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Even after a trial is complete, it’s nearly impossible for members of the public to access body camera footage.
Body-worn camera footage is now a staple of San Diego’s criminal justice system – so much so that its absence in an incident suggests some sort of problem.
“If you don’t have video when you appear in court, that is a major red flag,” said San Diego Police Lt. Scott Wahl, a spokesman for the department. “It’d be like we made an arrest for drugs and there’s no drugs.”
More than 1,100 San Diego police officers are now outfitted with body cameras, and the San Diego County District Attorney’s office received more than 100,000 body-camera videos from police across the county since the start of 2016, according to officials with both agencies.
Indeed, the cameras were initially sold as a transparency tool that would reassure the public during times when disputes arose about police conduct. As officers were equipped with cameras, though, the department’s characterization of the cameras changed: They were a tool for the police, not members of the community.
That’s been borne out in practice now that all officers are outfitted with cameras and the footage is being used in trials. Even after a trial is complete, it’s nearly impossible for members of the public to access body camera footage.
Agencies typically withhold body camera videos from the public to preserve the accused’s right to a fair trial and avoid tainting the jury pool. But after trials in which the footage is shown to a jury, the footage still isn’t automatically made public.
Neither the San Diego Police Department, nor the San Diego County district attorney’s office, provides body camera footage through the state open records laws, even after criminal cases conclude, spokesmen for both agencies told Voice of San Diego.
Instead, those agencies refer requesters to the Superior Court where the trial was held, and copies of the videos are kept in the evidence room. Seeing the videos requires a court order. Getting that requires several pieces of information, not all of which are readily available.
Here’s the narrow set of circumstances under which the public gets to see police body camera footage.
Prosecutors routinely use body camera footage as evidence to obtain a conviction or compel a plea deal. The footage gets shared as part of the discovery process, which requires the prosecution to share with the defense evidence to be used at trial.
On occasion, body camera videos may even be exculpatory evidence, helpful to those cited by police. But more often than not, body cameras hurt the defense, said veteran San Diego defense attorney Michael Crowley. Still, Crowley welcomes the videos, which can set the record straight and clear up discrepancies in the memories of an officer or suspect.
“They help facilitate settlement, because it’s one thing if a law enforcement officer is writing in a report and it’s another if you can see it and test the accuracy of what the officer wrote down,” Crowley said. Still, “it’s not the panacea that’s going to solve everything,” he said.
Most body cameras capture witness statements taken after the alleged crime occurred, and there are “instances where I have said to the prosecutor, ‘Have you looked at the tapes?’ and they say, ‘I get your point,’” Crowley said. “One of the things I have come to recognize is prosecutors have some of the same problems we have with law enforcement not always being straight with them.”
Prosecutors or defense attorneys may show body camera footage in court during trial, and if you’re on the jury or in attendance, you’ll see the videos.
Law enforcement leaders in San Diego County crafted a policy last year that provides a path for releasing videos of officer involved shootings in cases where no charges are being filed against the officer. The policy includes video captured on body cameras and other video evidence, like surveillance cameras.
The protocol says the default position will be to release video evidence of officer-involved shootings, but it specifically prohibits releasing video before the district attorney’s independent review is complete and findings are made, and prohibits releasing video if criminal proceedings are pending.
Only then can the district attorney’s office release such video evidence, and some editing is allowed “for privacy and safety concerns” and to limit the video to the portions “related to the DA’s decision of whether or not a crime has been committed.”
San Diego Police Chief Shelley Zimmerman has said body cameras have driven police complaints down in recent years. That’s because existing policy gives police supervisors discretion to show the footage to citizens who complain about police officer misconduct, “to assist in clarifying the complaint, resolving the complaint or having the complaint withdrawn.”
Zimmerman told the City Council in February that footage is being shown to those who file complaints “most of the time,” and sometimes that’s all it takes to get someone to drop a complaint.
