We discussed this topic at length a few years ago during our body-worn camera stakeholder workgroup meetings, as there are arguments for and against allowing officers to view BWC footage before filing a report or providing a statement. This workgroup consisted of representatives from the League of Minnesota Cities, the Minnesota Counties Intergovernmental Trust, the Minnesota Chiefs of Police Association, the Minnesota Association of City Attorneys, the Minnesota County Attorneys Association, and several police departments. This working group met over several months to develop guidance and draft a model policy.
As a result, the League of Minnesota Cities provided agencies with guidance when making these decisions about viewing body camera footage, which is outlined in the LMC information memo on “Use of Body-Worn Cameras” and accompanying Body-Worn Cameras Model Policy. State law also offers significant guidance on policies governing law enforcement use of body-worn cameras and the resulting data.
The MGDPA and body-worn camera data
Like all data, body-worn camera footage comes with complications when distinguishing between public, not public, and confidential data.
Under the Minnesota Government Data Practices Act (MGDPA) section 13.825 Subd. 2 (1), data that documents the “discharge of a firearm by a peace officer in the course of duty” or “the use of force by a peace officer that results in substantial bodily harm” are public data. Therefore, body camera footage that captures such data is also considered public.
The MN Department of Administration’s Data Practices Office (DPO) has written two formal opinions (19-005 and 20-004) on body camera data and has provided guidance on the classification and retention of body-worn camera data.
Points made in favor of viewing
The Police Executive Research Forum (PERF) recommends that officers be allowed to review video footage of an event before giving a statement. PERF asserts that “allowing officers to view the recordings will help them remember the events more clearly, which will in turn result in more accurate statements and testimony.” PERF notes that it is extremely unlikely that an officer could ever perceive or recall the same amount of information captured by a digital, high-definition recording device, particularly when under stress. The PERF model recommends allowing officers to review BWC video footage before writing reports, giving statements, or providing testimony concerning typical law enforcement events. As PERF advises, withholding video evidence from an officer until after he or she testifies can “unfairly undermine the officer’s credibility.”
Other researchers, while stopping short of the same recommendation, note that negative downstream effects can occur when officers do not watch the video first, i.e., officers may be accused of lying when their accounts do not perfectly align with the video footage, even though such factors as stress and tunnel vision (i.e., inattention blindness) might fully account for the inaccuracies.
The Force Science Institute has also recently acknowledged the competing approaches to video review during use-of-force investigations and recognizes that the memory-enhancing value of watching videos must be balanced against the risk of memory corruption and the need to maintain public confidence. A recent Force Science Institute article suggested “ways that investigators might mitigate the risks of memory corruption and still benefit from the memory-enhancing effects of video viewing.”
Counterpoints against viewing
Some agencies and professional associations, such as the American Psychological Association (APA) and the American Civil Liberties Union (ACLU), have expressed reservations, however, about allowing officers to view BWC footage and other video evidence prior to giving statements about an officer-involved shooting or other critical incident. A video recording device is likely to take in far more information than the human brain can perceive and process at any given time.
As a result, when an officer reviews a recording, he or she will likely be introduced to some amount of new information that was neither perceived nor considered as the incident unfolded. Next, because the brain works to fit information into a cohesive narrative, it may be natural for officers to meld the newly acquired data together with their memory of the event to arrive at an account of what happened.
Once this new information has been taken in, it may be difficult for the officer to differentiate it from his or her “original” memory of what happened. It is also theorized that reviewing video may make it more difficult for officers to recall anything that wasn’t captured on camera, such as events outside the view of the device, as well as internal perceptions and thought processes.
A hybrid approach
Whether or not an agency allows officers to review video footage before being interviewed about a critical incident, PERF’s concern about unreasonably undermining officers’ credibility warrants consideration. BWC footage is likely to bring forward a greater amount of information and more accurate details than would be possible for a human observer or participant. It follows that comparing an officer’s recollection to the video is not a fair measure of credibility or truthfulness.
The LMC model policy provides two options for video review and leaves it to agencies to include guidelines on viewing videos in their policies addressing critical incidents. A separate LMC information memo, Planning for Critical Incident Responses, and an accompanying Critical Incident Response Model Policy, recommends a hybrid approach of:
- Not allowing officers to view video before the interview session.
- Allowing officers to review the video and other digital evidence during the course of the interview, and then asking questions or allowing opportunities to clarify any issues that surface as a result.
- Starting the interview process with a recognition that there will likely be some differences between the officer’s memory and the digital evidence. Providing this recognition is recommended to address officers’ fears over uninformed games of “gotcha” being played later by cataloging the differences between human memory and digital recordings.
Regardless of a police department’s final position on this topic, a written department policy should include language that clearly outlines the department’s rules for video review by officers following a critical incident, officer-involved shooting, or serious use-of-force incident.
If you have any questions or comments, you may contact me at tstille@lmc.org or give me a phone call at (651) 215-4051.
Remember: Responder Safety = Public Safety.
In the meantime, stay safe and be careful -
Tracy
