After the shootings in Ferguson, New York, California, Iowa and many other states, there has been a public outcry for strengthened police transparency, particularly through the use of body and squad video cameras. For those lawyers who work in the criminal justice system, defenders and prosecutors, the verdict is virtually unanimous—videos greatly help to ferret out the truth, and substantially aide the defense and prosecution of defendants caught up in a potentially criminal act. “I can’t tell you the number of times a new client has told us that the police stopped him for no reason—he was driving straight as an arrow. However, when the squad video arrives, the vehicle can be seen swerving and crossing the road dividers. This led to an early settlement of the case”, a criminal lawyer recently told us.
Videos and body cameras reinforce the old notion that “A picture is worth a thousand words”. Why then, all the resistance on the part of police heads across the land? Proffered excuses made by the police include comments such as innocent people may be captured on the video, thus violating their privacy, or there may be depictions that catch subjects in compromising or embarrassing positions, or widespread airing of the depictions may taint potential jury pools. Some police officials argue that only a judge should decide whether a particular video should be made public. These positions and others cut against the public’s wishes for more transparency from the police departments who are paid to serve them. They also lack merit. The public is entitled to know all about the work of their public servants—this is not private data collected with any eye towards confidentiality—it is the real life actions of the public engaging with public servants. There should be nothing to hide by anyone—it is what it is, and the video will capture just that. There may be some limited occasions when a particular video should be temporarily kept secret when the release would seriously compromise a continuing investigation. But such cases should be closely monitored and regularly challenged because the concept invites abuse. Whether a potential juror is tainted because of a video that has been made public is something that can be resolved during jury selection. Moreover, a person generally does not have a reasonable expectation of privacy when caught in the public engaged in a compromising position. I’m sure there are many politicians, doctors, lawyers, judges and business people who would prefer not to have their intimate dirty laundry aired. But they are free to take measures to conduct their affairs in areas where the right to privacy does attach (i.e. motels, not public streets or parks).
Notwithstanding the clear public support for greater transparency on the part of the police, through the use of videos and body cameras, and the implementation of such tools by various departments, there continues to be efforts by the police to thwart the very purpose of the practice. Rules regarding when the cameras should be turned off and on are far from being uniform among the departments. This being so, it can hardly be said that the police are being transparent when they determine what gets on the video. Indeed, some of the most shocking revelations of police misconduct and criminal acts that have taken place recently were captured by bystanders using their private cameras, not by police videos. There has to be a clear and uniform set of rules that govern, without exception, the administration of police video practices. The cop on the street should not be the final arbiter of whether the camera is on or off.