Body cameras only part of the solution

Let’s not overlook how footage is used at trials, write Patrick G. Watson and Carmen Nave.

As the world reels from witnessing the death of George Floyd, Canadians have simultaneously been confronted with disastrous wellness checks resulting in the deaths of D’andre Campbell, Regis Korchinski-paquet and Chantel Moore.

The video footage that led to the arrest of George Floyd’s assailant contrasts the ongoing unanswered questions about Canadian cases. With our ability to investigate these cases largely limited to witness testimony — which is often police testimony — body-worn cameras have emerged as a popular suggestion to deliver accountability.

Recently, Mayor Valérie Plante changed her stance on body cameras, saying the city is now open to equipping Montreal Police with the devices. Prime Minister Justin Trudeau expressed support of cameras for the RCMP, and Commissioner Brenda Lucki responded by outfitting some Mounties. Across Canada, elected officials are recommending other communities follow suit.

But how effective are bodyworn cameras at delivering police accountability? After examining how footage gets used at trials, we think those hoping for increased accountability may be left unsatisfied.

One of the first “viral videos” of police violence was the 1991 beating of Rodney King. Four officers of the LAPD were acquitted at criminal trial in a California State court. A year later, the four officers were tried for civil rights violations in federal court, this time leading to two convictions.

The trials relied on the same video evidence to present the case. What made the difference was testimony: At the criminal trial, the defence used an “expert witness,” LAPD trainer Sgt. Charles Duke, who was — despite a glaring conflict of interest — permitted to use slow motion video and stills to opine that the officers interpreted King’s various movements on the ground as provocations.

The prosecution believed the brutality was self-evident from video evidence, but the jury sided with the expert witness. In the subsequent federal trial the prosecution also brought an expert witness to explain video evidence to jurors.

The use of expert witnesses is now commonplace in criminal trials for police officers accused of brutality. In part, this is to help the jury apply the “reasonable officer standard” that is used to determine whether force was excessive. We have found that defence lawyers are able, like in the King case, to use slow motion video and stills as props that support extended discussions of procedure and decision making, using minute details from the video to construct sequences of testimony that expound on the rational decision-making process that the officer went through while interpreting the situation.

Such extended examinations are allowed in part because the world of policing is treated as being so distinct, and the way police are trained to view and respond to violent threats so far removed from laypersons’ lives, that ordinary people would not be able to evaluate an officer’s actions without first being educated in how a “reasonable officer” thinks and behaves. This “education” is delivered in testimony by expert witnesses, fellow officer witnesses, and the defendant, with video taking the role of visual teaching aid.

Body cameras offer attractive advantages. Video evidence would almost certainly have helped us make sense of the deaths of Korchinski-paquet, Campbell and Moore. However, video cannot deliver accountability on its own. Police officers like James Forcillo, Michael Slager, Betty Jo Shelby, Jeronimo Yanez, Philip Brailsford and Ray Tensing have been acquitted of murder at trial, despite — or sometimes with the help of — video evidence.

While body cameras are a start, revisiting the way a “reasonable officer test” is administered, and empowering jurors to make their own decisions about police use-offorce by prohibiting the practice of introducing partisan police expert witnesses, will go much farther in returning control of the police back to the population who consents to their authority.