The Missing Video Presumption

Radley Balko at WaPo provides us with yet another tale of monumental and pointless harm at the hands of a cop whose need for mindless control exceeded anything resembling human thought.

Police critic Will Grigg stitches together a series of news stories to construct an infuriating narrative from Utah.

When Mark Byrge had a minor traffic accident on a street in American Fork, Utah, he did the “responsible” thing by reporting the incident to the police. He has never stopped paying for that mistake.

Within a few minutes of receiving Mark’s call, a pair of American Fork cops arrived to document the damage to Byrge’s delivery truck from a collision with a tree branch that protruded into the street. Mark was cooperative – and he put up no resistance when the lead officer, Andres Gianfelice, placed him under arrest for an outstanding traffic ticket (as well as citing him for not providing proof of insurance).

That Gianfelice felt it necessary to arrest the guy who was doing right was bad enough. What follows, however, is where it turns into mindless insanity:

Byrge . . . made a single request of his captors: Owing to several back surgeries and the implantation of a $50,000 Spinal Cord Stimulator (SCS), Mark asked that the officers cuff him in front.

“Don’t tell me how to do my job – put your hands behind your back!” barked Gianfelice.

And of course, the damage was done. For no reason other than Gianfelice’s need to command. But this isn’t told to raise your blood pressure, but as the lead in to Balko’s real point, as Gianfelice’s memory of events was naturally entirely different, and in his narrative, he’s the hero and any harm suffered by Byrge was his own damn fault.

But Gianfelice was an officer on the American Fork Police Department, and that’s what makes this story special:

But here’s the kicker: Grigg notes that in 2007, the American Fork police department boasted to the media of being the first department in the country to outfit all officers with body cameras and microphones. A spokesman for the department told the Salt Lake Tribune that year, “We’ve been waiting. We’ve been looking for something like this to document the good work that police officers do.” But as Grigg explains, apparently not the bad:

There were three wired officers involved in the encounter with Mark Byrge – Gianfelice and his trainee, Nakai, and their supervisor, Sgt. James Bevard. The officers either suffered an inexplicable simultaneous failure of their VidCam units, or they didn’t bother to activate them. Nor was a dashcam recording made by either of the police vehicles on the scene.

Some might say this can happen. Tech doesn’t always work. Things fail, and sometimes a bunch of things fail at the same time. And others might respond, “and pigs fly.”  The question thus becomes who is liable when the video fails?  Radley offers his views:

Generally, it’s a good thing that police departments are moving toward outfitting cops with body cameras and microphones. But there should be some policies in place to prevent abuse. There should be strict privacy policies to prevent leaked video that could embarrass or harm private citizens.

And in cases where there should be audio or video that would corroborate one side or the other, and due to no fault on the part of the citizen there isn’t, there should be a presumption in any ensuing litigation that the audio or video would have corroborated the citizen’s account of the incident. That would seem to be a good incentive to make sure that the audio and video are both on, and that both are properly preserved.

The existence of video has fundamentally altered the equation of the “he said/she said” scenario.  Historically, the cop wins because “why would he lie?”  Video has conclusively proven that argument to be false, though it doesn’t mean that the cop doesn’t win. It means that we now have an independent means of determining who is telling the truth.  With video, neither prosecutors nor judges are left to go with their side or the odds.

But when there is, or should be, video, and yet it somehow fails to find its way into the hands of the court, the prosecution and the defense, what then? There are four possibilities, that we resort to the “he said/she said” approach, or that a presumption is crafted with an inference that supports one side or the other. The fourth is that we litigate the fault for why the video failed, and the police are only responsible if they are at fault for the tech failure.

It seems that the approach taken toward the crafting of a contract should guide the determination.  Ambiguity in a contract is construed against the person who wrote it.  In other words, whoever had the opportunity to craft a contract properly suffers the burden of his failure to do so.

The same presumption should apply to video in the context of criminal law.  If the police officers have video capabilities and it fails to work, then the presumption is that the video would corroborate the defendant’s account.

