recent webinar on the question of whether officers should be allowed to
review body cam video before giving statements on use-of-force
incidents featured a spirited clash of opinions among two law
enforcement lawyers and a forensics expert, but in the end offered
agreement on two critical points:
1. To avoid
potentially damaging pitfalls, officers and their attorneys need special
expertise about the nature and limitations of video recordings,
regardless of when they’re viewed;
2. Departments must be actively educating their
communities now about the surprising realities of video footage to
preserve trust in the face of future controversial episodes.
roundtable participants were Ken Wallentine, an attorney and
supervisory special agent who directs the Utah Attorney General’s
Training Center; Laura Scarry, an attorney and former police officer who
specializes in defending law enforcement officers and their agencies;
and Grant Fredericks, a former Canadian officer and a certified
Forensics Video Analyst.
Here are some highlights of their exchanges.
Video footage is a common, but flawed, source of evidence
These days Fredericks states, “Video images
are more common in serious criminal investigations than any other
source of evidence – more than DNA, fingerprints or eye-witness
The popular belief is that cameras capture exactly
what happened at the scene they’re recording. But in truth, Fredericks
emphasizes, video images can be significantly deceptive because there
literally is more to them than meets the eye.
In the webinar, he
used compelling footage from actual cases to demonstrate a few of the
scientific shortcomings of body cams, dash cams and surveillance cams
that UOF investigators commonly are unaware of.
He explains that
all modern digital video footage is “encoded using various forms of
compression,” a process that reduces data size but “fools the human
eye.” Because of compression a camera may appear to have recorded
continuous action when, in fact, some of what appears to be new images
is actually repeated footage “stolen” from previous recordings.
some action that occurred may be omitted entirely from what a viewer
sees later, Fredericks says. When images are dropped but gaps are not
immediately obvious, the footage “can give the illusion of increased
levels of force that didn’t exist” at the scene. In short, a distorted
and false record of what happened is created but not easily detected.
a working knowledge of such sophisticated forensic techniques as
“macro-blocking analysis” and “time tree analysis,” it can be impossible
to “identify the reliable images and ignore the images that are not
reliable,” Fredericks says.
It’s been his experience, he says,
that officers can easily “misinterpret” video of force events they’ve
been involved in. “They don’t want to be perceived as lying,” so if the
video seems to contradict what they remember, “they’ll change their
memory to accommodate the video.”
picks up on this concern in arguing that letting officers see their
video before giving a statement merely sets them up for trouble “by
making their entire account of the incident vulnerable” to damaging
“Inevitably they’ll be asked by plaintiffs’ attorneys, investigators, and the media, ‘Are you relating perceptions of the event
at the time you used force or are you giving a version you believe is
supported by the recording?’ There is almost no way for officers to
prove the former,” he claims.
“Once they’ve viewed a video, they
can’t unview it. They may see something on the video that is contrary to
their perceptions and feel pressured to change their account. This
makes them vulnerable to accusations they are lying. If they merely
relied on their perceptions of the situation, they would be in a better
position in court.
“Training can help cops be more comfortable
testifying to what they remember, while being fully aware that video may
depict something else. It is so innocent not to remember something
perfectly. That fact needs to be impressed again and again on cops.
Training should help officers admit without feeling funny that they
don’t really know what all they saw at the time [of the incident] or
precisely what they processed.”
In defending a pre-statement
viewing position, Scarry emphatically disagrees regarding enhanced
vulnerability. Seeing video before giving a statement “will result in a
statement that is much more difficult to pick apart in court,” she
Even with video’s acknowledged shortcomings, she says, watching footage
“allows the officer to review the incident in a more controlled
environment in which he or she no longer experiences the distorted
sensory perceptions that take place during a critical incident.” This
can aid the officer’s recollection and “assist in obtaining the truth of
The officer then has a chance to address
contradictions, differences in perception or memory gaps at the time the
statement is taken.
“It is much better that an officer’s first
and only statement address all issues,” Scarry argues. “That’s a lot
better than having an officer make errors and then in a ‘Gotcha moment’
in court have to say, ‘Oops, I guess I got it wrong.’”
that investigators taking an officer’s statement should make clear that
the officer “should be as candid as possible about any differences” that
he or she perceived at “the moment of executing a force option
decision,” compared to what he or she perceives during a video review.
Anticipate public opinion
officers to preview video, Wallentine posits, “can contribute
negatively to police/community relations and to a department’s respect
for transparency and legitimacy. Public confidence can diminish if
citizens perceive that an officer’s statement is tailored to the video
rather than a recall of perception.”
“Police/community relations rest on far more” than an officer viewing
video of any singular incident. “Having a clear policy in place,
educating citizens ahead of time about the policy, communicating clearly
in the event of an officer-involved shooting – these all are essential
and will help overcome any negative feelings associated with letting an
officer watch a video.
“How an agency communicates about what is
seen on body-worn camera video is far more important than the timing of
an officer’s viewing. The agency’s transparency about how it handles the
video and how it reached that decision and its willingness to engage
the public’s perception [are what] build trust.”
