Big win from SCOTUS: Warrant required to search cell phones

It isn’t often that I feel warm and fuzzy toward all nine members of SCOTUS. Today is one of those days. I’ve written several times about the pending cell phone search cases, Riley and Wurie, and have expressed hope that SCOTUS would issue a clear decision that a warrant is required to search a cell phone. Today, SCOTUS issued that decision (here is the Riley decision). The decision was unanimous, written by Chief Justice John Roberts.

For years, police officers in California have been searching electronic devices incident to arrest—first pagers, then flip phones, now smartphones. Officers have been reviewing all the data “incident to arrest,” even after contacting a person for a minor offense. Phones are easily unlocked, passcodes easily defeated. Jaywalking cases turn into strike felony cases. Minor diving offenses lead to officers connecting a seized cell phone to a Cellbrite machine and downloading the entire contents: every contact, text, and photo. Along with a few text messages that may suggest a drug transaction, now the discovery I receive often includes a stack of disks containing the full phone download of every intimate photo, email from a doctor, banking passcodes stored in contacts, and lovers’ quarrels by text message.

This is what happened to David Riley. He was stopped for driving with expired car registration. After searching his car and his cell phone, he was linked (by cell phone data) to a prior gang shooting, and was convicted of attempted murder and sentenced to fifteen years in prison. Some say that’s good police work. Others say they don’t want police looking so easily at the last symptom searched on WebMD.

In favor of the searches, the government argued that cell phone searches fall into the warrant exception designed to protect officers (by permitting searches for weapons) or the exception to avoid destruction of evidence (such as flushing drugs). SCOTUS rejected these arguments, reasoning that phones can be checked externally, without accessing any data, to verify that they are not weapons, and that use of a Faraday bag or removal of the battery can prevent remotely wiping a phone. (As others like Noah Feldman have mentioned, it’s time to invest in Faraday bags.) The government argued that cell phones should be treated like wallets or purses. Chief Justice Roberts rejected the comparison, writing, “That is like saying a ride on horseback is not materially indistinguishable from a flight to the moon.”

As SCOTUS acknowledged, this recognition of the Fourth Amendment will make law enforcement more difficult. Roberts wrote: “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”

However, phones can still be searched. If officers can articulate probable cause to search a phone, they can seek a warrant and search it. Roberts wrote, “[T]he Court’s holding is not that the information on a cellphone is immune from search; it is that a warrant is generally required before a search.”

The great Jeffrey Fisher (who successfully re-invigorated the Confrontation Clause by arguing Crawford and Melendez-Diaz) has worked his magic again. Here is the link to video of Fisher and California Solicitor General Ed DuMont (who argued the cases against Fisher) outlining their arguments.

“Remember, the Fourth Amendment says that the police and government agents cannot engage in any unreasonable searches, and expresses a preference for obtaining warrants before engaging in any search,” Fisher said. “Mr. Riley argued that the search of his cellphone, therefore, was unreasonable because it unduly invaded his privacy without obtaining a warrant.” Fisher’s argument prevailed in today’s SCOTUS decision.

How do I join the Jeffrey Fisher fan club? I want a bobblehead doll.

Some of today’s coverage of Riley is here:

New York Times: “Supreme Court Says Phones Can’t Be Searched Without a Warrant,” By Adam Liptak

Mother Jones, “Supreme Court to Cops Who Want to Search Your Cellphone: Get a Warrant,” By Dana Liebelson

National Law Journal, Legal Times: “Justices Endorse Privacy in Cellphone Search Cases,” Mike Scarcella

BloombergView: “Justices Don’t Want Their Smartphones Searched,” By Noah Feldman

ACLU: “Supreme Court Requires Warrant for Cell Phone Searches by Police.”

NACDL: “The Fourth Amendment Lives Another Day: A Win for Digital Privacy in the U.S. Supreme Court.”

What is the error rate of the criminal justice system?

I’ve been thinking about this error rate question a great deal since attending the Innocence Network conference in Portland, Oregon a few weeks ago (April 11th and 12th).

As a trial level public defender, one constant challenge is seeking to dispel misperceptions of jurors about the accuracy and reliability of the criminal trial process. Many jurors walk into the courtroom with beliefs that the police usually arrest the right person, the prosecutor will be able to prove the charges, police officers who testify will be truthful and accurate, and evidence introduced by “forensic science experts” is the result of rigorous, reliable scientific method. Of course, prosecutors and judges, who participate in the plea negotations that resolve most cases, share many of these sentiments (interesting recent discussion of judges’ bias toward believing cops is here and here).

