Who Should Own Police Body Camera Videos?

57 Pages Posted: 10 Apr 2017 Last revised: 18 Oct 2017

See all articles by Laurent Sacharoff

Laurent Sacharoff

University of Arkansas School of Law

Sarah Lustbader

Vera Institute of Justice

Date Written: April 6, 2017

Abstract

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as helpful for gathering evidence against individuals in cases of resisting arrest, drug possession, vandalism, and so on.

This disturbing drift has undermined the promise of body camera programs in two ways: first, police control erodes accountability. Police control the videos themselves and resist disclosure, making it impossible for communities to hold them accountable for misconduct.

Second — the chief focus of this article — using these videos in ordinary law enforcement exacerbates the pernicious discovery asymmetry in the criminal justice system, affording police and prosecutors early access to these videos, but depriving defendants and their counsel of the very same evidence. Defendants once again find themselves pleading guilty or preparing for trial without access to the evidence against them or worse, evidence that might be exculpatory.

We therefore propose a solution: remove ownership and control of police body camera videos from police departments and repose that control in a neutral police accountability agency. This move would solve both problems: first, this new agency would disclose videos to the public and the media, especially in high-profile cases, according to neutral rules calibrated to enhance accountability. Second, this agency would disclose these videos in ordinary criminal cases to both sides equally — affording criminal defendants timely access to crucial evidence, which will promote a more just, accurate, and efficient criminal justice system.

Keywords: Police, Body Cameras, Accountability, Criminal Law, Criminal Discovery, Misdemeanors

JEL Classification: K14

Suggested Citation

Sacharoff, Laurent and Lustbader, Sarah, Who Should Own Police Body Camera Videos? (April 6, 2017). Washington University Law Review, Vol. 95, 2017. Available at SSRN: https://ssrn.com/abstract=2947963

Laurent Sacharoff (Contact Author)

University of Arkansas School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

Sarah Lustbader

Vera Institute of Justice ( email )

Attn: Sarah Lyon
377 Broadway
New York, NY, 10013
United States

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