Quirky Evidentiary Issues With Body Cameras

Body cameras and squad videos have the potential to change a lot of things in the criminal justice system for the better. But there are evidence issues that accompany the technology that judges (and lawyers) ought to be aware of.

See William & Mary Law School’s Jeffrey Bellin and Shevarma Pemberton’s article, Policing the Admissibility of Body Camera Evidence (Fordham Law Review). Here is the abstract: 

Body-worn cameras are sweeping the nation, becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document their abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the officer’s perspective, these statements (“he just threw something into the bushes,” “your breath smells of alcohol”) have the potential to be convincing evidence. Their admissibility is complicated, however, by conflicting currents in evidence law.

Oral statements made by officers during an arrest, chase, or other police-civilian interaction will typically constitute hearsay if offered as substantive evidence at a later proceeding. Yet the statements will readily qualify for admission under a variety of hearsay exceptions, including, most intriguingly, the little-used present sense impression exception. At the same time, a number of evidence doctrines generally prohibit the use of official out-of-court statements against criminal defendants. This Article unpacks the conflicting doctrines to introduce a complex, but elegant, pathway for courts to analyze the admissibility of police statements captured on body-worn cameras. The result is that the most normatively problematic statements should be excluded under current doctrine, while many other statements will be admissible, aiding fact finders to assess disputed events.

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