But how true are these beliefs? Far too often, not very true. How well is the machinery of the criminal justice system working to produce accurate results? How often are people convicted of crimes that they did not commit?

Wrongful conviction errors come in two main categories: innocent people who plead guilty (this happens a lot, as discussed here), and innocent people who go to trial and are [falsely] convicted. Some of the people who have been falsely convicted have been subsequently exonerated. The exoneration cases are irrefutable evidence of errors in the criminal justice system. The systemic causes of error are being studied in order to advocate for reforms that will reduce this error rate.

How widespread are these errors? One speaker at the Innocence Network conference spoke of false conviction rate estimations ranging between 2% and 20% of criminal convictions, from a variety of studies using a variety of methodologies. This is a very important number to try to pin down with further study.

On April 28th, a study was published in the prestigious Proceedings of the National Academy of Sciences concluding that the error rate in death penalty cases is 4.1% (“The Rate of False Conviction of Criminal Defendants Who are Sentenced to Death” published 4/28/14). Samuel Gross, one author of the study, explained the significance of this number: “Since 1973, nearly 8,500 defendants have been sentenced to death in the United States, and 138 of them have been exonerated. Our study means that more than 200 additional innocent defendants have been sentenced to death in that period.” Many innocent people remain on death row. (See discussion here.)

One day after the death penalty error rate study was published, the botched execution of Clayton Lockett in Oklahoma on April 29th
reignited debate on the death penalty and focused attention on the fact that 3% of executions are botched, most often using lethal injection. The botched execution in Oklahoma followed a politicized process that had bullied the state supreme court and shielded secret execution processes from scrutiny. Oklahoma Governor Mary Fallin, who prevented scrutiny and delay prior to the execution, is now calling for an independent review of execution procedures. The Oklahoma execution was shocking, inhumane and cruel. (Coverage here
and here.)

It is fascinating to speak with jurors about how the presumption of innocence and the requirement of proof beyond a reasonable doubt are intended to reduce the number of wrongful convictions. I often ask jurors what they think of Blackstone’s principle: “It is better that ten guilty persons escape than that one innocent suffer.” When I ask jurors if they believe false convictions occur, some are openly skeptical. It does happen, more often than many people would like to admit.

As the events of this week have highlighted, there is an error rate in the criminal justice system. It is significant and irrefutable, and it can be reduced. Acknowledgement and study of these errors will propel reform and improve accuracy in the criminal justice system.

SCOTUS argument on warrantless cell phone searches today

On Halloween weekend 2011, I heard Justices Breyer and Souter speak at a luncheon. Souter spoke about his resistance to technology. He described using pen and paper to draft opinions and recounted how a person had recently shown him an iPad set up to replay a Court argument. When Souter was done listening, he didn’t know how to turn it off, so he just stuck the thing, still talking, in a closet and closed the door.

Souter is no longer on the Court, but this is a tiny window into the technological savvy of the folks who will decide whether warrantless searches of cell phones are constitutional. It has been observed that some of the justices are more tech savvy than others. As Stephen Wermiel wrote here, “The Court is sometimes befuddled by what to make of different forms of technology, either as to how devices actually work or as to how to fit technology into particular legal doctrines, or both.” I wonder if the justices are among the 91% of Americans who own a cell phone. Do they email and text via phone, or receive electronic correspondence from doctors or banks? How deeply do they grasp how much private information flows through these devices?

For the first time, based on the arguments made today, SCOTUS will evaluate whether the 4th Amendment prohibits warrantless searches of cell phones incident to arrest. Two cases are before the Court. In the California case, Riley, the prior court said warrantless search incident to arrest was permissible. In the Massachusetts case, Wurie, the First Circuit said a warrant was required. (More background is included in my prior posts on this topic.)

The best summary of the facts of the California case is here in Amy Howe’s plain English summary, which relies brilliantly on the writing style of a well known children’s book:

“It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition. The storyline goes something like this: If you are driving a car with expired tags, the police might pull you over. If they do, they will ask to see your driver’s license. When you give it to them, they will run a computer check and learn that it has been suspended. So they decide to impound the car. But before they tow the car away, they search it. When they search it, they discover two handguns under the hood, so they arrest you. When they arrest you, they take your smart phone. When they take your smart phone, they read your text messages. When they read the messages, they see texts which suggest that you might be a member of a local gang. Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.”