Guidelines need to constantly evolve
points out that the policy Lexipol currently recommends is not a rigid
dictum but is “still evolving.” She quotes it this way: “Any officer
involved in a shooting or death may be permitted to review available
video or audio recordings prior to providing a recorded statement or
completing a report.”
The qualifier “may be” makes this policy
“permissive, not restrictive,” Wallentine observes. “It allows for a
case-specific determination [that’s] nimble, agile, and customizable”
and accommodates possible input from outside parties like a district
attorney or independent investigative agency that may have a critical
role in the case at hand.
A possible “compromise” policy, the
debaters agreed, would mirror the approach Fredericks strongly believes
to be the best. First, the involved officer gives a statement “to the
best of his memory and ability.” Then, after being cautioned about the
limitations of recordings and ideally with the assistance of a
knowledgeable professional, he views video of the event. Then he is
asked to “fill in gaps” by commenting on elements “that may not be
consistent” with his memory.”
Training is key
unequivocal point of agreement among the webinar’s participants is
succinctly stated by Wallentine: “Cameras without proper training are a
recipe for disaster.”
He supplements Fredericks’ demonstrations of
often-unrecognized video shortcomings with a litany of his own:
“Cameras don’t track with an officer’s eyes. They don’t capture tactile
cues, such as when a suspect flexes muscles and starts to resist. They
don’t reveal a suspect’s prior history known to the officer. They don’t
record at the speed of life. They don’t capture images in 3-D or
represent distances accurately. They don’t accurately reproduce what the
human eye sees, and they don’t reproduce the subjective fear an officer
Without training to detect and assess the impact of such
factors, a UOF video may appear skewed to an officer’s severe
disadvantage. Absent special analysis skills, in Fredericks’opinion, the
“average LEO is not qualified to interpret video evidence.”
addition to strengthening the expertise of agency personnel, the webinar
panel expresses the hope, in Scarry’s words, that “agencies are
educating their community about the scientific nature of body-worn
cameras and other methods of gathering video surveillance,” as well as
the nature of human memory of high-stress encounters.
“absolutely mandatory,” Wallentine says, as part of the effort to keep
the public from rushing to judgment about UOF encounters.
Additional points of debate
The roundtable participants also debated a number of other topics:
Whether permitting an officer to preview video violates the spirit of the Supreme Court’s Graham decision, which cautions against bringing “20/20 hindsight” to a UOF evaluation;
Whether previewing constitutes an unfair special privilege for officers that is not extended to suspects and key witnesses;
Whether officers should be entitled to preview relevant video from all
cameras, including cell phones and surveillance units that are known to
have recorded the action in question.
The purpose of debating
these and other webinar topics is not to “solve” the controversy about
previewing, explains moderator Shannon Pieper, Lexipol’s marketing
communications director. Instead, the aim is to “explore different
perspectives” to arm stakeholders “with information to consider when
making their own decisions” about training, practices, and effective
About the participants
is an attorney and supervisory special agent who directs the Utah
Attorney General’s Training Center. He is a certified Force Science
Analyst and a current student in the Advanced Force Science Specialist
program, as well as a consultant and senior legal advisor for Lexipol.
is an attorney and former police officer who specializes in defending
law enforcement officers and their agencies in litigation for her law
firm DeAno & Scarry in Chicago. Also an attorney for Lexipol, she is
an instructor for Force Science Institute courses on Force Science
Analysis and on Body Cameras & Other Recordings for Law Enforcement.
is a former Canadian officer and a certified Forensics Video Analyst
who heads the firm Forensic Video Solutions in the Spokane, Washington,
area. A contract instructor in video analysis at the FBI National
Academy, he has testified as an expert witness on video-related matters
in more than 150 cases in North America and abroad.
to Lt. Glen Mills of the Burlington (Mass.) PD and president of the
Massachusetts Assn. of Crime Analysts for helping to facilitate this
About the author
The Force Science Institute was launched in 2004 by
Executive Director Bill Lewinski, PhD. — a specialist in police
psychology — to conduct unique lethal-force experiments. The non-profit
Force Science Institute, based at Minnesota State University-Mankato,
uses sophisticated time-and-motion measurements to document-for the
first time-critical hidden truths about the physical and mental dynamics
of life-threatening events, particularly officer-involved shootings.
Its startling findings profoundly impact on officer training and safety
and on the public's naive perceptions.
For more information, visit www.forcescience.org or e-mail firstname.lastname@example.org.
If you would benefit from receiving updates on the FSRC's findings as
well as a variety of other use-of-force related articles, please visit www.forcesciencenews.com and click on the "Please sign up for our newsletter" link at the front of the site. Subscriptions are free.
Why not! After all law enforcement lives are on the line as first responders!
Posted by Big Al at 9/6/2017 12:42:45 PM
Not gonna happen. U cant give the accused access to the evidence before it's logged into record.