A man in Martinsville in 2017 was stopped by police while driving his own vehicle, which was found to have drugs, guns and money inside. He was acquitted earlier this month. One of the possible reasons cited by prosecutors: The video captured by the body camera of the officer who made the traffic stop and the arrest hadn’t been preserved in a manner that it could be used in court years later.
How critical visual evidence was not preserved, either by accident, by error or by a porous process, raised questions about how law enforcement agencies capture and retain video from body cameras worn by the men and women patrolling the street and how this footage is used in prosecuting cases.
In Henry and Patrick counties and Martinsville, more than 100 body cameras are used by officers, but there is no state-mandated law or even a mutually adopted policy to specify how all of that footage is managed, even as state law has specified that more prosecutors be hired to deal with the volume of evidence created by the cameras.
There are guidelines in a “model policy” distributed by the Virginia Department of Criminal Justice Services that address privacy issues created by the video and restricted-usage protections, but that policy has been criticized by the Virginia chapter of the American Civil Liberties Union as possibly being unfair to citizens.
The policies for body-worn cameras of the Henry County and Patrick County sheriff’s offices do not include as many specific privacy and restricted-use protections as that DCJS’s policy, but the Martinsville Police Department’s policy is almost identical.
But, speaking generally about the Henry County, Martinsville and Patrick County law enforcement policies on body-worn cameras – not just the privacy and restricted-use protections aspect – several law enforcement officials, two commonwealth’s attorneys, a deputy public defender and a private lawyer expressed support for the local policies or support for using body cameras.
Henry County Commonwealth’s Attorney Andrew Nester said the decision about whether to use body-worn cameras at this time is determined by a county, city or town and is not required by the state.
And generally the DCJS model policy includes provisions on purpose and procedures, including use of body-worn cameras generally, equipment, officer/duty responsibility, supervisor responsibility, privacy and restricted use, access and video retention.
It also specifies policies for privacy and restricted use, elements that have come under question by the Virginia chapter of the American Civil Liberties Union:
- Whenever practical officers/deputies shall inform individuals they are being recorded.
- In locations, where individuals have a reasonable expectation of privacy, such as a residence, individuals may decline to be recorded unless the recording is being made pursuant to an investigation, arrest or search of the residence or individuals within the residence.
- Body-worn cameras are not to be used in communications with other law enforcement personnel without permission of the office of chief of police/sheriff or a designee; communications involving law enforcement tactical and strategic policy, procedures or plans; encounters with undercover officers/deputies and confidential informants; while conducting strip searches; when community members are reporting crime; appearing before a magistrate; when officers/deputies are on break or otherwise engaged in personal activities; or in restrooms or locker rooms.
- Officers/deputies must comply with individual federal, state and local courthouse policies and with medical facilities POLICIES about wearing cameras in those building.
The local policies
“At the Henry County Sheriff’s Office, we support and appreciate the use of body cameras,” Henry County Sheriff Lane Perry wrote in an email. “We believe in its ability to accurately capture situations encountered by our officers. This then turns into evidence in court, footage for training, and can be reviewed to ensure fair and impartial justice is taking place in our community.
“Occasionally, we review footage based upon a request and almost always find our officers have been very professional despite whatever they encountered.”
Perry said in putting the policy together, the HCSO reviewed policies of several different agencies and pulled the best practices from each.
“We wanted a comprehensive policy, but also wanted it as concise as possible so the officer can easily read and implement it. We’re coming up on the 5-year mark of use of body cameras and to my knowledge, we have not had an incident that a more expansive policy would have changed,” Perry said.
Patrick County Sheriff Dan Smith said in an email that his department has followed the DCJS policy very closely.
“Some of the language has been changed here and there,” he said. “But it is overall very similar.
“The DCJS model is, for the most part, a solid model to follow. We obviously have to give some discretion to the deputy on when to record because there would be absolutely no way to accommodate the vast amount of storage otherwise.”
Nester wrote in an email that he believes the HCSO’s policy is comprehensive and covers what is needed for this jurisdiction.
“The policy does not require the camera to be rolling for their entire shift and uses a ‘common sense’ approach,” he said. “I will say that, by and large, the deputies do a very good job of using sound judgment on their body-camera use. More often than not they err on the side of caution and record way more than is actually needed or required.”
Vikram Kapil, deputy public defender for Henry and Patrick counties and the city of Martinsville, wrote in an email that the body camera is an important issue for Virginia citizens, that the General Assembly and localities have and are paying for law enforcement body cameras, and that the people are in favor of the expense.
“Body cams tell the story of encounters with police and citizens,” Kapil said. “Generally, our body-cam views show our LEs [law enforcement] to be professional and courteous.
“The viewings also show citizens in very stressful situations. However, without camera footage, both LE and citizens tend to be mistaken in their recollections as to what exactly happened. Body cam helps with this.”
He noted – a point echoed by Nester – that the General Assembly places such importance with body cameras that lawmakers have provided additional prosecutors to assist in reviewing footage.
“The Commonwealth Attorneys in Henry, Martinsville and Patrick will all expand their offices by adding new prosecuting attorneys to accomplish the body cam workload,” Kapil said. “The prosecutors are obligated to under Brady v. Maryland that if they have knowledge of evidence that tends to prove a person is innocent they must notify the defendant and their counsel.
“Therefore, if they view the encounters with body cam and they note this type of evidence, then they have that duty to inform the appropriate persons.”