“At your trial, you ask the judge to bar the prosecutors from introducing the evidence obtained from your phone. But the judge rejects that request, ruling that the police could search your phone as part of the process of arresting you – a rule known as a “search incident to arrest.” So the evidence from your phone comes in at your trial, and – even though none of the four eyewitnesses that the prosecutors call can identify you as one of the shooters – you are convicted of attempted murder and assault with a semi-automatic firearm. And because of the evidence linking you to a gang, the seven-year sentence that you would have gotten is increased to fifteen years to life.”

In arguing to justify warrantless searches, the government asserts that phones should be subject to search incident to arrest because phones are “particularly likely to contain evidence of wrongdoing” and can be remotely wiped clean. Riley and Wurie counter that a seized phone can be held securely in a faraday bag (fun new word: “faraday bag”) that would prevent wireless communications unless and until a warrant is secured.

Think about the texts, emails, photos, contacts and calendar in your phone. While most of us don’t have a phone filled with “evidence of wrongdoing,” we have abundant personal information stockpiled there. The ability to rummage around in photos, calendars and contacts to investigate and see if anything incriminating turns up is exactly what police want. It is what police routinely do in California under the current state of the law. However, it is also precisely what the Fourth Amendment prohibits. Hopefully SCOTUS will adopt a bright line prohibition on warrantless cell phone searches.

(The link to follow the Riley case is here, with links to the many comprehensive briefs filed on this issue. The link to follow the Wurie case is here. More information is here and here.)

(Now that the arguments have been heard (transcript is here), the predicting begins.)

Rule for everyone everywhere: Wear what you want.

People have been chiming in lately about how women lawyers should dress, and how to talk about how women lawyers dress, which has been fascinating and irritating.

In case you missed it, Loyola Law School drew criticism for advising female law students to skip cleavage and stilettos at their externships (memo excerpts here).  Slate made fun of Loyola’s condescending memo. Then, District of Nebraska Senior Judge Kopf responded with a cheeky post titled, “On being a dirty old man and how young women lawyers dress.”  I love reading Judge Kopf’s posts, especially when I disagree with him. I like that he swears, he shares personal stories, he reflects and reconsiders things (his exchange with Shon Hopwood remains my favorite example) and he sometimes apologizes. He offered three rules “young women lawyers should follow when considering how to dress for court,” including calling men “pigs and prudes” and advising women against dressing so slutty that the clerks start chattering about it. He also said he really admired the view when it included cleavage and short skirts. For the many people who thought Ewwww! Erin Grace responded with a critique and Judge Kopf apologized (sort of) for objectifying women. Meanwhile, Scott Greenfield first expressed shock at Kopf but ultimately came to his defense. Many others chimed in, often displaying a very irritating eagerness to work the word “slut” into the conversation. 

Rule for interviews: wear what you want (but be informed because there is a uniform)

Tamara Tabo wrote the best post on this topic on Above the Law, stating directly and correctly “there is a uniform of professional attire.”

As a law student entering the profession, it would be inexcusably lazy to fail to learn the basic components of the expected uniform. What I recall of being a law student new to the experience of dressing for interviews was that the suited world seemed foreign and overwhelming. I was from a rural hippie town; I’d never seen anyone dress in a suit for work. I gratefully relied on employees at Talbots and Coach to help me select a very conservative first uniform. My law school experience is now twenty years stale and I would expect this information would be readily available in the internet age, but a friend currently attending a Southern California law school recently described to me– with some shock and dismay– that students were going to job interviews with swimsuit ties showing at the backs of their necks. Laziness? Statement? Uninformed? How’s an employer to know?

Again, Tabo is right: be informed about the uniform and then decide whether to accept, modify or reject it. Rejecting it, especially at an interview or internship specifically for the purpose of making an impression, has a consequence. If a person dresses in a way that seems extremely attention seeking, it comes across as disingenuous or foolish to then become indignant about drawing attention. Are you trying to make a point or trying to get a job? If your first priority is individual expression, some work environments may not share the value you place on personal creativity. If your outfit screams out “fuck you and your senseless rules,” people will hear it. If you go to an interview with swim top ties peeking out from your blazer, your prospective boss may wonder if your first priority is to maximize your beach time.

