Originally published on the Force Science website. Republished here with permission.
By Thomas McCarty
Much ink has been spilled on the controversial question of whether involved officers should review video evidence before writing use-of-force reports or giving statements. The answer to that question requires an attempt to balance the costs, benefits and risks of exposing involved officers to video evidence before their experience is documented.
There has been comparatively less discussion, however, of when the investigator who interviews an involved officer should review video evidence. It is often assumed investigators should review video before interviewing an involved officer so no critical line of questioning is missed. After all, obtaining a voluntary statement — which involves a waiver of the officer’s constitutional right to remain silent — from an involved officer is no guarantee; criminal investigators simply cannot presume they will be afforded a second voluntary interview to clarify items the investigator missed during the first interview.
Even so, the Omaha (Nebraska) Police Department (OPD) has adopted an approach where its interviewing investigators do not watch video evidence before interviewing officers involved in serious uses of force. While this approach may not be feasible for all departments, OPD’s approach deserves careful consideration given the risks associated with reviewing video when evaluating officers’ actions under stress.
Legal standard: Applying the 20/20 vision of hindsight is prohibited
Under the Graham v. Connor reasonableness standard, the U.S. Supreme Court cautions that the reasonableness of an officer’s force should not be judged against the “20/20 vision of hindsight.” Practically, investigators must review each serious use of force in hindsight because they were not present at the time of the incident. Research indicates that shedding the “20/20 vision” that often comes with such hindsight review is particularly difficult. Indeed, researchers have found that once a person knows the outcome of an event, it is very difficult for them to completely evaluate the event as if they (or others) did not know the outcome, even when they are instructed to ignore their knowledge of the outcome. [1] Knowing an outcome may cause a person to place different emphasis on certain details than they otherwise would if they did not know the outcome. Similarly, knowing the outcome can cause a person to believe the actual outcome was more probable than a range of other possible outcomes.
Under the reasonableness standard articulated in Graham, it is necessary to evaluate force from the perspective of a reasonable officer on the scene. Unlike investigators engaging in hindsight review, involved officers do not definitively know the outcome of any encounter, particularly dynamic, rapidly evolving critical incidents that often require split-second decision-making. Such officers may focus on details that, in hindsight, seem irrelevant to an investigator. They may ignore details that, in hindsight, seem relevant to an investigator. And they may proceed under the perception that a certain outcome is likely even though, in hindsight, such an outcome may seem unlikely to an investigator.
Simply put, research indicates investigators face a difficult — but necessary — climb when they attempt, in hindsight, to review a force encounter through the perspective of an officer on scene rather than with 20/20 hindsight vision.
Video review and 20/20 hindsight vision
Watching video as part of the investigative process is a form of hindsight review that presents particular challenges for investigators attempting to avoid the lens of 20/20 hindsight vision. Video evidence is inherently limited by a variety of factors, including frame rates, compression, shutter speeds, field-of-view, and camera angle. Cameras also do not see or perceive like humans. Recent Force Science research found, for example, that a substantial amount of critical detail captured by officers’ eyes during a scripted scenario was not captured by the officers’ body-worn camera. [2] Through training and experience, officers learn where to fix their eyes and focus their attention to detect threatening stimuli; cameras simply do not scan for threats in the same way.
Thus, merely watching video does not give an investigator the complete perspective of the officer on scene — far from it. Even if a camera could identically track and mimic an officer’s eye movements throughout an encounter, the camera simply cannot not capture the officer’s internal mental impressions, thought processes, or perceptions.
Similarly, the process of reviewing video of a stressful event is, itself, much different than experiencing the incident in real time. Unlike an investigator reviewing video, an involved officer cannot pause the incident, rewind, fast forward, employ slow motion, or play through the scenario multiple times before making a conclusion about what force options are reasonable.
The trouble is video evidence can be particularly captivating despite its limitations. As we have previously written, naïve realism is a common default human mindset whereby humans tend to (1) assume their perception of something is objectively correct; (2) believe any other rational person viewing the same event will have the same reaction, conclusion, and opinion; and (3) draw adverse and uncharitable conclusions about those who offer alternative interpretations of the same information. Researchers have also found that the ease with which video is processed by the brain may enhance a reviewer’s perception that the video is a true and complete depiction of relevant events (processing fluency bias). [3] Together, these cognitive hurdles can cause observers to fail to consider the limitations of video and proceed as though the video speaks for itself, as a sort of third-party unbiased witness to force encounters.
Thus, even though video does not definitively tell us “what happened” — particularly from the perspective of a reasonable officer on scene — reviewing video with the benefit of hindsight may cause some investigators to drastically limit their inquiry or jump to conclusions about what an officer may have perceived, should have perceived, or could not have perceived.
The timing of investigators’ review: OPD’s approach
One approach to help diminish the risk that video review may cause investigators to unintentionally apply impermissible 20/20 hindsight review could be to preclude interviewing investigators from reviewing video evidence before interviewing involved officers. Such an approach could increase the likelihood that the interviewing investigator’s mind is open to ascertaining the officer’s perspective before being introduced to biases that may arise through hindsight video review. The OPD’s Officer Involved Investigations Team has adopted such an approach.