Opportunity for defense lawyers
Kapil said the burden to review body cameras also falls on the citizen and the defense lawyer.
“Reviewing body cams [is] time consuming and many times there are multiple body cams to view from different officers,” he said. “Perspectives can be different from different angles.
“Defense counsel will need to put in hours to review this evidence and especially Public Defenders who at this time do not have the additional resources will be stretched thin to accomplish this work to prepare for cases.”
However, he said, body cameras have problems, such as when law enforcement does not turn on the camera, when footage is not preserved, and when there are multiple officers but only one body cam.
“…the audio is also important — What was said, how it was said. What was the meaning of what was said,” Kapil said.
“Generally, body cam does help getting a better picture of what happened in an encounter. The interpretation of what a judge or jury or public is watching is still important. Technology still can’t make that easier.”
Wren Williams, a lawyer in Patrick County, wrote in an email that as an attorney, he likes the use of body cameras.
“Body cameras keep everyone honest: the accused; the alleged victims; and even the officers involved,” he said. “I’m able to see and hear what happened at the scene rather than rely on the officer’s memory, his/her report, and the memories of all the witnesses at the scene.
“A body camera can show, from start to finish, what was said, what happened, how each person present acted, the timeline of events, and what was said between individuals.”
Williams gave this example: In domestic disputes between a couple, rarely do more than two people witness the crime, and they are the same people involved in the event.
“When an officer arrives with a body camera, you’re able to see the demeanor and the physical appearance of the two individuals, as well as what is being said,” he said. “At trial, the alleged victim may be unwilling to testify against the accused, or he/she may become forgetful of what happened…. This was once the BANE of the Commonwealth’s existence in domestic cases, but the body camera footage is now able to be brought into evidence during the trial. This evidence is usually considered more reliable at that point because everything captured was done so in the heat of the moment rather than several months after the event,” Williams said.
How it is used
Martinsville Commonwealth’s Attorney Andy Hall said there are pros and cons regarding use of body cameras. He said body cams provide insight as to what actually happened that an officer responds to, with video accompanied by audio.
“But therein we start to see some of the problems with body cam, some of the limitations,” he said. “We are not going actually to see what the officer sees, because we can’t angle the camera behind her eyes. We will see things from an angle, so there is no way that we are going to see everything.
“If the officer has the body cam positioned on her chest, and she is 5 feet 10, that’s the angle we will see. The body cam is stationary. It is not on a swivel; it does not move.”
But Hall noted that body cameras are mechanical devices operated by human beings. Mechanical devices fail on occasion, and officers, being human, on occasion may forget to turn on the body cameras on or to download the content and preserve it.
“But if we do not have body cam footage in a case, this fact is sometimes weaponized and used against us in court. And it is a very effective tactic,” Hall said.
He did not mention any particular case or cases.
But in that case earlier this month, a Martinsville Circuit Court jury acquitted Will Antwan Witcher, 29, of Martinsville of possession of a gun with a Schedule I or II drug, possession of a firearm by a violent felon, distribution of marijuana and possession of cocaine with intent to distribute.
One of a number of factors that might possibly have influenced the jury’s verdict was that police officer body-camera footage had not been preserved for trial evidence, lawyers said in interviews recently.
Martinsville Police Chief Eddie Cassady said on Aug. 14 said he didn’t have the specifics about the body-camera footage in the Witcher case without looking into it further. But he said the police department’s practice is to download the footage at the end of the officer’s shift. The video file is kept on a server for 90 days, at which time it will be purged from the server unless it had been marked as evidence either by the police department or the commonwealth’s attorney’s office, which automatically preserves it.
“We do the best we can to present cases [to the commonwealth’s attorney’s office and the court], to find out the truth of what happened,” Cassady said.
Patrick County’s Smith noted a key element of all of this for law enforcement agencies.
“Our biggest issue, like everyone else, is data storage,” he said. “Even with the three-month overwriting, data storage space is always a challenge, and additional servers are costly, usually in the $8,000 ball park.”
The public’s rights
In 2015 the Virginia ACLU conducted a study, based on hundreds of requests under the Virginia Freedom of Information Act, about the distribution of body cameras in Virginia and the policies employed by various agencies. Its findings were used to underscore concerns about the rights and privacy of individuals that could be compromised without specific and carefully enforced policies for body cameras.
Bill Farrar, director of strategic communications for ACLU of Virginia, wrote in an email that that organization does not encourage or object to the use of these cameras by police or any technology.
“We do urge agencies to adopt usage policies that are Constitutional, in particular that protect people’s privacy and due process rights,” he said. “We feel that consistency in these local policies across the state is critical so that people know what to expect when they cross the line from one jurisdiction to the next.
“That includes rules on when cameras are to be used, how and when subjects should be notified, whether officers can look at video before filing a report, how long video is retained, whether victims and witnesses can decline to be videoed, whether the subject of a video is allowed to see it, whether police have to ask permission to use cameras inside one’s residence, and many other issues.”
Farrar added that police should fully embrace the notion that when they say body cameras are deployed with intent to increase transparency and accountability, “the public’s trust is then eroded when video is withheld almost every time an officer is accused of wrongdoing.
“We encourage local residents to ask their law enforcement agencies these questions and insist that usage policies be published on their websites, and also that the public be notified and get to have a say anytime new surveillance technologies are being considered for purchase.”
Paul Collins is a reporter for the Martinsville Bulletin. Contact him at 276-638-8801, ext. 236.