I still wear a conservative suit to any interview, professional appearance or meeting with any other agency or department. As Tabo says, it’s the uniform. As she writes, “Uniforms cover up distracting superficial individual differences, so that character, intellect, and skill get the attention. ‘Boring’ is a feature, not a bug.” That said, I believe there is a fair bit of leeway for anyone who projects professionalism; one of the best interns I’ve ever had wore the same inexpensive slacks and sweater every work day and no one cared a bit because her work was strong and she was professional.

Rule for the legal workplace: wear what you want.

Once on the job, there may be different expectations and they may be situational. In my years as a  PD, I’ve worn everything from expensive suits to the flowy maternity equivalent of pajamas made for the office. But, mostly I wear the tried and true uniform: a plain suit. I hate suits. I’d never be caught in one outside work. From my first summer job at the Public Defender Service in DC in 1991, I loved that the attorneys came to work in jeans and tie dye shirts, but put on their game faces and suits to charge into court. Putting on the uniform is part of the whole superhero act. It’s exciting, important, fun stuff we get to do and we suit up for it. 

Rule for jury trials: wear what you want (but never lie or be fake to jurors).

Whatever liberties I may take on days filled with jail interviews, I fully embrace the uniform for jury trials. I put on my game face and my sharpest suit. I suffer the pantyhose and the beautiful uncomfortable shoes. I care intensely what jurors think; my goal is to persuade them. They expect and prefer the uniform, so I wear my best uniform.

What about going that extra mile for persuasion? I’ve seen unmarried lawyers put on rings that look like wedding bands for trial because they believe jurors will find them more credible. I’ve opposed a prosecutor who always placed a mug with a photo of her children and the caption “#1 Mom” facing the jury. After 9/11, I watched many lawyers suddenly start wearing flag lapel pins. In response to Judge Kopf’s post, Mark Bennett suggested showing a little cleavage to jurors “for the good of the client.” That’s not for me. I actually bought one of those flag pins at Long’s after 9/11, but I never wore it because I felt self-conscious about it. I wouldn’t do any of the things in this paragraph because it would make me feel fake and weird. Figure out where your own comfort zone is, but don’t be fake to jurors. Ever.

I’ve seen plenty of great lawyers reject the uniform, especially down the road after some conservative buttoned up early years. One thing I love about public defenders is the culture of unconventional personalities. I’ve seen lawyers dazzle jurors and win huge cases while wearing clothes that are frumpy, or revealing, or have acres of crazy loud patterns, or are worn to absolute tatters. There are brilliant attorneys out there in orthopedic shoes and sneakers and cowboy boots.

So, be informed and thoughtful and authentic about it. But wear what you want.

Reflections on 2013, Optimism for 2014

In contrast to my usual weary New Year’s Eve wish to get this year over with and start fresh pronto, I’m feeling optimism for 2014. It’s not just that our bees seem to be surviving the winter and that our pantry is stocked with the fruits of my fall canning efforts. I’m actually feeling optimistic about the criminal justice system.

Aside from the typically bombastic moments of winning and losing big trials, a few of my cases were quietly hopeful this year. For example, a few years ago I caught a case in which my client was caught on video robbing a bank. The video played on the news and his mom turned him in. Ouch. To add insult to injury, the DA was adamant about charging a prior bank robbery two different ways, each adding five years. We went back and forth trying to get ten years instead of fifteen. Out of options, we went to trial. After trial, a compassionate sentencing judge reluctantly and apprehensively let that client go to long term residential treatment instead of prison. Recently, I stood next to him in front of that judge as he thanked her and glowed with pride that he is a sober, employed, contributing member of society.

Another example. Six years ago I had a simple little case of possessing a stolen van, complicated by eleven strike priors, all committed long, long ago on a short but eventful youthful bender. It’s another example of a case that went to trial after plea negotiations bottomed out. Life: that was the offer. After trial, that was the sentence.  Then the California voters changed the Three Strikes law to require that the third “strike” be a strike offense, not just any felony. I petitioned for discretionary re-sentencing and had the surreal experience of getting to repeat a sentencing hearing under a new and more favorable law. In a few months, that client will be released.  I expect to drive out to the prison and give him a ride to a residential treatment program.

