Originally published on the Force Science Institute website. Republished here with permission.
By Thomas McCarty
When force, especially deadly force, is captured on video, agencies must decide whether to allow the involved officers (or others) to review any related video evidence before writing reports or giving a statement.
On the one hand, researchers have found that reviewing video and other visual and audio cues can enhance an officer’s memory of stressful and complex events. [1] To that end, some agencies adopt body-worn camera (BWC) policies that permit and encourage officers to review available videos before drafting reports or giving statements regarding any law enforcement actions. [2]
However, not everyone agrees that officers should watch videos. Instead, they propose BWC policies that would prohibit officers from reviewing videos before giving use of force statements (while permitting viewing for a variety of other reports). [3] Those supporting this approach, including the American Civil Liberties Union (ACLU), argue that allowing officers to view video is an “advantage” not given to “other suspects” and that officers who are “inclined to lie” can more easily tailor their statement to the video evidence. [4]
This article will discuss common objections to officers viewing videos in use of force cases. As detailed below, many of these “anti-viewing” arguments fail to account for the practical and legal realities of force investigations. That said, there are legitimate risks to viewing video evidence, including the risk of corrupting an officer’s memory. This article suggests ways for investigators to mitigate these risks and still benefit from the memory-enhancing effects of video viewing.
Officers are Not “Other Criminal Suspects”
While some claim police officers who use lethal force should be treated like “other criminals,” there are important distinctions between police officers and most civilian homicide suspects.
Unlike “other criminal suspects,” police officers take an oath to protect and serve the public. They are vetted through rigorous background checks, polygraph examinations and psychological testing. They subject themselves to screening, training and supervision with the expectation that their judgment and performance will enjoy the benefit of the doubt and a presumption of regularity.
Unlike “other criminal suspects,” police are authorized to use reasonable force, sometimes deadly force, to protect themselves and others, and are expected to make arrests even in the face of lethal threats. An officer who justifiably uses deadly force to avoid being murdered is properly characterized as a “victim,” not a “suspect.”
Government employers increasingly require police officers to wear BWCs to capture audio and video recordings of their actions. “Other criminal suspects” are not similarly monitored. It is difficult to draw a compelling analogy between police officers and “other criminal suspects” when drafting a BWC policy. Even if a suspect voluntarily videotaped himself committing a homicide, it would be practically impossible for investigators to prevent them from reviewing the video before giving a statement.
Unlike “other suspects,” police officers routinely review video evidence before testifying in court, drafting reports, preparing probable cause affidavits and completing search warrant affidavits. The International Association of Chiefs of Police (IACP) model BWC policy explains that this is done to “enhance the accuracy” of officers’ statements. [5]
Given that the recognized purpose of reviewing video in all other contexts is to enhance the accuracy of officers’ reports and testimony, it is not clear why officers should be deprived of reviewing video before giving a statement about their use of force – a statement which is quite possibly the most important of the officer’s career.
Watching Video as a Precondition to Giving a Statement
While the debate is often couched in terms of whether an officer should be “permitted” to view video before giving a statement, the reality is that an officer has the Fifth Amendment right to refuse to speak with a criminal investigator. Practically speaking, this means an officer can condition their statement on their ability first to watch any video of the incident.
Although government employers can sometimes compel their employees to give a statement about the use of force, such Garrity statements ordinarily cannot be used for criminal investigation purposes. Suppose a law enforcement officer demands to review video before giving a statement to a criminal investigator. In that case, the investigator must choose between obtaining a statement on the officer’s terms or obtaining no statement at all. Since the ultimate question in any force investigation is whether the force was reasonable based upon the perspective of an officer on the scene, a criminal investigation into force is incomplete without obtaining the perspective of the officer who used force.
Criminal Defendants Have the Right to Watch Video Evidence
Under the Federal Rules of Criminal Procedure 16(E) and corollary state rules, upon a criminal defendant’s request, the prosecutor must allow a criminal defendant the opportunity to inspect and copy all “papers, documents, data, photographs, [and] tangible objects” in the government’s possession that are material to preparing a defense or that may be used in the prosecutor’s case-in-chief. [6] Video of an alleged crime falls within this broad category of items the government must turn over to any criminal defendant upon request.
In addition, criminal defendants may delay giving a statement about an alleged crime until after the prosecution has rested its case. The reality of criminal procedure means criminal defendants not only have the right to obtain copies of the video, but they can also watch how the prosecutor uses the video at trial before making any statement in criminal proceedings about the incident.