But the fourth approach, that the police (and by extension, the public) should not suffer because tech fails sometimes without anyone doing anything wrong, raises questions.  It’s one thing if the cops deliberately disable their video, or delete it, or play any sort of games to conceal what happened. It’s another if it’s just an ordinary failure of technology.  How can the police be blamed because tech isn’t perfect?

This would appear to be consistent with the approach to good faith under the 4th Amendment, that suppression is only a viable remedy if it serves to prevent an intentional violation of a person’s constitutional right. If there is no intent to do wrong, then no purpose is served by suppressing otherwise competent evidence of guilt.

And to put it in context, let’s say someone who has done a terrible crime, one that disgusts any reasonable person, would avoid conviction because a single body cam failed, no wrongdoing by a cop involved at all.  This is the person who we want to be afforded the full panoply of constitutional rights, and then promptly convicted for all the right reasons.

The problem is that the presumptions are created to overcome evidentiary gaps.  For example, New York law provides that everyone in a room is presumed to possess narcotics, not because that’s necessarily true, but because it would be impossible to convict anyone if each defendant points to his left and alleges, “the drugs were his.”  That there were drugs in the room is beyond question, but it wouldn’t be possible to prove whose they were. And so, the presumption was created to beat the evidentiary gap.

When it comes to missing video, the question is whether this is best addressed by a presumption designed to overcome the gap of responsibility, or as a remedy for wrongdoing in the management of the video by the police. As the police video lies entirely within the control of cops, and as an incentive to do everything possible to assure that evidence that shows what transpired exists, the contract analogy is more properly the basis for the presumption than the good faith analogy.  We aren’t punishing the cops for tech failure, but requiring the police to do whatever is necessary to assure that evidence of police/public encounters is recorded.

Does this mean that the heinous criminal we all despise might go free because a camera failed?  It does.  It also means that others will be convicted because the video worked, and provides documentary evidence to show a wrong was committed. Sometimes, that wrong will be shown to be committed by a cop. And that’s the point.

12 thoughts on “The Missing Video Presumption

  1. DDJ

    I enjoy your writing because you seem very good at seeing all, or at least many interesting, sides of the issues you write on.

    I, however, can just be ole dumb J. Q. Public…

    And to me, it seems that the “problem” is that the foxes are getting to guard the hen house. No one over the age of 12 believes that a properly designed and implimented video system had *five* cameras fail simultaneously.

    Were it not for the desire of prosecutors and police to maintian their capacities for malfeasance where it’s personally convenient, these video systems would (and could) be made to activate automatically AND be housed in tamper-proof cases.

    Your even-handed treatment of the possibilities, while accurate, is to me somewhat misleading. It draws attention away from what everyone knows happend: some cop roughed a person up because he could, and now all the rest of the system will circle their wagons around this jerk simply because he’s “one of them” and we, the dumb public, are not.

    1. SHG Post author

      Heh. Most non-lawyers confuse commentary with reporting, and think I’m unduly partisan. It’s appreciated to hear that I’m not that bad once in a while. That said, for lawyers, the “everybody knows” argument tends not to fly. While I, like you, don’t believe five cameras failed simultaneously, it could happen (even though everybody knows it’s total BS) and we’re stuck with the problems of proof. Remember, the defense is the one usually on the side of improbability.

      More to the point, this post really isn’t about the five cameras in the story, but about how to address the broader problem of camera failure in general. The story was the launching pad for the bigger issue.

    2. Brett Middleton

      Automatic activation, always? Well, who needs privacy anyway. Tamper-proof cases? Of course, because obviously the case contains all possible failure points that might prevent the video from being recorded or seen.

      We can all have lots of fun watching the cops come up with creative technical failures. Of course, we can’t have the criminals learning how this tech works lest they subvert it, so the departments will have to insist on conducting any review of missing video using internal tech review panels, and we can all pretend to be surprised when they repeatedly discover failures of the technology.