Here’s the hitch, though: You are much more likely to be shown the video if the officer caught you misbehaving, instead of the officer misbehaving, police officials confirmed.
“I don’t think flattering versus unflattering is the determining factor. It’s on a case-by-case basis,” said Wahl. “There are times where we have shown officers not in the best light. It’s not the norm, however. The vast majority is the opposite.”
But Wahl said footage that paints officers in an unflattering light isn’t buried.
It gets routed to Internal Affairs for investigation, is reviewed by the Community Review Board on Police Practices and may go on to further disciplinary or criminal proceedings, he said.
“Obviously, if there is a police officer who has done something that is outside of policy or worse, criminal, we are going to prosecute,” Wahl said. “All checks and balances are done. … The goal of holding cops accountable is being met. There’s no seediness involved.”
Not everyone is reassured.
“I’m concerned about individual sergeants doing that to try to dissuade someone from filing the complaint,” said Crowley, the defense attorney. “They are in an intimidating situation as it is. They don’t know the law on it. It just has the potential for coercion. … People don’t know what their rights are and don’t know if they’re being bamboozled.”
Crowley said he recommends citizens have an attorney present while viewing the footage before dropping a complaint.
Though he’s largely supportive of the current body camera policy, the double standard also doesn’t sit well with San Diego police union president Brian Marvel.
“Lately, I have seen a lot of agencies release footage to counter people that have made accusations,” said Marvel. “Only problem is you can’t have this expectation that the only time you release footage is to exonerate officers.”
Marvel said he doesn’t support the public release of all footage, in part, because “we don’t see people at their best a lot of the time. … I don’t want to see it turn into a TMZ situation.”
But his views have shifted somewhat as body cameras become the norm, and he said clarity about when the footage is released publicly for incidents other than officer-involved shootings would be helpful.
“When we were crafting the policy that we currently have, we were pretty adamant about it not being released until it’s been adjudicated through the courts,” but “certain footage may need to be released early,” Marvel said.
No efforts are currently under way to draft a policy for the public release of video for non-officer-involved shootings, said Wahl.
If none of the above scenarios occur, you may still be allowed to see body camera footage shown at a criminal trial if you get a court order. To do so, you’ll need several pieces of information and you will likely need to make multiple trips to the courthouse.
First, you need to submit a criminal trial exhibit room request to the court for consideration by the presiding judge on the case. The form requires a case name and number, and though it’s not listed, the name of the judge is also needed, said Superior Court Spokeswoman Karen Dalton.
Judge names should be shown on the web portal for the district attorney’s office, but may not be there. In that case, you can either make a trip to view portions of the court file in person to find out who the judge is, or ask the district attorney’s office to provide you the name of the judge on the case.
On the San Diego County Superior Court web portal for criminal cases, you can find case numbers by searching the defendant’s name. Or you can find the name by searching the case number. No judge information is listed, though.
Once the exhibit form is filled out, the court clerk will route the request to the judge, who then contacts the prosecution and defense attorneys to see if they object to the release of the footage – just as they would for any other evidence someone wants to see.
Dalton said this process can take up to several weeks, depending on the judge’s schedule and responses from the attorneys. Requests are usually granted, unless the case is still in trial and in some cases, a hearing may be held to hear any objections to the release of the footage.
A spokesman for the district attorney’s office said they would not object to the release of footage used at trial, regardless of the outcome. That still leaves the possibility of defense attorneys persuading a judge to withhold the footage, though it’s not clear under what circumstances that may occur.
If the court order is granted, the requester must then make an appointment with the evidence room at the courthouse and make a copy of any footage using his or her own equipment.
Voice of San Diego this month put in 10 requests to view body camera footage shown at recent criminal trials at the downtown courthouse and is waiting for a response.
Wahl said the obstacles in place between the public and body camera footage are appropriate.
“It’s not just a customer service tool. It’s evidence,” Wahl said. “At the end of a homicide case, you don’t take the gun out and start showing everyone. … It’s not going to be a soda dispenser.”