Specifically, OPD extensively trains its investigators in the Cognitive Interview (CI) technique, which aims to mine an interviewee’s memory for as much detail as possible about the incident, using non-suggestive, open-ended questions without interrupting the witness. These seasoned investigators — some of whom learned to interview witnesses before video evidence became ubiquitous — do not watch video evidence before interviewing an involved officer, and they tell the involved officer this as part of the rapport-building phase of the CI. At OPD, involved officers are not typically allowed to review their body-worn camera footage before giving a statement, but they are given the option to do so immediately after the initial statement has been provided, and they may clarify any additional information gleaned from viewing the video. If the officer chooses to view their footage, the interviewer may also view the video at that time. Interestingly, in practice, the majority of involved officers have chosen not to view their footage.
OPD Captain Jeremy Christensen, who oversees OPD’s Officer-Involved Investigations Team, reports a dramatic increase in the details gleaned from involved-officer interviews through this approach: “We’ve found that our investigators are much more inquisitive because they have not watched the video prior to the interview and, in using the CI protocol, they are able to glean significantly more detailed information from the involved officers. We also find that due to improved rapport building-efforts — including encouraging teamwork, acknowledging the effort and detailed recall involved in the process and transfer of control through open-ended questions — the involved officer is more engaged during the interview. It is not uncommon for an involved officer to provide detailed information over the span of 45 minutes to an hour, with the interviewer only asking three to five questions during that timeframe.”
While OPD has experienced positive results thus far, Christensen recognizes this approach is not for every department and should only be conducted in certain circumstances. Christensen recommends this approach only where investigators are experienced and trained in the cognitive interview technique: “In my experience, other interview techniques do not rival the CI’s ability to mine officers’ memories for details. Officer Involved Investigations Team members are required to undergo training in the Cognitive Interview before they are allowed to interview an involved officer. An insufficient, leading interview coupled with not watching video could compromise the depth of the investigation.”
In addition, in Omaha, non-interviewing investigators watch video evidence and then watch the involved officer’s interview via a live feed. Christensen explains, “There have been situations, although rare, where we need to clarify something a non-interviewing investigator saw on video that has not been covered by the involved officer and interviewing investigator during the initial portion of the interview. In those situations, our non-interviewing investigators and team leaders confer with the interviewing investigators at the end of the interview to make sure those lines of questioning are covered before the statement concludes. Even when clarifying information is needed, the interviewer is given just enough information to prompt a deeper dive once the interview resumes.”
Potential benefits to delaying video review for the interviewing investigator
OPD’s approach, while perhaps not suitable for every department, may bolster the CI’s rapport-building phase, and actively engages an involved officer to help describe as complete a perspective as possible. With this approach, neither the interviewer nor the involved officer have watched video, so they are on an even plane and must work together to mine the officer’s memory to the greatest extent possible.
In addition, avoiding video review before interviewing an involved officer may force an interviewer to be more engaged and inquisitive because they naturally know fewer details about the incident. While it may not be possible to completely shield an interviewing investigator from the ultimate outcome of an incident — e.g., the officer shot a suspect — it is possible to shield the investigator from various details and ultimate conclusions that may otherwise be prematurely drawn from video review. This approach may lessen the perils of naïve realism, hindsight bias and processing fluency bias, and, ultimately, the use of legally impermissible 20/20 hindsight vision to review an involved officer’s actions.
Finally, a goal of any interview should be to avoid tainting the witness’s memory through any means, which may occur through suggestive questioning or even body language. This is one reason the CI utilizes open-ended questions, such as “Tell me more about . . . . ,” instead of closed-ended questions like, “Did you fear for your safety or the safety of others when you saw the knife?” An interviewer who has not reviewed and drawn conclusions from video evidence may be less likely to taint an officer’s memory with closed-ended questions or even affirming, dismissive, or challenging body language.
Conclusion
Avoiding the application of 20/20 hindsight vision is a difficult task for anyone charged with reviewing an incident in hindsight. The OPD’s approach, which bars interviewing investigators from reviewing video evidence prior to an interview, is unique, but under the right circumstances it may help avoid various biases associated with video review and help glean more detail from involved officers’ memories.
To gain a deeper understanding of how interview timing, memory, and cognitive biases impact use-of-force investigations, enroll in the Force Science Certification Course. This premier training equips investigators, attorneys, and law enforcement professionals with cutting-edge research on perception, recall, and decision-making under stress.
About the author
Thomas McCarty is a partner at Keating, O’Gara, Nedved & Peter, PC, LLO, in Lincoln, Nebraska. Tom’s practice focuses upon representing law enforcement officers in disciplinary matters, collective bargaining, and use of force and in-custody death investigations. Tom is an Advanced Force Science Specialist and has represented over 75 law enforcement officers in grand jury proceedings.
References
1. Fischoff B. (1975). Hindsight is not equal to foresight: The effect of outcome knowledge on judgment under uncertainty, Journal of Experimental Psychology: Human Perception and Performance, 1(3), 288-299.
2. Murray NP, et al. (2024). The eyes have it! Functional field of view differences between visual search behavior and body-worn camera during a use of force response in active-duty police officers. Police Practice and Research, 25(4), 490–497.
3. Granot Y, Feigenson N, Balcetis E, Tyler T. (2018). In the Eyes of the Law: Perception Versus Reality in Appraisals of Video Evidence, Psychology, Public Policy & Law, 24(1), 93-104.
