AELE Special Report

Question — Should officers be allowed to view video-recordings of a use of force incident before giving statements to investigators or completing use of force or witness reports?

The following viewpoint appeared in a high profile incident report in 2009:

“Officers should not view video of an incident prior to being interviewed. Allowing officers to view video prior to an interview allows them to either subconsciously fill in the blanks where there are no memories of the incident or preplan for alibis for substandard conduct. Either way, allowing officers to view video of the event prior to the interview erodes the public’s faith in the process and unnecessarily impacts the investigation.”

Review of BART PD Policies, Practices and Procedures re: New Year’s Day 2009, page 5.

Report posted at http://www.bart.gov/docs/Meyers_Nave_Public_Report.pdf

Responses — from three police attorneys:

1.      Michael P. Stone, counsel for individual officers and officer associations in California. ^[1]

2.      Martin J. Mayer, counsel for police chiefs, sheriffs and governmental entities in California. ^[3]

3.      Wayne W. Schmidt, former editor of the Fire and Police Personnel Reporter. ^[4]

• Note: Each attorney has responded from a personal perspective, and their views are not those of their firms or clients.

Michael P. Stone, Esq. ^[1]

This is a bad policy. Haven’t we learned anything about videos since Rodney King? Whether it is a news cam shot from a helicopter, a video shot by a news “stringer” or a citizen bystander, or even a police in-car video, cops in the film will never recall a use of force event the way the camera records it.

The greater the number of cops involved, the greater the variations in sequencing and recall. The same phenomena appears even more profoundly when the event is protracted, dynamic and violent; the greater the threat, the higher the odds that the officers’ recall will not coincide with the film.

In the “Rodney King” video, none of the 15 or so “bystander” officers recalled the event in the same way as George Holliday’s video captured the grainy images. For those who were directly involved trying to control King, the inconsistencies were even more pronounced. Were all these officers lying? Hardly.

But investigators foolishly assumed that the video film was the “reality”, and to the extent the officers’ recollections, accounts and sequencing were at odds with the film, they must be either lying or just plain stupid.

So many times I have seen transcripts of interviews in “use of force caught on video” cases, and read in horror and disbelief as the investigators tortured the officer:

Investigator: “Your recollection of the suspect’s actions prior to your shooting him is not supported by the video film. Do you have any explanation for that? “

Officer: “Uh…well no, I don’t.”

Investigator:  “Well, okay. And you do understand that you will be charged with making false and misleading statements if the reviewers of this investigation during the adjudication process, determine that the evidence, including the video, shows that you were dishonest in your statements about this shooting?”

Officer: “But I can only tell you what I remember. I cannot account for the video. I am telling you the truth…”

In King, none of the officers recalled the incident in the same way.

And none of their accounts matched the video. For example, Officer David Love was the only African-American officer on-scene and captured in Holliday’s film. Prosecutors in both state and federal trials implied Love was lying because his memory and the video were at odds.

In the third civil rights trial damages, King’s attorney Milton Grimes accused Love of “lying to protect the white officers”. Outside at the noon press conference, Grimes called Love “a perjurer” and “the LAPD House Negro”. ^[2]

Despite the defamation verdict against Milton Grimes (which came 3 years later) there was never an LAPD officer whose character for truth, honesty and veracity was more severely and unfairly attacked in public than David Love’s. In 30 years of defending LAPD officers, I have never known one whose character for integrity and truth surpassed David Love’s.

But Love suffered years of suspicion and distrust in his own community - all because his testimony did not match the damnable video, and because Milton Grimes shamefully took advantage of the color of David’s skin to brand him the “LAPD House Negro”.

The point is, I asked Love “How many times have you been shown this video over the past two years?” He replied, “Hundreds”. He went on to testify that the video only confused him; but after so many viewings in the presence of investigators and prosecutors who worked on him, he lost confidence in his memory and had trouble telling the jury whether some things he remembered were actual memory or video replay in his mind’s eye; somewhat like brainwashing. Many of the other officers had the same experience.

Withholding the videos until after the officers make detailed statements sets the stage for disbelief in their veracity or the old favorite, “Gotcha!”, whenever those films do not match the officers’ accounts.

Yet, it is practically guaranteed there will be differences and inconsistencies - sometimes dramatic ones. The reason is simple: the camera’s view can never be the same as the officers’.

Promulgating a policy like this ignores the 18 years of experience and history we’ve seen since Rodney King. Far from being indisputable “reality” evidence, these videos are often very deceptive and illusion-like; yet at the same time they are compelling, especially when viewed by lay jurors. Ask any police defense trial lawyer.

Martin J. Mayer, Esq. ^[3]

I’m not sure why we would withhold the viewing of a tape unless it is to “catch” the officer in an inconsistency.

