CrimProf Blog

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

Friday, April 9, 2021

Fan on Audiovisual Evidence of Police Encounters

Mary D. Fan (University of Washington - School of Law) has posted two pieces on SSRN. The first is Democratizing Proof: Pooling Police Body Camera and Public Cell Phone Videos (North Carolina Law Review, Vol. 96, 2018). Here is the abstract:
There are two cultural revolutions in recording the police. From the vantage of police departments, there is the rapidly spreading uptake of police-worn body cameras. On the public side, community members are increasingly using their cell phone cameras to record the police. Together, these dual recording revolutions are generating important new questions and possibilities regarding the balance of power in producing proof and illuminating contested encounters. This Essay is about how pooling police body camera and public videos can address three emerging challenges in the police recording revolution. The first challenge is the controversy over failures to record contested encounters by officers wearing body cameras. The second is the perceptual biases and limitations of body-camera video. The third is nondisclosure and policy limits on use of body-camera video to detect violations.

This Essay argues that pooling public and police videos serves an important function in addition to offering evidence to solve crime. Including public videos in the official record democratizes proof so that members of the public can help shape and contest the official story. Perspective matters. A story can shift powerfully depending on the vantage point from which it is perceived and filmed—and depending on whether it is recorded at all. In addition to enhancing investigations, pooling public videos with police reports and recordings can better inform prosecutorial, defense, and judicial decision-making as well as police regulation.
The second piece is Smarter Early Intervention Systems for Police in an Era of Pervasive Police Recording (University of Illinois Law Review, 2018). Here is the abstract:
Investigations of police departments by the U.S. Department of Justice spurred the spread of early intervention systems that use data to detect officers at elevated risk of problematic conduct. These systems of internal self-surveillance remain even when consent decrees expire and federal investigators turn to other tasks—or pull back during Presidential regime changes. Such automated technologies of harm detection and prevention that outlast political upheaval are alluring—but they are only as effective as the data and criteria on which they rely to detect and prevent problems.

Current systems largely are dependent on reported events and use simplistic thresholds based on intuition to trigger red flags. To improve the harm prevention power and build a smarter system, this Article proposes using a rich and growing source of data not traditionally used in early intervention systems—audiovisual data from police-worn body cameras and community-member cell phone cameras. The Article also presents findings from the coding and collection of 213 body camera policies regarding whether a major source of audiovisual data—police-worn body camera videos—may be used to monitor and evaluate officers. While there are policy silences, gaps, and splits, the Article concludes that the majority of departments have the opportunity to use the rapidly accumulating trove of audiovisual data to create smarter early intervention systems.

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