Police Body-Worn Cameras: What Prosecutors Need to Know.

• Author: Hamann, Kristine

INTRODUCTION

AS POLICE DEPARTMENTS across the United States embrace the use of police body-worn cameras (BWCs), it is imperative that prosecutors be involved in the process as early as possible. The cameras will inevitably capture a great deal of evidentiary material that will be used in every type of criminal prosecution. Thus, systems and policies must be developed to ensure that this evidence is properly captured and delivered to the prosecutor in a timely and usable way. This can be a daunting task, complicated by the fact that in most jurisdictions, there are many police departments that send their cases to one prosecutor. Without coordination, the departments may purchase different technologies, implement different policies, and store the data in different locations. In some instances, the prosecutor may even be unaware that a police department has purchased BWCs.To start, the prosecutor should reach out to their police department(s) to determine whether they are planning to purchase BWCs. If the police department already has a program underway, it will be advantageous for the prosecutor to become involved in developing the program and in coordinating with other police departments in their jurisdiction.

This article is a guide to assist prosecutors in navigating the many complex issues surrounding a BWC program. It is divided into two parts: (i) BWC Technology and (ii) Prosecutor-Specific Considerations. Part One, BWC Technology, provides an overview of BWC technology and the systems in use by various police departments. This section discusses the technical specifications of BWC devices and supporting software and storage systems, and issues that this technology poses for prosecutors and law enforcement. Part Two, Prosecutor-Specific Considerations, discusses prosecutorial issues related to BWCs, such as developing office policies, access to recordings, discovery considerations, and the use of BWC recordings as evidence in the grand jury and at trial.

The law governing the use of BWCs and BWC recordings may vary by jurisdiction and this article is not intended to offer legal advice for any jurisdiction, but rather to identify issues that may be relevant to considerations of the use of BWCs and BWC recordings.

Body-Worn Camera Technology

SYSTEM CAPABILITIES

It is important for prosecutors to know the capabilities of the BWCs used by their police departments. The strengths and limitations of the technology behind the cameras may become an issue during investigations and trials. Some of the technical issues include: (1)

* Battery Life: The battery life of a BWC should allow the camera to function for an entire shift without having to be recharged. The camera does not run continuously, but instead is turned on and off by the officer as required by police policy. On average, an officer records between two to three hours during the course of an eight-hour shift. Ten or 12-hour shifts require longer battery life.

* Field of View: The horizontal field of view of a BWC is typically between 90 and 130 degrees. A wider angle lens may capture more of a particular scene, but video may become distorted and less detailed as the lens angle increases (such as when looking through a fisheye lens). Also, a wide angle lens may capture more information than the officer is capable of seeing with his or her own eyes and the recording may create a false expectation of what the officer should have been able to see.

* Night Vision:Though some BWCs come with a night vision option, police do not often purchase this feature. The concern, as with a wide angle lens, is that the camera will record more than the officer can naturally see and that the recording may create a false expectation of what the officer should have been able to see.

* On-Scene Playback: Some BWC systems allow the officer to play the recording while still in the field. This is usually done through a smart phone that is connected to the BWC. This capability is typically combined with tamper-resistant technology that prevents recordings from being deleted, edited or overwritten until transferred from the BWC. (2) This playback often assists the officer in tagging a particular incident with information that will allow easy retrieval at a later time.

* Buffering: Buffering refers to the capability that some cameras provide to capture several minutes of video and audio before the officer activates the recording. Buffer time may vary by department due to the storage capacity and battery life of a given department's BWCs. (3) Typical buffering is 30 seconds to two minutes of recording with no sound. (4) Buffering provides information about what was happening just before the officer activated the BWC.

* Average File Size: The average file size of a two-hour BWC recording is about four (4) gigabytes. This is about the same size as a feature film. (5)

* Docking System: Although technology is evolving to allow for uploading video in the field, most BWCs come as a system that includes an accompanying "docking station." (6) Docking stations charge the BWC unit, and the higher-end systems also transfer or upload digital recordings to servers or cloud-storage. (7) For most models of BWCs, an officer will place the camera unit in a docking station when returning to the department upon completion of a shift. (8) If the video clips have not been previously categorized or tagged, the officer or another member of the department can do so at this point in the process. (9)

* Compression: In order to extend the battery life of the BWC and reduce the data storage required for a video image, digital video typically undergoes a compression process that removes redundant data in the video file. (10) Compression is achieved through the use of a codec: a compression-decompression algorithm that controls the compression/decompression and/or the encoding/decoding of audio and video files. Compressing video may cause a short time lag that may result in a very small amount of lost footage." BWC systems typically incorporate MPEG-4, H.264 or H.265 compression. H.265 compression is a relatively new standard that improves upon H.264 compression by further reducing storage needs while maintaining viewing quality. (12)

* Photo Capability: A BWC may have the ability to take still photos. If so, the prosecutor should learn how to obtain these photographs in addition to the video recordings. (13)

* Video Standard: A BWC typically will export video to a standard, accessible video file format such as MPEG-4, AVI or MOV without requiring special plug-ins or software to convert the file to a readable format. (14) It is critical for the prosecutor to determine whether the BWC recordings are in a format that can be viewed and stored by equipment and computer systems in the prosecutor's office.

* Audit Trail--Safeguards to Prevent Copying or Altering BWC Video: In most systems, an officer will have no ability to delete a BWC recording once it has been captured. (15) Many body-worn camera models offer various safeguards to ensure that the data is not manipulated. (16) Some BWC systems have a password security system that controls access to the recordings and provides an audit trail of who has viewed, changed or deleted a recording. BWC systems such as the AXON Body by TASER International forbids users from deleting a video on the camera and marks the video with a security hash value, which is used to verify that the video has not been tampered with. (17) Similarly, the FirstVu HD BWC from Digital Ally offers optional software that logs each use of the video and generates a chain-of-custody report. (18) Ideally, BWC recording systems should capture the device serial number, user identification, device events (turning on and off), the time at which any BWC recording is viewed on the system, the user viewing the recording, the duration of view, and log any instances of copying, tagging or sharing. (19)

* Police Review Restrictions and Redaction: Police officers and those with access to BWC recordings will typically be able to produce copies of original BWC recordings as needed for analysis or redaction purposes, leaving the original recording unaltered. In certain jurisdictions, police departments designate specified personnel as the only individuals with access to BWC recordings and copying privileges. (20) Prosecutors should take steps to understand their law enforcement agency's system for documenting who, when, and why a BWC recording is accessed or copied.

* Audit Trail for Prosecutors and Defense Attorneys: Some BWC systems allow the police to verify whether a prosecutor has viewed a recording. Similarly, the system may be configured to permit the prosecutor to verify whether a defense attorney has viewed the recording. Prosecutors must take care not to use the audit trail as a method to uncover a defense strategy; for example, an audit trail may show the defense viewing one recording repeatedly, thus revealing an interest in a file that may be relevant to a particular defense.

* Integration with Dispatch, Records Management and Dash Camera System: Technology has evolved that integrates recording and data produced by BWC systems with pre-existing police dispatch, event records management and dashboard camera systems. These technologies embed the BWC recording with an incident number from a dispatcher, and link the corresponding BWC recording with the department's records management system, along with any dashboard camera footage. When implemented effectively, these capabilities can improve the ability to locate relevant recordings, and may reduce the need to manually tag a file as a relevant recording. (21)

* Search Capability: Although some systems can search for recordings, this feature is dependent on the data and tagging associated with recordings. A robust search function will ease the task of identifying BWC recordings. Ideally, the recordings should be able to be searched by officer...