(Editor’s note 3/28/2022: This article was edited to acknowledge the competing approaches to video review during use of force investigations, update citations, and clarify the IACP’s 2014 model policy language and position paper. Force Science 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. Whether and when an officer should view video evidence in relation to a use of force statement is a complex mix of law, policy, political priorities, and human performance. This article is not intended as legal advice. Officers and agencies are encouraged to work with their legal representatives when deciding how to proceed with these complex issues.)
Watching Video Evidence Before Providing a Use of Force Statement
When force, especially deadly force, is captured on video, agencies must decide whether to allow the involved officers (or others) to review any related video evidence before writing reports or giving statements.
On the one hand, researchers have found that reviewing video and other visual and audio cues can enhance an officer’s memory of stressful and complex events.1((See Kliem, LV (2020). Body-Worn Cameras and Memory. Force Science News, September 2020. https://www.forcescience.com/2020/09/body-worn-cameras-and- memory/ To that end, some model body-worn camera (BWC) policies permit officers to review available videos before drafting reports or giving statements regarding any law enforcement actions. 2((International Municipal Lawyers Association, A Model Act for Regulating the Use of Wearable Body Cameras by Law Enforcement. Accessed at https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/imla-bwc.pdf. Other model policies expressly prohibit officers from reviewing videos before giving use of force statements. 3((American Civil Liberties Union, A model Act for Regulating the Use of Wearable Body Cameras by Law Enforcement (July 2021). Accessed at https://www.aclu.org/other/model-act-regulating-use-wearable-body-cameras-law- enforcement. Still others, like the 2014 International Association of Chiefs of Police’s (IACP) model policy, allow the department to determine on a case-by-case basis whether an officer involved in a serious use of force (or otherwise suspected of wrongdoing) should be permitted to view related videos. 4((International Association of Chiefs of Police, Model Body-Worn Camera Policy (April 2014). Accessed at https://www.theiacp.org/sites/default/files/all/b/BodyWornCamerasPolicy.pdf
The varied approaches to viewing video attempt to balance the costs, benefits, and risks of exposing officers to video evidence before their raw experience is documented. Many of the “anti-viewing” arguments can be easily dismissed as they fail to account for the practical and legal realities of force investigations. However, other concerns deserve careful consideration as some research suggests that exposure to video evidence could corrupt an officer’s memory of past events. This article suggests ways that investigators might mitigate the risks of memory corruption and still benefit from the memory-enhancing effects of video viewing.
Officers are Not “Other Criminal Suspects”
Some argue that allowing officers to view video evidence provides an “advantage” not given to other “suspects.” They believe that video evidence will allow officers “inclined to lie” to craft false statements more effectively. Along these lines, some argue that police officers who use lethal force should be treated like other suspected criminals. This argument ignores important distinctions between police officers and most civilian homicide suspects.
Unlike “other criminal suspects,” police officers take an oath to protect and serve the public. They are vetted through rigorous background checks, polygraph examinations, and psychological testing. They subject themselves to screening, training, and supervision and expect that their judgment and performance will enjoy the benefit of the doubt and a presumption of regularity.
Unlike “other criminal suspects,” police are authorized to use reasonable force, sometimes deadly force, to protect themselves and others. They are expected to make arrests even in the face of lethal threats. An officer who justifiably uses deadly force to avoid being murdered is properly characterized as a “victim,” not a “suspect.”
Government employers increasingly require police officers to wear BWCs to capture audio and video recordings of their actions. “Other criminal suspects” are not similarly monitored. It is difficult to draw a compelling analogy between police officers and “other criminal suspects” when drafting a BWC policy. Even if a suspect voluntarily videotaped himself committing a homicide, it would be practically impossible for investigators to prevent them from reviewing the video before giving a statement.
Unlike “other suspects,” police officers routinely review video evidence before testifying in court, drafting reports, preparing probable cause affidavits, and completing search warrant affidavits. As expressly recognized in the 2014 IACP model BWC policy, reviewing video evidence can “enhance the accuracy” of such reports and testimony.
