Prosecutor-Specific Considerations.

• Author: Hamann, Kristine
• Position: Body-Worn Cameras, part 2

POLICE-PROSECUTOR COORDINATION ON BWC ISSUES

BWC Policies

Prosecutors should be familiar with their police department's BWC policies. Ideally, the prosecutor and the police department will collaborate on the development of the policy. Even if prosecutors were not involved in the initial policy development, BWC policies frequently evolve and change, so prosecutors will likely have the opportunity to have input on later iterations of the policy. The most common approach taken by police departments is that officers must make every reasonable effort to activate the BWC prior to taking law enforcement action. (83) Officers may have discretion to stop recording, if necessary, for their own safety, the safety of others, or if the officer believes that recording the interaction could thwart the law enforcement purpose (e.g., interviewing a victim of a sex crime who would rather not be recorded). For prosecutors, significant aspects of a police departments BWC policy include: (84)

* Mandatory Recording: In connection with its grant program, the Department of Justice (85) mandates a policy that requires officers outfitted with BWCs to activate them in all law enforcement encounters with civilians, (86) and to record until the conclusion of the incident. (87) This is typical of many police department BWC programs. A "law enforcement encounter" requiring an officer to activate a BWC is usually described as follows:

** Any enforcement-oriented or investigative encounters, including traffic and Terry stops and vehicle and foot pursuits;

** Consent searches and execution of search warrants or arrest warrants;

** Statements of suspects in the field; and,

** Non-enforcement contacts that become confrontational, assaultive, or enforcement-oriented. (88)

* Discretionary Recording: Some jurisdictions recommend that officers be given the discretion to decide whether to record various non-mandatory incidents or interactions involving witness statements, as well as nonenforcement events when an audio/video record could have value as evidence. Conversely, some policies give officers the discretion not to record mandatory incidents when it would thwart a law enforcement purpose. (89)

* Crime Scenes: Some police departments utilize BWCs to record evidence located at designated crime scenes, both as videos and as photographs. In these circumstances, responding officers should coordinate these recordings and any documentation with the department's official crime scene unit.

* Suspect and Witness Statements: Officers may use the BWC to record suspect and witness statements. Prosecutors should understand if, and how, police departments are utilizing BWCs to record suspect and witness statements, and seek input regarding protocols governing these recordings.

* Prohibited Recordings: Importantly, most police departments prohibit the recording of certain subjects, such as undercover police officers and conversations with fellow police officers. Other policies restrict use of BWCs in certain places, such as bathrooms and locker rooms. (90)

* Automatic Recordings: Some police departments are considering using technology that automatically activates recording, thereby removing officer discretion altogether. For example, the camera could potentially be activated when the door to the police car is opened, (91) when the officer removes a gun from its holster, or when the officer drives into a certain sector of the precinct. This technology is much like the systems used in the "dash-cam" cameras affixed to police cars, which are activated when the police siren is turned on.

* Incorrect Recordings: A police department should have protocols for how to delete recordings made inadvertently. For example, if the officer mistakenly records while in the bathroom, there should be a process for deleting the recording.

Notice and Consent

Some BWC policies address whether an officer should provide notice that they are recording and whether to seek consent from the person being recorded.

* Consent to Record: Some state laws require a police officer to not only notify a person of the recording but also to obtain consent from the civilian before recording an encounter. The obligation for a police officer to obtain consent from an individual to record arises from applicable eavesdropping and audio recording statutes, as well as departmental policies. Laws in "two-party consent states" (including Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington) may require that all parties consent before a BWC recording may lawfully occur. (92) Laws in some of these states, however, apply only to telephone calls, (93) and the laws of five of these states also include exceptions for (a) law enforcement officials conducting official business, and/or (b) for communications for which there is no expectation of privacy. (94) Furthermore, some states have exempted BWC recordings from these laws, while other jurisdictions are pursuing exemptions as well. (95)

* Notice of Recording to Person Being Recorded: The requirement for a police officer to provide notice to civilians when recording an encounter using a BWC is dictated both by departmental policy, as well as state eavesdropping and related recording laws. In a state where the subject of a recording must consent to the recording, the officer must provide notice that recording is taking place and obtain consent to the recording. In states where consent is not required, police department policies vary as to whether officers must provide notice to civilians that their BWC is recording. Some police believe that providing notice of recording can assist to de-escalate a tense citizen encounter (96) and may "improve behavior from all parties" involved, both police and citizen. (97)

Privacy Concerns and Concerns for Victims and Witnesses

Most BWC policies state that officers should not be required to notify or obtain consent for recording a person, provided that the recording is in a public place or if the officer is lawfully present in a private location, for a law enforcement purpose. (98)

* Private Residence: If the officer is lawfully present in a private residence because, for example, the entry is based on a search warrant or exigent circumstances, the dwelling should not be treated any differently than other locations for purposes of recording. (99) However, if the officer only enters the premises with consent of the homeowner, then the homeowner may refuse consent to recording in the home as a condition of allowing the officer in the home. (100)

* Other Private Places: Some BWC policies restrict use of BWCs in certain places such as bathrooms and locker rooms. (101) However, some police departments address the privacy concerns of recording in such places by allowing the recording if it is part of a lawful law enforcement encounter, with the proviso that it can be redacted if the recording is required to be released publically. (102) Some policies give an officer the discretion to turn off the recording in private places, if the officer believes that the recording will thwart the law enforcement purpose. For example, if a sex crime victim is interviewed in a bathroom and will not speak unless the recording is turned off, the officer should have the discretion to turn off the BWC. It is important for the officer to describe on camera why the recording was turned off as this will minimize attempts by the defense to argue police misconduct.

* Concerns for Victims and Witnesses: (103) As police respond to a crime scene, BWCs will inevitably record sensitive footage of victims, sometimes at an extremely vulnerable point in their lives. While such recordings are authorized by most BWC policies as part of a law enforcement encounter and can provide excellent evidence of the victim's initial statements and injuries, they raise many significant concerns. The recording may capture identifying information about the victim, conversations with a victim's advocate, discussions of safety planning, or sensitive medical information that should not be released. (104) To assure the victim's safety and privacy, the prosecutor will often need to redact the recordings, seek a protective order, or both. If the victim requests not to be recorded, a BWC policy may give an officer the discretion to turn off the recording when recording would thwart a law enforcement purpose. For example, if the witness refuses to speak to the officer unless the camera is turned off, the officer may stop the recording in order to continue the investigation. If the recording is terminated, the officer should first state the reason for ending the recording.

* Health Insurance Portability and Accountability Act ("HIPAA") Privacy Rules: Although HIPAA only applies to "covered entities" (105) such as hospitals or healthcare providers, or "business associates" of such entities as defined under the law, some police departments similarly restrict recording in hospitals and medical facilities.""' However, most departmental policies state that if the there are any valid HIPAA or privacy concerns, the recording may be redacted before it is released publically or in court. The use or disclosure of HIPAA-protected health information is permitted in response to a court order, subpoena, or summons from the court, a grand jury subpoena, or an administrative request authorized under law. (107) Ultimately, officers must be mindful of their presence in a healthcare facility during investigations to prevent the unintentional recording of protected health information of other medical patients outside the scope of the stated law enforcement purpose.

Ownership of BWC Recordings

Generally, the police department that has outfitted its officers with BWCs owns the BWC recordings. However, departments may purchase proprietary systems from private companies to store and review BWC recordings. (108) In such circumstances...