  2. Fubar

    The same [contract analogy] presumption should apply to video in the context of criminal law. If the police officers have video capabilities and it fails to work, then the presumption is that the video would corroborate the defendant’s account. …

    As the police video lies entirely within the control of cops, and as an incentive to do everything possible to assure that evidence that shows what transpired exists, the contract analogy is more properly the basis for the presumption than the good faith analogy. …

    Does this mean that the heinous criminal we all despise might go free because a camera failed? It does.

    “Might” is a long way from “will”.

    If I understand your contract analogy correctly, then the failure or absence of police recording would permit a jury instruction along the lines of “You may presume that the missing recording would corroborate the defendant’s account of events. You may also find that other evidence presented to you in this case, or your assessment of the testifying officers’ credibility, overcomes that presumption.”

    Depending on the quality of other evidence in a given case, a permissive jury instruction might not free as many “heinous criminals we all despise” as some might fear.

    Or are you suggesting that jury instructions mandate that a jury make the presumption?

    1. SHG Post author

      I think you’re right on both counts. “Might” rather than “will,” and a rebuttable presumption. I make the argument using the worst case scenario, as that’s how it would have to pass muster. Indeed, even with a presumption against the police on the video, that doesn’t mean other evidence won’t exist to prove the case. So, you correctly point out the error of my post, though I did it in anticipation of the criticism of the outcome it “might” produce.

      1. Fubar

        I see no error to correct in your post. I agree that some actually guilty “heinous criminal we all despise” might go free if juries were instructed that they could make the presumption. I just don’t think many would go free. in part that is because if faced with a rule permitting the presumption, police would have motivation to clean up their act and not lose their recordings.

  3. Tim Cushing

    In attempting to suss out why all five cameras “failed” to create recordings of this event, there’s seemingly only a few conclusions to be drawn:

    1. The cops never activated them because they don’t routinely activate their cameras.
    2. The cops intended to abuse this person and colluded to NOT activate their cameras. (The least likely possibility. While I don’t have a lot of faith in law enforcement, I find it hard to believe there was malice aforethought here — just the normal malice doled out for a civilian thinking he could possibly address an officer as an equal.)
    3. The recordings were deleted after the fact.

    Both 1 and 3 would be the most likely scenarios.

    In the third situation, the company providing the recording tech could be compelled to check and see if anything automatically recorded was deleted. But considering these companies like having steady customers, this would be met with the sort of foot-dragging and obfuscation one normally associates with government entities. Cameras on cops are great and all, but when the footage becomes just as selective as the memory of the person filling out the arrest reports, then there’s really nothing being gained.

    I do like the litigation angle, though. If nothing else, it’s bound to bring out some very creative explanations as to why the technology suddenly stopped working at the exact instant it might have recorded damning evidence. I love a good bout of verbal gymnastics, even when deployed to save people not worth saving.

    1. SHG Post author

      Don’t dismiss the possibility of the ancient legal doctrine of stercus accidit, absurdly unlikely though it may be.

    2. Brett Middleton

      I’m not so sure that we can dismiss your second possibility so easily in this particular case. Wasn’t one of the officers a trainee? I can easily imagine the experienced officer suggesting that there was no need to activate the cameras for such a minor encounter, especially if he intended to use this low-risk encounter to demonstrate how to assert control over a situation from the outset. I.e., show the new guy how “real” policing works out on the mean streets, because knowing how to gain compliance ensures that cops get home for dinner. This wouldn’t be “malice” exactly, but just something that it might be best not to have on record even if it hadn’t spun out of control.

  4. James VanDyne

    Long time reader but non-lawyer here. Just wondering, could the maintenance records for those devices and the official procedure for their use be obtained? I would like to think that if logs show that no work was needed to return these recorders to service, and the procedure states that all interactions are to be recorded (Which it will because then you’d know who shot the cop at the traffic stop, not to mention they have to justify the cost to the city.), you would have a hell of a case for the mentioned malice aforethought.

    1. SHG Post author

      They could, and would lend support to whichever side they favored, but then again, every second breakdown had a first.

  5. Pingback: Cameras Work (When The LAPD Wants Them To Work) | Simple Justice

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