Since a recognized purpose of reviewing BWC footage is to enhance the accuracy of officer reports in other contexts, it is understandable that officers would want to watch BWC video before giving a statement about their use of lethal force. After all, any such statement will be used by others to make determinations regarding the officer’s career, civil liability, and criminal liability.
Watching Video as a Precondition to Giving a Statement
While the debate is often couched in terms of whether an officer should be “permitted” to view video evidence before giving a statement, the reality is that an officer has the 5th Amendment right to refuse to speak with a criminal investigator. Practically speaking, officers can condition giving a non-compelled statement on their ability to first consult with an attorney and/or watch any video evidence.
Attorneys defending officers in use-of-force cases may recommend this approach to minimize the risks of giving multiple statements about the same incident. The theory being, an officer’s testimony is less susceptible to being unfairly attacked in litigation if the officer gives investigators only one statement—a statement that captures the officer’s experience and addresses any discrepancies between the officer’s perceptions and the video.
Although government employers can sometimes compel their employees to give a statement about the use of force, such Garrity statements ordinarily cannot be used for criminal investigation purposes. Suppose a law enforcement officer demands to review video before giving a statement to a criminal investigator. In that case, the investigator must choose between obtaining a statement on the officer’s terms or obtaining no statement at all. Since the reasonableness of an officer’s use of force is largely informed by the facts and circumstances known to the officer at the time, a criminal investigation is certainly less complete without the involved officer’s statement.
Criminal Defendants Have the Right to Watch Video Evidence
Under the Federal Rules of Criminal Procedure 16(E) (and corollary state rules), upon a criminal defendant’s request, the prosecutor must allow a criminal defendant the opportunity to inspect and copy all “papers, documents, data, photographs, [and] tangible objects” in the government’s possession that are material to preparing a defense or that may be used in the prosecutor’s case-in-chief.
5 Gibmel, Noah, Body Cameras & Criminal Discovery, 104 Georgetown Law Journal 1581 (2016). Video of an alleged crime falls within this broad category of items the government must turn over to any criminal defendant upon request.
In addition, criminal defendants may delay giving a statement about an alleged crime until after the prosecution has rested its case. The reality of criminal procedure means criminal defendants not only have the right to obtain copies of the video, but they can also watch how the prosecutor uses the video at trial before making any statement in criminal proceedings about the incident.
Given these realities, it is not clear that allowing police officers to view videos before giving statements provides an advantage over “other criminal defendants.” Although a police officer might review video evidence sooner in the investigative process than a typical criminal suspect, this ultimately benefits criminal investigators and prosecutors who might otherwise not obtain any statement from the officer. After all, the ACLU advises all suspects questioned by police to “remain silent and ask for a lawyer immediately.”6((American Civil Liberties Union, Know Your Rights: Stopped by Police. Accessed at https://www.aclu.org/know-your-rights/stopped-by-police/#ive-been-pulled-over-by-the-police.
Lying People Lie
It is sometimes argued that dishonest officers will use video evidence to perfect their lies. In fairness, if an officer is inclined to lie, viewing the video evidence might be helpful. That said, if a dishonest person intends to lie about their involvement in a force encounter, waiting until after they have seen the evidence and heard the prosecution’s theory of the case (which is their right) could prove even more beneficial. In other words, our system of justice makes it impossible to craft policy that prevents dishonest people from corrupting the process. Departments that restrict an officer from viewing video evidence risk losing the memory enhancement benefits and may simply be delaying the inevitable. Equally important is that failing to address the predictable discrepancies between video evidence and human memory early in the process can result in unfounded allegations of deception and unnecessary administrative and criminal charges.
The Most Valuable Statement
Ultimately, the most valuable statement that an officer can give is one that reflects their honest perceptions, beliefs, and experiences during a force encounter. Allowing an officer to enhance their memory is consistent with these goals. However, it remains equally important that society has confidence that outside sources (including video) have not corrupted an officer’s memory.
