The Miami Beach Police Department isn’t always in the news for positive reasons. And as a Criminal Defense Lawyer, I’m not really sure whether this new story is a positive or a negative just yet.
According to a recent Miami Herald article, by the end of this month, at least 30 Miami Beach Police Officers will be wearing body cameras. This is part of a three-month pilot program during which (mostly traffic) officers will be equipped with a small square camera on their uniforms. The camera will always be powered on, but it will only begin recording when the officer presses a button. The objective is to activate the camera so that it can record (audio and video) all interactions between these officers and the citizenry. At the end of their shift, the officers will deposit their cameras to have their contents uploaded to the cloud. Routine recordings will be stored for 90 days; recordings involving the use of force will be kept for up to 5 years.
The utility of this program is immediately apparent. Officers will almost certainly act differently (or should I say, appropriately) if they know they’re being recorded. Recordings can help create accurate accounts of what happened and replace the overly generic and vague arrest affidavits and incident reports we see time and time again. But the recordings will clearly impact more than the officers wearing them. As the Miami Herald forecasts, “supervisors will use the palm-size cameras to evaluate the officers. Prosecutors will use it as a tool in search of guilt. And lawyers will use the videos to defend their clients.” (Sidenote: I’m not entirely sure about the last clause, but read below for my detailed thoughts on this issue).
This new initiative can be attributed to Miami Beach Police Chief Dan Oates, who, prior to coming to Florida, had deployed a similar system in Aurora, Colorado. In the wake of all the recent headlines about police shootings of unarmed people, it’s not hard to see what some people in the general public are celebrating this program. Of course, not everybody is celebrating this program. The Miami Herald spoke with Fraternal Order of Police President Bobby Jenkins who said his biggest concern is the split-second an officer takes to turn on the camera and the possible loss of focus. In that split second, he continued, an officer could get hurt. (I’m not so sure that’s the most persuasive argument). But others are critical of the narrow scope of this pilot program, arguing that it need not be a pilot; roll it out for all officers in the field immediately and make recording mandatory for all interactions. Howard Simon, executive director of the ACLU of Florida, commented that “there could be crucial information missing. The exception should be when it’s turned off, not when it’s turned on.”
We live in an age of technology. Ok, well, “we” (i.e. the general public) do, but “they” (i.e. law enforcement) do not. And I think most people feel that it’s about time “they” caught up. As a Criminal Defense Lawyer, I simply can’t count the number of instances where a police department’s lack of data retention has been a cause of frustration. How many clients have been accused of resisting arrest, disorderly conduct, fleeing and eluding, making “furtive movements,” doing poorly on field sobriety exercises, or having contraband or weapons on their person or in “plain sight” in their vehicle without anything other than an officer’s word to prove it up? Sure, we make a living off of obtaining acquittals when the government’s case is predicated upon officer credibility, but that shouldn’t be the primary way in 2015. So many arrests, criminal prosecutions, and sadly, convictions (usually via plea bargaining) are solidified without either party actually knowing what happened (the prosecutor hardly ever takes our proffer as to what happened, which we, in turn, learn from our clients; and defense lawyers buck the prosecutor’s staunch, unwavering belief in the officer’s account of what happened).
Some people have asked me: “As a criminal defense lawyer, do you really want video recordings? What about your clients that actually did it?” Look, more than 95% of cases resolve via plea bargaining anyway. Frankly, I don’t think video recordings will increase that number; if anything, I think it might have the opposite effect for two reasons.
First, by and large, police officers either do not have a working knowledge of the laws or choose to ignore them. I anticipate that, at least in the short to medium term, recordings will create great fodder for us Hollywood Criminal Defense Lawyers. Think about all of the Fourth Amendment, Fifth Amendment, and statutory (e.g. accident report privilege) motions that can, not only be filed but bolstered by video documentation. Will a prosecutor be more easily persuaded to “nolle prosequi” or “no action” a case based on what he or she sees in the video and the arguments we present? I’d like to think so.
Second, I look at dashcam recordings and say, “fool me once, shame on you. Fool me twice, shame on me.” Meaning, there are a handful of local police departments that not only equip their officers with either body mics or dashcam video in their cars, but mandate recordings are taken in instances of DUI investigations. People would be floored if they realized how infrequently this equipment is “in working condition,” used, or, even when it is, properly retained. Besides Florida Highway Patrol, trying to track down these recordings is like trying to catch a unicorn in the wild. I don’t expect body cameras to be any different. That leaves an opening for us defense lawyers. If an officer’s failure to record his or her investigations with dashcam may amount to a due process violation requiring dismissal in a DUI, it would seem that the same logic would extend to body cameras, depending on the type of case, of course.
Sure, I’m a criminal defense lawyer. I make my living defending people and, contrary to popular belief, I don’t have the pleasure of representing only those persons who are factually and legally innocent of any wrongdoing, But as a trial lawyer and constitutional crusader, I can’t help but note that none of our clients are guilty before the verdict. If there is evidence to support an inference of guilt, whether it be direct or circumstantial, let the jury decide what weight to give it. That’s not my job. Do I want my client caught red-handed on camera in every case? Of course not, but I’m not willing to view body cams as a “silver bullet” for prosecutors just yet. Yes, they’re not exactly scientific evidence, which makes it harder to lump them in with polygraphs, confessions, fingerprint analysis, hair comparisons, and the like–all of which were, at least at one point or another, arguably more persuasive to juries than officer’s testimony–but there will be problems with it. When will an officer hit the record button? What vantage point will he or she have? Will it be maintained securely and properly? What can they record and what is off limits (i.e. privacy)?
Only time will tell whether this is a positive or negative. For now, it’s nice to see a police department reacting to the public outcry over police brutality in a pragmatic and timely fashion.
This article was published by Jordan Redavid, a Hollywood Criminal Defense Lawyer and Hollywood Appeals Lawyer, and founding partner of Fischer Redavid PLLC. If you or someone you care about is being investigated or has been accused or convicted of a crime, don’t hesitate to contact us, 24/7 at (954) 800-2155