Friday, September 25, 2015

Should police get to review video before Internal Affairs interviews?

The policy of allowing police officers to view video from incidents involving complaints against them before being interviewed by Internal Affairs drew fire this week from an editorial in the Corpus Christi Caller-Times (9/24). which opened:
There are compelling arguments for and not many against letting police officers see video and hear audio before being interviewed by internal affairs. This is a new policy included in the contract approved earlier this month between the city and the police union, but it also is a national trend.
Perhaps the only meaningful argument against this policy just happens to be the big one — that it gives officers a special privilege not extended to persons of interest in a police investigation.

It's important to note the distinction between an internal affairs inquiry and a criminal investigation. An internal affairs investigation focuses on officers' behavior as employees answerable to their employer and to the public. That's a marked difference from an investigation into whether officers violated the law while on the job and should be charged with a crime.

But what if an officer ends up being investigated in both contexts? The officer has had the opportunity to get his or her story straight based on the video/audio evidence he or she was allowed to see and hear.

Needless to say, that's not an opportunity extended to civilians questioned in criminal investigations — even those who haven't attained the status of person of interest. The potential discrepancies between their stories and facts not revealed to them before being questioned, including video not shown to them, are considered part of the evidence-gathering — a valuable part because discrepancies can make someone appear guilty. Discrepancies can be portrayed as lies because sometimes they are.

That so-called game of gotcha is exactly what the proponents of the new video preview policy for officers say shouldn't be part of the internal affairs process. They want a level of fairness that isn't extended to civilians questioned by police.
The opinion piece concluded by decrying a similar provision in Texas' new body cam legislation, whose regulation of camera use Grits has also criticized.
A new state law providing grants for body cameras includes a provision that officers view a video before giving a statement. The law could be touted as an all-around victory for transparency. It encourages more body cameras and therefore more video evidence, and it is the pinnacle of openness with the involved officers.

But defense attorneys whose clients are civilians are duty-bound to ask, why them and not us? It doesn't take a legal scholar or an oracle to foresee one of these defense attorneys winning a Miranda-like victory at the Supreme Court level someday based on that question. "They didn't show me the video" could supplant "they didn't read me my rights" as a prosecution-killer.

The arguments in favor of police having this privilege are no different for anyone else.
Unfortunately, the paper's disapprobation comes too little, too late. The city and police union have already adopted the language governing bodycams in the recently signed meet and confer agreement, which would have benefited from media scrutiny as it was happening instead of after the fact. At this point, the Legislature could take up the matter before the City of Corpus gets the chance to revisit the issue, which can't happen until the meet-and-confer agreement expires.


Ray Collins said...

You and others have addressed the fairness issues. I will state the obvious that the number of independent accounts of an event, any event, is directly related to the ability of someone who wasn't there to make a decision about what happened. Some person or people brings together eyewitness evidence, video evidence, and physical evidence. The various independent streams of evidence are weighted and a decision is made that leads to a plausible, defensible version of what happened.

Jennifer Laurin said...

Dan Simon, whose work I respect enormously (see "In Doubt," e.g.), has an interesting take on these policies, rooted in psychological research and a kind of regulatory realism. Not sure I agree, but worth considering a view from the "loyal opposition."

Anonymous said...

The difference between an officer being questioned and a "civilian", a term I hate, is that the officer is required to answer such questions or lose his job while the civilian has the right not afforded the officer to plead the 5th. So the fairness issue works both ways.

As another brought it up, psychological research has compelling evidence that eye witness testimony is flawed under the best of circumstances, people recollecting events differently than happened. This holds true for police as well as the rest of us, no vast conspiracy to deprive others of their freedom for the most part. Sometimes events get turned around or remembered in a different order than they happened which is where the use of the video footage can prove invaluable in having the police get the details correct, something we should all appreciate and strive for. The term "cluster f..k" is used all the time when so much is happening so quickly that even the best trained observer is going to miss portions of events or try to place them in some semblance of order that may not have taken place as such, video footage helping all parties with finding the truth, which may be against a suspect's best interests but not against finding the actual truth.

So as far as letting cops see the footage, I'm all for it whether that right is denied everyone else or not, the goal should be to extend that right to the rest of us rather than work backwards to deny it to others. The end goal should be to find the truth, not protect someone from the consequences of their actions, police officer or criminal suspect (or both).

Anonymous said...

This it why alot of people don't trust the police , this was the choice of the officer to wanna work where you lose your right. I'm sick of this police get special treatment and its getting more and more easy to see.. its a war on its own people

Anonymous said...

Sorry folks but for those who think the target of an investigation, any investigation, should be allowed to see any video prior to making their statement is ludicrous at best. EVERY cop, as well as EVERY suspect will word their statement to correspond to the video, in the best light they can make it to protect themselves. That is human nature.