To strike this balance, some attorneys recommend that officers document the officer’s experience before watching any video evidence and only then watch the video to identify any additional memories or inconsistencies. Depending on the jurisdiction, this process might occur between an officer and their attorney, an officer and investigator, or a collaborative process involving all of the above.
Mitigating Memory Corruption
As discussed in Body-Worn Cameras and Memory, there are legitimate concerns that reviewing video could cause officers to unintentionally but falsely attribute something they saw on the video to their actual memory of the incident. Researchers have suggested that memory misattribution is more likely to occur when the underlying memory of a detail is weak. This lack of detail can be due to stress, environmental conditions (e.g., low light), or other factors.7
Identifying procedures that effectively balance the risk of memory corruption against the benefits of memory enhancement is an area that deserves much more research. In the meantime, use of force investigations continue, and we are required to consider practical ways to address these issues.
First, it may be beneficial that any video review occurs close in time to the force event. This procedure may help reduce the risk that officers will misattribute details in the video to fill in memories that may have degraded over time. Before an officer reviews video, they should be encouraged to note any differences between their memory of the event and the details observed in the video. This procedure may have the dual benefits of reassuring the officer that some discrepancies are normal and that officers are not expected to reconcile their memory (or statements!) with the video.
Both investigators and officers should understand the limitations of video evidence so they do not feel pressured, even subconsciously, to tailor their investigations or statements to harmonize with what they see on video. The video is simply one piece of evidence and not a complete depiction of “what actually happened.”
It may be helpful for investigators to remind officers before the interview (ideally on the record) that videos cannot replace the human perspective. Cameras do not see, think, feel, smell, encode, or retrieve memory like humans. It is expected that human perceptions will differ from what is seen on video and that even the most honest statements may not perfectly align with video evidence.
Von Kliem, Director of Consulting at Force Science, explains why their experts are rarely surprised when they identify differences between witness statements and video evidence. “Generally, people remember the “gist” of an experience. They interpret and store information that is the most meaningful but least detailed. We don’t necessarily expect people who are experiencing an event to remember precise speeds, distances, or even locations.”
Kliem continues, “When it comes to verbal interactions, people tend to remember the meaning of conversations more than the exact words. Since we aren’t video cameras, our memories aren’t expected to be a verbatim record of the experience. Although we perceive the words, voice, and body language during the conversation, we are much more likely to remember the meaning and the feelings that the conversation generated—not the exact words.”
With this understanding of memory, investigators should reassure officers that they are not expected to speculate or guess when recounting information. This simple statement reminds the officer that the purpose of the interview is to capture the officer’s experience and not a verbatim record.
To further mitigate the risk of memory misattribution, investigators (or the officer’s attorney) should also ask the officer whether they: (1) noticed items on the video the officer did not perceive in real-time; or (2) perceived anything in real-time that is not reflected on the video. This approach permits the officer to identify and, if possible, address any discrepancies between their memory and the video. It will frequently be the case that officers will not be able to “explain away” or reconcile the differences, and that is expected. The officers are often focused on experiencing the event and solving the problems within it—they are not detached witnesses.
If an officer did not perceive something on video or is unsure about a detail, the officer should not be pressed to “remember” that detail during the interview. Open-ended, non-leading questions can help officers remember important details of their experience without pressuring them to remember precise details or quotes. Asking questions that a person would not reasonably be expected to remember is an invitation for misattribution of memory, confabulation, and dangerous speculation.
Finally, encouraging officers to “help me understand your experience” allows the investigator to identify the officer’s perceptions and other valuable information that is critically important to force investigations but otherwise unable to be discerned from video evidence.
Thomas McCarty is a partner at Keating, O’Gara, Nedved & Peter, PC, LLO, in Lincoln, Nebraska. Tom’s practice focuses on representing law enforcement officers in disciplinary matters, collective bargaining, use of force, and in-custody death investigations. Tom is a Force Science graduate and has represented over 60 law enforcement officers in grand jury proceedings.