Perhaps these cases are examples of the pendulum finally swinging away from the lunatic idea that incarceration is the one-size-fits-all solution to all criminal justice challenges. Suddenly everyone is noticing the over incarceration crisis. AG  Holder is talking about it, saying “we cannot simply prosecute or incarcerate our way to becoming a safer nation”  and “too many Americans go to too many prisons for far too long, and for no good law enforcement reason.” Even Sesame Street is talking about it. The time is right to wake the hell up and admit that locking people up is not the answer. While we’re at it, let’s finally admit that cops, lawyers and prison guards should not be the primary providers of mental health care.  Oh, and let’s have a real discussion about addiction and poverty.

I don’t think this is fantastical. There is cause for optimism in the ongoing examination of racial bias in the justice system (just a few examples here, here , here), including Presidant Obama finally saying “African American young men are disproportionately involved in the criminal justice system.” These discussions propel progress. There is cause for optimism in the decline in support for capital punishment.

Much has been written about 2013 being the fiftieth anniversary of the Supreme Court decision in Gideon v. Wainright, guaranteeing each person accused of a crime the right to appointed counsel (watch this cool film retelling the Gideon case). Many decades after Justice Hugo Black declared “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has,” where are we on equal justice? At this 50 year mark, many stopped to take a good look at the plight of public defenders (see Gideon at 50  and panel with Steve Bright here and great charts in Mother Jones here).  Today the public defender system is in crisis in many places. The numbers are staggering. Each year in the United States, over 12 million people are arrested. Eighty percent of the individuals that make their way through the criminal justice system are represented by one of only 15,000 public defenders. In reponse to this crisis, PD offices are fighting and winning battles over budget and caseload.

One of the events of 2013 that makes me most hopeful for the future is becoming involved with the organization Gideon’s Promise. A few years ago, at a DC event honoring the amazing Steve Bright (of SCHR), my law school classmate William Montross told me there was a group training PDs in the South, and I should get involved. I went to Atlanta last summer as a participant in the Gideon’s Promise Trainer Development Program, which teaches the curriculum as well as strategies for effectively mentoring public defenders. I believe this program is among the strongest in the nation for training and supporting new public defenders to be zealous, ethical and compassionate defenders.  I’m thrilled that our office has been accepted as a Gideon Nation partner office and will work closely with Gideon’s Promise in the coming year.

The dedication of the Gideon’s Promise community is depicted in the acclaimed documentary Gideon’s Army. This film follows three public defenders in the south, all of whom face seemingly insurmountable odds as they help indigent clients through the criminal justice process. We’ll be screening the film in Sonoma County on January 15 and tickets can be reserved here:

Gideon’s Army tickets! ($11) 

Between Gideon’s Promise, embracing social media, and participating in a nationwide effort to challenge unreliable forensic evidence, I feel newly connected to a community of public defenders that is fighting for fairness in the criminal justice system. All around me I see the dedication that sparked my superhero admiration for the attorneys I assisted as a student investigator at PDS those many years ago, which inspired me to go to law school to be a PD. In today’s public defender community, people like Andre Vitale are pushing back against budget cuts and excessive caseloads, writing on the new NAPD site yesterday: “without public defenders who receive equal treatment and are provided the same resources as the prosecution, the criminal justice system becomes a system of injustice.”  In 2013, Jimmy Carter said that criminal justice reform is “this generation’s civil rights movement.”

I get that it’s not all rosy out there. The NSA has turned all our lives into one big peepshow and SCOTUS seems ok with tossing all of our DNA into the database and so on. But it’s worth noting that if you make a dumbass move like Matthew Yglesias did here, thinking that public defenders are low hanging fruit, you will be quickly reminded that PDs don’t take that crap. (Of the many replies, this by JJC was my favorite smack down.)  PDs don’t take that crap from journalists or judges or prosecutors or those who set budgets or policy. So I’m optimistic and let’s fight on in 2014.

Body Worn Cameras for (and against) Police Officers

For the first time this month, I viewed evidence in the form of a video recorded by a police officer’s body worn camera (BWC).  In addition to dashboard cameras mounted in some patrol cars, some officers now wear small video cameras. The recordings can be downloaded directly to a computerized storage and indexing system, preferably without permitting tampering or editing. Reviewing the video confirmed my prior opinion that I am in favor of officers wearing BWCs to record their investigative contacts and arrests.