If we are trying to determine “what happened,” wouldn’t allowing the officers to view the tape assist them in refreshing their recollection?  After all, we insist that they review all evidence before testifying in court. Officers are allowed to review notes, even while on the witness stand, to refresh their recollection. It is appropriate to allow a review of the video.

However, I can give an example where I don’t believe that’s a good idea; an officer brings a handcuffed suspect into the sally port and the suspect claims the officer hit him or slammed him against the wall at that time.  There is a video camera in the sally port.  This is not a situation which is out in the field, with lots of activity, or multiple people involved. 

In this case, we DO want to know what the officer will say because, quite frankly, there isn’t a lot of confusion, or a running pursuit, or a fight in the field. It is pretty simple: did the officer hit the handcuffed suspect or not?  That’s pretty straight forward.

I think we need to decide on a case-by-case basis, but I do not think there should be an absolute rule prohibiting the viewing of a tape in all instances.

Wayne W. Schmidt, Esq. ^[4]

Various members of the IACP Police Psychological Services Section have quantified perceptual distortions in the case of officers that were involved in a shooting or another critical incident.

In the Artwohl study, 62% of the officers reported that the event appeared in slow motion, but 17% experienced fast motion; 79% experienced tunnel vision, 84% reported that sounds were diminished. ^[5]

52% claimed they suffered a memory loss for part of the event, and 46% reported a memory loss for some of their own behavior.

In the Honig & Sultan studies, which were six years apart, ^[6] similar perceptual disturbances were noted. 42/45% experienced tunnel vision, 40/41% said that time slowed down while 19/20% said that time sped up. Partial memory loss was reported by 20/22% of the officers.

Prof. David Klinger reported in a NIJ funded study ^[7] that 51% of the officers experienced tunnel vision, 82% reported auditory blunting, 56% reported slow-motion perception while 23% reported fast-motion sensations.

Moreover, there have been instances where officers did not recall firing their weapons, or remembered shooting fewer bullets than were actually fired. Psychologist Alexis Artwohl wrote in one scholarly journal:

“… incidents in which the officers do not remember discharging their weapons will continue to be a fact of life for law enforcement …

When officers have failed to remember having a weapons discharge, it is a mistake to automatically assume that the officer must be lying. There is ample psychological research which shows that memory gaps and distortions are a normal part of critical incidents.” ^[8]

The BART report claims that “allowing officers to view video of the event prior to the interview erodes the public’s faith in the process and unnecessarily impacts the investigation.”

I disagree. The public’s faith is not eroded when officer reports are consistent with a videotape. The public is shaken when those reports differ materially from a video capture.

An internationally acclaimed law professor ^[9] sometimes staged a fake shooting in his evidence class. The law students in attendance were then directed to write down their eyewitness statements.

• The reports often misstated the number of shots fired.

• Students differed on the age, race, and even the gender of the participants.

Were the students intentionally untruthful?

Should they have been denied admission to the Bar for “untruthfulness”?

Notes

1. Michael P. Stone is the founding partner and principal shareholder of Stone Busailah, LLP, in Pasadena, CA. He has practiced almost exclusively in police law and litigation for 30 years, following 13 years as a police officer, supervisor and police attorney.

2. A suit was filed seeking damages against Grimes for defamation and the intentional infliction of emotional distress. A Superior Court awarded $40,000 in compensatory and $20,000 in punitive damages. Love v. Grimes, Los Angeles County Super. Ct., # BC 120138. The verdict was upheld on appeal in the California Court of Appeal, Second Appellate District, # B122863.   

3. Martin J. Mayer is a partner in Jones & Mayer, in Fullerton, CA. He is general counsel for the California Police Chiefs Association, the California State Sheriffs Association, and represents many cities in federal and state litigation.

4. Wayne W. Schmidt was editor of the monthly Fire and Police Personnel Reporter (1975-2011) and has written extensively about police internal investigations, use of force reporting and similar topics. He is a charter member of the IACP Professional Standards, Image and Ethics Committee and also served twenty years as vice chair of the IACP Legislative Committee, where he chaired the subcommittee on internal affairs legislation.

5. Perceptual and Memory Distortion During Officer-Involved Shootings, by Alexis Artwohl, Ph.D., 71 (10) FBI Law Enforcement Bulletin 18 (Oct. 2002).

6. Under Fire - Reactions and Resilience: What an Officer Can Expect! by Audrey Honig, Ph.D. and S. Sultan, Ph.D., Police Chief, Dec. 2004.

7. Responses to Officer-Involved Shootings, by David Klinger, Ph.D., NIJ Journal No. 253 (Jan. 2006).

8. No Recall of Weapon Discharge, by Alexis Artwohl, 3 (2) Law Enforcement Executive Forum 41-49 (2003).

9. Northwestern University law professor Fred E. Inbau (1909-1998), author of several books on police investigation, evidence in civil and criminal cases, the polygraph, and scientific crime detection.