for courts, transforming the traditional reliance on reports and testimony and filling in gaps in a domain where defendants are often silent.

The article envisions a future where much of the main staple events of criminal procedure law will be recorded. Analyzing body camera policies from departments across the nation reveals that this future is unfolding now. The article proposes rules of judicial review to cultivate regular use of the audiovisual record in criminal procedure cases and discourage gaps and omissions due to selective recording. The article also offers rules of restraint against the seductive power of video to seem to depict the unmediated truth. Camera perspective can subtly shape judgments. Personal worldviews impact image interpretation. And there is often a difference between the legally relevant truth and the depiction captured on video. Care must be taken therefore to apply the proper perceptual yardsticks and reserve interpretive questions for the appropriate fact-finders.

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