This technology has been anticipated and gradually adopted over several years. In 2009, San Jose was the first department to use ear mounted cameras.   In 2010, David Harris (of the blog Failed Evidence which has covered BWCs several times), wrote that a new technology had emerged “with the potential to increase police compliance with the law,” and that field tests in Britain had shown “that the devices were a uniquely effective bulwark against false complaints.”

Today Phoenix, Seattle, Oakland, Salt Lake City, and Albuquerque are exploring use of BWCs. Locally, police department in Cotati and Sebastopol are using cameras and it is coming soon to Santa Rosa.

My own BWC video review experience illustrates three strengths of the evidence: completeness, accuracy and context.  First, completeness: There was a three page police report describing the arrest about which I also viewed the video. The report would have required perhaps fifty pages to capture the information on the tape.  It’s simply not feasible for written police reports to capture each and every exact phrase spoken by every person contacted. The video grabs all that, passively, without consuming the officers’ time. Second, accuracy: with the video, there is no room for squabbling over who said what.  I immediately recognized an error in the written report: a statement attributed to my client was inaccurate. On the video it was clear that several people were talking at one time and easy to understand the error, and also possible to replay the video to hear the accurate statement.  Third, context/demeanor: paper police reports are notoriously tone-deaf. Every word is translated into “cop speak,” everyone “exits the vehicle.”  The video captures tone and context. The video I viewed recorded many impatient statements of a frustrated cranky officer that put other people’s responses in context.  Having an objective record of this information is invaluable.

As they are being used more widely, the debate about BWCs has heated up, particularly in New York. Those following the stop and frisk litigation there will recall that Judge Scheindlin’s original order (Floyd v. City of New York. Aug. 12, 2013) mandated the use of BWCs in pilot programs in some precincts. Judge Scheindlin wrote that the cameras could provide “a contemporaneous, objective record of stop-and-frisks” that might “either confirm or refute the belief of some minorities that they may have been stopped simply as a result of their race, or based on the clothes they wore, such as baggy pants or a hoodie.” (Ultimately, the second circuit jumped in and pulled the case away from Judge Scheindlin for dubious reasons that have been sharply criticized by some very respectable folks.)

In the era of NSA surveillance of, well, everything, one irony in this debate has been the resistance of some in law enforcement to wearing cameras. (see discussion here and here) Officers resistant to the idea of “policing the police” have opposed the cameras or asked that their use be optional. I’ve been asking around to see what the officers I encounter in court think of BWCs. My very informal poll of officers reveals the following: those I tend to respect as even-handed and even-tempered support the cameras and say “I got nothing to hide.” Others seem offended by anyone scrutinizing their conduct, pause to call the ACLU names, and oppose the cameras. There were several jokes about posting “idiots” on tape on YouTube, so privacy concerns are not unwarranted (the ACLU has proposed guidelines for use here).

Controlled studies support use of the cameras. For example, during a pilot program in Rialto, CA, during which some officers responding to calls from February 2012 to February 2013 wore BWCs, the use of cameras reduced both officer use of violence and complaints against the department. As Mike Riggs wrote in the The Atlantic: “As Rialto officers demonstrated, the presence of cameras actually improves police performance, and that improvement was reflected in a drastic reduction in complaints. It’s easy to imagine how these cameras could help law enforcement agencies find and discipline bad apples in their own ranks, while protecting good officers from career-ruining lawsuits and disciplinary actions.”

The ACLU weighed the privacy concerns and, with some suggestions, supports use of the camera:  “Although we generally take a dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers. Historically, there was no documentary evidence of most encounters between police officers and the public, and due to the volatile nature of those encounters, this often resulted in radically divergent accounts of incidents. Cameras have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse.”

While BWCs are new, I’ve been reviewing other types of recordings with clients for years. Interestingly, I cannot recall a single client ever saying that the store or bank had no right to record them committing a robbery or a shoplift. The same is true of clients captured on dash cams resisting: they accept the video evidence, especially if they were snockered and don’t clearly recall the event. The availability of a video creates an objective piece of evidence that is easy to evaluate and generally accepted. Client meetings that include review of recordings are generally very productive. I am a supporter of “cut through the crap” evidence like audio and video recordings (which rarely match the police report summaries). More and more, it’s my clients who are clamoring for body cam or dash cam recordings when they dispute resisting arrest or complain that officers behaved inappropriately.

For all these reasons I would like to see BWCs used widely.