By: James L. Maswick
Body cameras have been in the spotlight as of lately. From the Michael Brown death in Ferguson, Missouri, in which the officer did not wear a body camera during the incident which led to Mr. Brown's death, to video of the Eric Garner death in Staten Island resulting in calls for police to wear body cameras on a more regular basis, the presence of them on police officers has become part of the national conversation.
More and more police departments are requiring the use of body cameras during their officers' shifts in upstate New York. Two of the departments which regularly wear body cameras include the Saranac Lake Police Department and the Saratoga Springs Police Department. In fact, as was recently reported, the Saratoga County Public Safety Commission is considering a proposal to outfit and require all 84 patrol deputies to wear body cameras while on duty. See the recent article written by Dennis Yusko, "Saratoga County Considers Body Cameras for all Deputies", Times Union, available at: http://www.timesunion.com/news/article/Saratoga-County-considers-body-cameras-for-all-6015033.php. Body camera footage will be an increasing part of criminal defense work.
What are body cameras and how do they work?
Body cameras are small, sometimes nearly invisible devices which are perched either on a police officer's shoulder or lapel. Powered by a battery pack that the officer wears, when in use, body cameras capture images from the police officer's perspective and this can provide very important evidence, either for the prosecution or the defense. The video is often strikingly clear, with high audio quality, and frequently provides for an undisputable record of events.
What are some issues associated with body cameras?
Body cameras have, to some extent, displaced the dashboard mounted units that police officers utilized in their vehicles while making a traffic stop. Body cameras have the added benefit of going wherever the officer goes and recording at the same time. However, in our office, we have found that this has likely led to an unintended consequence. In general, there is less video available of the actual traffic stop in traffic prosecutions. This can be a critical issue in cases involving driving while intoxicated, cases based on a search of a vehicle after the car was stopped for a small traffic infraction or drug possession cases which were initiated once a driver allegedly committed a traffic infraction. Also, the video of traffic stops is often not as clear of the vehicle stop, known as the predicate stop, with body cameras than with the dashboard mounted units.
Another issue with body cameras is that an officer can shut it off when they so desire. This can lead to interesting arguments and evidentiary issues in the defense of criminal cases. Questions can be posed such as why the officer chose to shut off his camera when he did or why no video exists of some of the field sobriety tests, for example, in a driving while intoxicated prosecution.
With the increased scrutiny and attention body cameras have received, it is likely that these will continue to be important pieces of evidence and more prevalent in the future. It will continue to be of great importance to have criminal defense attorneys who represent you who are familiar with body camera evidence and how to use it to their client's advantage or work to exclude it on an evidentiary basis.
James L. Maswick is an attorney with Flink Smith Law LLC, which has offices located in Albany and Lake Placid. Jamey lives in and works primarily out of the Lake Placid office. He maintains a varied practice, including regularly handling insurance defense matters for many carriers and their insureds, plaintiff's personal injury cases, criminal defense for those facing charges, including DWI defense, family and matrimonial law matters and real estate transactions for anyone from first-time home buyers to those purchasing another large vacation home. Jamey enjoys alpine and cross-country skiing and road and mountain biking when not in the office. His fiancé, Caitlin, and he have a September 2015 wedding planned.
James can be reached at firstname.lastname@example.org or 518-523-2441 x 15.