Look at it as if you don't have a video. Do you let your witnesses sit around in a room listening to the statements of others present at the scene and then allow them to make their statement afterwards? Nope, you separate and interview to later compare. A video is just another witness.

Let them make their statement and only then see the video, allowing them to make a second statement afterwards to explain any discrepancies. "Oh, ya, I was wrong. The tape reminded me that I did this because..." Again, same way as if it was a witness making a statement. :~)

Anonymous said...

As for Corpus, make any issue a criminal investigation, and prosecute, if appropriate, if they give no statement without viewing the video. Let 'em answer in court until they change the agreement. :~)

Anonymous said...

"Sorry folks but for those who think the target of an investigation, any investigation, should be allowed to see any video prior to making their statement is ludicrous at best. EVERY cop, as well as EVERY suspect will word their statement to correspond to the video, in the best light they can make it to protect themselves. That is human nature."

Every defendant has the right to confront his accusers and the evidence against him. Scott mentioned the concept of playing a game of "gotcha" in the original article, apparently you are an advocate for it, our society having neither the resources nor number of courts needed to play it on a wholesale basis. Any change along those lines of thinking would only have a short term impact at best, those charged with crimes having a right to timely disclosure of all evidence against them.

john said...

Police already have tremendous advantage and cover-up. They drastically need oversight, and accountability. I know it seems unfair, when politicians have so little; but cops were to protect and serve, not see how strong their union could
We also need the Sheriffs to understand they are the top law enforcement, and help hold city cops back, as needed. But that's evolved so far away from constitutionality, i fear for us all.
Anyhow, "internal affairs" are STILL cops, STILL in the union, STILL answering to somebody in the boys club.
Did you see those eastern idiot whiteys blast the black wheelchair guy to pudding??
THERE HAS LONG BEEN A WAR ON CITIZENS, FROM COPS. IT'S NOT THE OTHER WAY AROUND; ONLY A HANDFUL OF PUNKS DO THAT. Is it 40 times more people killed by cops? I've seen different numbers, often set to apply racism.
I suspect the NRA and gun talk scared the cowardly politicians & their liberal left owners, SO LONG, it's why they militarized the police. And now the police are caught in the middle--between their citizen (& now tons of other) neighbors, and the political bosses who pay them.
And now, as the cops are told to say, I FEAR FOR MY LIFE.

Anonymous said...

I think fairness is applying the same standards and practice to everyone. Therefore, everyone should be permitted to see the evidence against them immediately. If a police officer accused of something should have access to the evidence, so should anyone else accused of something. The minute someone is arrested they should have access to all evidence, videos, documents, investigative reports, etc. I never understood the need to investigate things in secret. Just open it all up from the beginning. That would be fairness, wouldn't it?

thelawproject said...

I can tell you first hand having been down the internal affairs rabbit hole in New Jersey that: evidence is what the lead investigator say's it is. I had a CD video of a deleted (recovered by software) assault by two local LEO'S and reams of evidence. The final disposition: "NOT SUSTAINED". All this fell apart in the end with discovery in my Federal Civil Rights Lawsuit and an out of Court settlement. It's purely an internal, administrative process with no appeal or oversight.
This is new level of the end run process to lock down the Get Out of Jail Card that goes with the territory.

Anonymous said...

2:25PM - grand juries hear cases in secret and often witnesses, victims, etc are brought before a grand jury . Make that open to all?

If investigations, say child porn or sexual assault of a child, were open from the beginning, suspects would be knowledgeable of the investigation and therefore would know to hide/destroy or otherwise circumvent any criminal charges.

Investigations occur certain ways because time has show the process generally works. Court opinions (Brady, etc) and legislative actions (Michael Morton Act) help bring the balance you speak of. Not a perfect system, but it generally works.

Anonymous said...

Anon 11:40,

You don't get the opportunity to confront you accusers until the investigation is over and you are in court. That is EXACTLY what every cop does on the job - in many cases failing (inappropriately) to even provide Brady when required. No cop reveals their evidence prior to the completion of the investigation unless they believe it assists in furthering their case. Yet you believe that cops potentially being investigated for a homicide should get to see some of the most valuable evidence prior to being interviewed. Bullshit. As John Cokos calls it, it simply is another "Get Out of Jail" card for the boys in blue. I speak as a former criminal investigator. How about you?

Anonymous said...

Either everyone should have an opportunity to review the video before making a statement or nobody should.

thelawproject said...

I want to add a new word to the Internal Affairs preview lexicon: It's called Parallel Construction, in short a second dialog set up describing the same set of circumstances, but with an entirely different outcome based on the reshuffling of the available data. Law Enforcement as a group past masters of this arcane art. If you can frame the argument early in the process, what difference do the facts make?

Anonymous said...

Neither side should get a chance to see the video before making a statement, this way the truth will come out. A policeman should be honest faithful and true, if he/she is not, they should not be on the force. They are supposed to protect and serve. End of conversation.