By Ken Wallentine, Chief of Law Enforcement, Utah Attorney General
hould an officer give a postcritical incident statement before or after the officer reviews dash camera video, surveillance or body-mounted camera video, electronic control device downloads, or other definitive forensic evidence? This question was posed at the Legal Officers Section workshops at the 118th Annual IACP Conference in Chicago, Illinois. Panelists and Legal Officers Section members discussed the legal issues involved, while another session called “Chief, I’ve Been in a Shooting: What Happens Next?” considered the immediate advice about video review for officers involved in a critical incident.
The law and the science may be at odds here. The law generally seeks the best recall based on raw memory, captured as quickly as possible. Science posits that video review, rest following the critical incident, a walk-through, and cognitive interviewing offer a far more accurate memory of the event. The debate will continue as the science of memory and perception and as the technology develop by leaps and bounds.
Following the Bay Area Rapid Transit (BART) shooting in 2009, a law firm was commissioned to study BART Police Department policies. The report states that “Officers should not view video of an incident prior to being interviewed. Allowing officers to view video prior to an interview allows them to either subconsciously fill in the blanks where there are no memories of the incident or preplan for alibis for substandard conduct. Either way, allowing officers to view video of the event prior to the interview erodes the public’s faith in the process and unnecessarily impacts the investigation.”1
Psychologists and other scientists studying memory have long known that memories of stressful events are fragmentary. Any officer who has been involved in a critical incident knows this. Officers focus on the threat, generally to the exclusion of most other events happening in the background or the periphery. Scientists call this “selective attention.” The brain prioritizes information by what matters most at the moment, discarding unnecessary details and increasing the brain’s ability to direct the response to a threat. Those discarded details leave memory gaps. Prestatement video review may prompt the officer to fill in the blanks of the incident. This could lead to false memories and subtly guide the officer to conform actual memory of the event to what the officer now perceives from the video recording.
It is what the officer actually perceived before making a force decision that really counts in legal analysis of force. The U.S. Supreme Court held that an officer’s force must be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”2 If the officer actually did not perceive certain circumstances, then introducing a false memory via video review could put the officer in legal peril. The officer could be held accountable for “newly remembered” circumstances that the officer did not actually perceive at the time of the critical incident. A plaintiff’s attorney—or a prosecutor charging the officer with criminal misconduct—would argue that the officer should have considered the “remembered” facts in the use-of-force decision process.
Video recording shows only a single, two-dimensional perspective and may not capture the officer’s perspective. There may be several involved officers, all with different fields of vision and different perceptions, and no video recording can track each different perspective. Recording devices vary in quality, and most automatically adjust for lighting conditions, giving an inaccurate impression of the lighting available to the involved officers. Other critical technology weaknesses include the frame-per-second capture rate and the autofocus quality. Video recording may not capture movements that truly occur in the blink of an eye. However, these criticisms address the inherent weaknesses of video recording, not whether the detriment of viewing imperfect video recordings outweighs the benefit of enhanced recall.
One panelist noted that it seems unfair for an officer to view video when suspects and citizen witnesses do not have the same opportunity to do so. Prominent police attorney Laura Scarry observed that police officers involved in critical incidents are unique. Officers are public employees with constitutional and statutory rights. Unlike a typical citizen witness, the officer could conceivably become a criminal suspect depending on the quality of the statement. At the same time, the officer is an eyewitness, an actor, and perhaps the victim of a violent crime.
Mike Brave, prominent use-of-force expert and litigation counsel for TASER International, noted during the IACP 2011 session, “I am seeking the most accurate statement possible, not providing critics, plaintiffs, and others their ‘gotcha’ moments.” The phenomenon of selective attention means that officers will never accurately recall and report all of the critical incident details. Video review can give contextual cues to stimulate the recall. John Bostain, program specialist with the Federal Law Enforcement Training Center, observed at an earlier annual IACP conference that a proper walk-through “will improve recall by 50 percent to 70 percent.” Video recordings often include sound, potentially offering even more contextual cues than a walk-through.
Force Science Research Center Director Dr. Bill Lewinski notes that “the most enriched, complete, and factually accurate version of a high-stress encounter is most likely to occur after a walk-through and/or after the officer has had at least one opportunity to view an available video of the incident.”3 Lewinski cautioned that video review may stimulate recall, but it is not the complete cure for the shortcomings of human memory. Video review proponents cite other research on recall, but the science is far from definitive on the significance of video review in memory enhancement.
If an agency decides to allow officers to review video prior to giving a formal statement, when should the viewing take place? R. Edward Geiselman, PhD, UCLA psychology professor and father of the cognitive interview technique, recommends waiting one day—perhaps even two days—after the incident to obtain a formal statement from involved officers. Dr. Geiselman cites strong evidence that rest significantly improves recall. He notes that sleep deprivation increases the likelihood of false memories. Rest eases stress, and stress is proven to impair recall. It may be that the best timing is to allow the officer to view available video shortly before the formal statement. Further research is needed to develop best practices.
Whether the officer views the video before or after giving a formal statement, most police defense attorneys agree that having the officer complete a supplemental statement after viewing the video, or having the officer “correct” the initial statement, is a dire mistake. An agency should have a video review policy to ensure consistency. Officers should be trained on the limitations of video recording and trained to report their memories inconsistent with the video.
Any agency committed to continuous improvement should address the video review question prior to a critical incident. Though the science is changing, policy makers should take steps now to answer questions posed in crisis times. Police defense attorney Bruce Praet noted to the author, “As more technology becomes available and as more science weighs in on memory and perception, some previously impregnable practices are being called into question.”4 ■
1Review of BART PD Policies, Practices, and Procedures Re: New Year’s Day 2009, public report, August 11, 2009, 5, www.bart.gov/docs/Meyers_Nave_Public_Report.pdf (accessed November 8, 2011).
2Graham v. Connor, 490 U.S. 386, 396 (1989).
3“Should Officers See Video of Their Encounters? Force Science States Its Case,” Force Science News 114 (January 2009), www.forcescience.org/fsinews/2009/01/force-science-news-114-should-officers-see-video-of-their-encounters-force-science-states-its-case/ (accessed November 8, 2011).
4Bruce Praet, conversation with the author, November 2011.
Please cite as:
Ken Wallentine, "Postincident Video Review," Chief’s Counsel, The Police Chief 78 (December 2011): 1415.