Given these realities, it is not clear that allowing police officers to view videos before giving statements provides an advantage over “other criminal defendants.” Although a police officer might review video evidence sooner in the investigative process than a typical criminal suspect, this ultimately benefits those criminal investigators and prosecutors who would otherwise not have obtained any statement from the officer. After all, the ACLU advises all suspects questioned by police to “remain silent and ask for a lawyer immediately.” [7]
Lying People Lie
It is sometimes argued that dishonest officers will use video evidence to perfect their lies. In fairness, if an officer is inclined to lie, viewing the video evidence might be helpful. That said if a dishonest person intends to lie about their involvement in a force encounter, waiting until after they have seen the evidence and heard the prosecution’s theory of the case, which is their right, could prove even more beneficial. In other words, our system of justice makes it impossible to craft policy that prevents dishonest people from corrupting the process.
The bottom line is that denying officers the ability to view the video evidence prior to giving a statement risks losing the memory enhancement benefits, while simply delaying the inevitable. Equally important is that failing to address the predictable discrepancies between video evidence and human memory early in the process can result in unfounded allegations of deception and unnecessary administrative and criminal charges.
Mitigating Memory Corruption
As discussed in Body-Worn Cameras and Memory, there is some concern that reviewing video could cause officers to unintentionally attribute something they see on video to their actual memory of the incident. Researchers have suggested that memory misattribution is more likely to occur when the underlying memory of detail is weak. This lack of detail can be due to stress, environmental conditions (e.g., low light), or other factors. [8] But the mere possibility of memory misattribution should not be used to deny society the benefit of video-prompted memory enhancement. Instead, investigators should consider the following steps to mitigate the risks.
First, criminal investigators can permit officers to privately review video immediately before the officer’s statement to investigators (instead of days or weeks before). Reviewing video close in time to giving a statement may help reduce the risk that officers will misattribute details in the video to fill in memories that may have degraded over time. Before allowing the officer to watch the video, the investigators may ask the officer to note any differences between the officer’s memory and the video during the officer’s review.
Both investigators and officers should understand the various limitations of video so they do not feel pressured, even subconsciously, to tailor their investigations or statements to harmonize with what they see on video. The video is simply one piece of evidence and not a full depiction of “what actually happened.”
At the beginning of the interview, investigators should remind the officer that videos cannot replace the human perspective. Cameras do not see, think, feel, smell, encode, or retrieve memory like humans. It is expected that human perceptions will differ from what is seen on video, and that even the most honest statements may not perfectly align with video evidence.
Von Kliem, Director of Consulting at Force Science, explains why their experts are rarely surprised when they identify differences between witness statements and video evidence. “Generally, people remember the “gist” of an experience. They interpret and store information that is the most meaningful but least detailed. We don’t necessarily expect people who are experiencing an event to remember precise speeds, distances, or even locations.”
Kliem continues, “When it comes to verbal interactions, people tend to remember the meaning of conversations more than the exact words. Since we aren’t video cameras, our memories aren’t expected to be a verbatim record of the experience. Although we perceive the words, voice, and body language during the conversation, we are much more likely to remember the meaning and the feelings that the conversation generated – not the exact words.”
With this understanding of memory, investigators should reassure officers that they are not expected to speculate or guess when recounting information. This simple statement reminds the officer that the purpose of the interview is to capture the officer’s experience and not a verbatim record.
To further mitigate the risk of memory misattribution, investigators should also ask the officer whether the officer: (1) noticed items on the video the officer did not perceive in real-time; or (2) perceived anything in real-time that is not reflected on the video. This approach permits the officer to identify and, if possible, address any discrepancies between their memory and the video. Although, it is frequently the case that the officer will not be able to “explain away” or reconcile the differences, and that is OK. The officers are often focused on experiencing the event, not witnessing it.
If an officer did not perceive something on video or is not sure about a detail, the officer should not be pressed to “remember” that detail during the interview. Open-ended, non-leading questions can help officers remember important details of their experience without pressuring them to remember precise details or quotes. Asking questions that a person would not reasonably be expected to remember is an invitation for misattribution of memory, confabulation, and dangerous speculation.
Finally, asking officers to “help me understand your experience” allows the investigator to identify the officer’s perceptions and other valuable information that are critically important to force investigations but otherwise unable to be discerned from video evidence.
References
1. See Kliem LV. (2020). Body-Worn Cameras and Memory. Force Science News, September 2020.
2. International Association of Chiefs of Police. Model Body-Worn Camera Policy (April 2014); International Municipal Lawyers Association. A Model Act for Regulating the Use of Wearable Body Cameras by Law Enforcement.
3. American Civil Liberties Union. (July 2021). A Model Act for Regulating the Use of Wearable Body Cameras by Law Enforcement.
4. Id.
5. See note 1, supra.
6. Gibmel N. (2016) Body Cameras & Criminal Discovery, 104 Georgetown Law Journal 1581.
7. American Civil Liberties Union. Know Your Rights: Stopped by Police.
8. Blaskovits B, et al. (2002) Exploring the Potential Impact of Body-Worn Cameras on Memory in Officer-Involved Critical Incidents: A Literature Review, Journal of Police & Criminal Psychology.
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 a Force Science graduate and has represented over 60 law enforcement officers in grand jury proceedings.
