In the “early days*” of body cams, there were mostly voices proclaiming how they would be the magic bullet that changes everything. After all, seeing is believing, and we would now be able to see what really happened rather than rely upon the police version. The defendant, assuming he survived to tell his side, was never credible, because “why would a cop lie”?

The body cam showed that they do. Asking “why” is a fool’s errand, though so many people fixate on it to “understand” how their belief system could be so badly screwed up. No matter. The “why” can launch a thousand law review articles. In the courtroom, we worry about the “what,” and video showed us what really happened.

Except a few of us didn’t stop at screaming “yay” at the magic bullet that would change everything, realizing that there were issues, problems, that would come of this. Radley Balko was one of the wet blankets who sucked some of the joy out of the magic. I was another.

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.

This was by no means exhaustive of the problems, but addressed one of the many issues raised by body cams. But it was a big issue. After all, what’s the point of body cams if they only appear when they serve to confirm the cops’ version and otherwise don’t exist, whether for legitimate reasons or the ability to make the undesired video go away?

Tim Cushing at Techdirt writes that the ACLU of Massachusetts, with the help of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law School (known to us old guys as Boalt Hall), produced a report with the earth-shattering novel idea that there should be a jury instruction to address it.

The ACLU of Massachusetts has a suggestion: if missing/incomplete recordings are central to a prosecution or a civil rights lawsuit, a better deterrent might be to allow juries to impose evidentiary consequences for failures to record. From the ACLU’s “No Tape, No Testimony”report [PDF]:

This instruction would tell the jury that, if it finds that the police unreasonably failed to create or preserve a video of a police-civilian encounter, it can devalue an officer’s testimony and infer that the video would have helped the civilian. If the jury finds that the case involves bad faith, such as the outright sabotage of body cameras, then it should be instructed to disregard officer testimony altogether.

What a cool idea, right? I read through Tim’s post, awaiting the part where he mentioned that this issue had been raised years earlier, while the ACLU was busy trying to figure out ways to pretend they weren’t violating the First Amendment while eradicating hate speech and revenge porn. After all, Tim knew about the issues Radley and I had been discussing.  But there was nothing there. Not a word.

So I went to the ACLU’s report, and at the back, there were endnotes, conclusively proving that academics were involved in its production because they were very official and excessively blue-booked. I went through each endnote, one by one, looking for a mention of Radley. Or me. Or anyone who had been on top of these issues years ago when the people who actually represented people who suffered the indignity of a good tune-up, if not a bullet, during an encounter with a cop, came to the realization that there were problems in need of fixing.

Nope. Not one. Lots of law review articles by academics of little account, massaging their unread expressions of normative theory wrapped up in doctrinal bows. Academics love to cite to each other so they can pretend they aren’t irrelevant and there will be a hope of validation outside their ivy bubble. After all, they’re much smarter than the rest of us, even if they couldn’t find their way to the courthouse without google maps.

That the ACLU turned to academics to do their writing is no surprise either. Advocacy groups might enjoy the dubious belief by the public and media that they actually have a clue what they’re doing, that they actually do what they claim in their mission statement to do, and that they aren’t a handful of overly-emotional and underly-experienced dilettantes whose deep passion far exceeds either their knowledge or worth.

After all, when an organization as well recognized as the ACLU says so, it must be, because it couldn’t just be a bunch of kids who will work for peanuts who have never actually done squat but enjoy the reputation of an organization that sometimes does great things and sometimes strays down terribly wrong paths.

So here we are, with a report by the ACLU, and the gloss of academic approval with a heavy dose of self-congratulation, arriving at the conclusion that some of us unworthy thinkers reached years ago. Too bad for all those people who went down, whether to jail or by bullet, for the lack of our solutions being taken serious in the intervening years. Too bad that Tim didn’t mention this gap. Kinda makes one wonder why we bother when the more officious types reinvent the wheel anyway.

*You know that “but for video” series? That was me. Others use it without attribution, but I started it.