Op-Ed: Like DNA, Cameras on Cops Would Reveal Truth

The National Law Journal

By Nancy Gertner and John Reinstein

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DNA testing and videotaping of police-citizen encounters may have more in common than you might think. Both show not what arguably happened but what is true (or as close to true as we can get). DNA exonerations have enabled us to examine the behavior of lawyers, judges and prosecutors in order to understand how a wrongful conviction happened. Videotaping of police-citizen encounters could well do the same for policing and civil rights challenges to police misconduct.

Before DNA testing, there was no way to determine at a crime scene what actually happened with any certainty. The criminal justice system was largely about fair process, but as we have come to know, not about truth. After a verdict, witnesses might change their testimony, a new forensic expert might re-examine the evidence, and new evidence might emerge, but a court could not say which account — the trial or posttrial — was ­accurate.

DNA testing effected a sea change. If the DNA found on the murder weapon excludes the defendant, or is identical to another's, for example, we know that the defendant's conviction is wrong. And with that, we can try to identify the court, lawyer or police errors that made it possible. Those errors can include flawed eyewitness identification, the erroneous admission of ballistics testimony, or even ineffective assistance of counsel, as the Innocence Project has found in numbers of exonerations.

Likewise, videotaping police-citizen encounters could also enable a critical evaluation of policing and even challenge the courts' treatment of police misconduct cases.

In Walter Scott's death in North Charleston, South Carolina, police officer Michael Slager reported that he was in fear of his life — that Scott had seized his Taser and was threatening him. Subsequent police reports accepted Slager's version, as they almost always will.

It wasn't until the videotape of Scott's shooting surfaced that the public could see what really happened: a white police officer thought so little of a black man's life that he callously shot him in the back, when he had posed no danger to Slager or to anyone else.

Slager and his superiors insisted his conduct was self-defense, not excessive force. Although such a defense may well be justifiable in some cases, too often it is an explanation that the courts have accepted without critical examination. In Plumhoff v. Rickard, for example, the U.S. Supreme Court held that officers who had pulled over a car with one operating headlight and whose driver then sped off were justified in chasing it, firing 15 shots and killing both the unarmed driver and passenger.

In determining whether the officer's conduct was "reasonable," the court deferred to the officer's version of what happened, even in a traffic stop turned lethal, and did not second-guess whether there were other alternatives to shooting to kill.

But videos will reveal not just the truth about the initial police-civilian encounter, but even more clearly, the truth about the subsequent cover-up. In South Carolina, one officer casually surveyed the scene after Scott was shot by Slager, without trying to help Scott or even castigate the shooter. He accepted his colleague's version of the facts, wrote a perfunctory report that was accepted by supervisory officers who immediately, and clearly without investigation, backed him up. Slager was fired and charged with murder. How will the other officers be held accountable?


Just as the courts have too often accepted the line officer's account of self-defense, however improbable, they have ignored the liability of supervisors, relieving them of responsibility for policing the police. In Ramirez-Lluveras v. Rivera-Merced the U.S. Court of Appeals for the First Circuit considered the liability of police supervisors for what amounted to a police execution of an unarmed man.

When the civilian was lying face down on the ground, motionless and bleeding, the officer shot him, execution style in the back of his head, in front of ­witnesses.

As in the Scott case, supervisors publicly defended the policeman, working with field officers to burnish his story. The officer, they insisted, was defending himself against the citizen's unprovoked aggression.

They didn't change their tune until a videotape of the shooting was widely distributed. The police officer-shooter was dismissed from the force and prosecuted, but when the family of the slain civilian sued the supervisors, the court dismissed the claim.

The court refused to look beyond the cover-up. It was irrelevant, the court found, because it occurred after the citizen had died. There was no recognition of the atmosphere of impunity that the cover-up may have reflected. The police officer could execute an unarmed man in full view of a crowd, confident that his supervisors would come to his support, no matter what — and the courts would turn a blind eye.

Videotaping of police-citizen encounters like these shines a light on the problem, not only of the aberrant police officer, but also of the police departments — and courts — that may too often ignore and even enable them. Just as DNA evidence has given us pause about trials we believed were fair, video evidence compels reconsideration of the courts' treatment of officers and their supervisors accused of misconduct.