MICHAEL D. SCHWARTZ, ESQ.
Rains Lucia Stern, PC
Digital audio recorders (DARs), dash cams, body-worn cameras and city cameras are currently, or in the near future will be, standard equipment for every peace officer in every jurisdiction. Conversely, cellphones with digital video cameras, digital handheld camcorders, and all forms of digital cameras were for a short time the tools of small and large businesses promoting their products, or the toys of everyday people used to save precious moments with family and friends for posterity or nostalgia. While George Orwell may have coined the phrase “Big Brother” as a less-than-complimentary description of an overbearing government, with the advancement, miniaturization and mass manufacturing of recording technologies, “Big Brother” now has thousands, if not millions, of volatile and increasingly dangerous siblings in the form of a small but vocal group of people with an anti-law-enforcement agenda. With the advent of social media, those “tools and toys,” the video/cameraphones, camcorders and the like, have become weapons in the hands of an anti-law-enforcement, angry, electronic mob.
The recent acquittal of Corporal Jay Cicinelli and Officer Manny Ramos in Fullerton was great, euphoric. But the recent public trend that drove the criminal filing and the case for two and a half years from the original incident through the verdict cannot be ignored. Video and audio evidence has become increasingly more public and is, therefore, playing a more significant role than ever before, not just in law enforcement, but also in the public perception of law enforcement. In this new era, it is imperative that peace officers understand the significance of this technology, not only as pieces of evidence in the cases they investigate or the trials they later testify in, but as an increasingly available media with the potential to influence the general public, prosecutors, police administrators and their officers. This article will serve as an introduction to some of the issues created by this technology and the effect it has had on cops, both on the street and in the courtroom.
I have had more than a few cases over the years where video and audio evidence were key pieces to the evidentiary puzzle. While I had a background in broadcast television before going to law school, and consequently an intuition about how video and audio evidence fits into the overall picture of a case, I am not a forensic expert. I have, therefore, routinely sought out the services of David Notowitz, a forensic audio and visual expert and founder of the National Center for Audio and Visual Forensics (NCAVF). Using his knowledge and experience in the field, Mr. Notowitz has developed a list of key considerations to take into account when evaluating audio and video evidence in a case. With his permission, I have borrowed and tweaked (to serve the purpose of this article) several of those considerations, from an outline he distributes at lectures; I have also taken the liberty of adding some of my own.
Cameras Can Be Everywhere — and Usually Are
As the Fullerton/Kelly Thomas case demonstrated, security cameras are becoming more and more prevalent. In that case, the camera that captured the altercation between Kelly Thomas (suspect) and the officers was a City of Fullerton camera placed at the bus depot (there are others at other locations in the city as well) to help the City and Police Department better monitor what was known to be either a dangerous or problematic location. Yet the video and audio “evidence” from that case that actually drove the media, bloggers and ultimately a criminal filing was, ironically, not from the City or the Department, but rather from raw, poor-quality cellphone videos. Most of the actions of the officers, and none of the actions of Kelly Thomas, were captured in those cellphone videos. The snippets of visual and audio that did make it to YouTube and beyond created hysteria and a firestorm that still simmers, albeit only in sparse embers even after a quick, decisive acquittal. The public really has no concept, background, education or experience in the techniques used by law enforcement to effect arrests or to subdue dangerous persons. Sadly, the most vocal critics of law enforcement still expect their streets, possessions and persons to be safe, but they want no part in knowing how that is accomplished. More and more frequently, the efforts of law enforcement to secure the public’s streets, possessions and persons is captured — or, more accurately, partially captured — electronically and almost instantaneously shared with an unlimited audience. The visual of law enforcement using violent or deadly force to subdue a threat to the public, no matter how justified or necessary, simply does not look appealing. No decent human being wants to see another person caused harm. Unfortunately, rather than applaud those who risk their own safety and lives, the knee-jerk reaction of the general public to recorded and highly publicized uses of force by police seems to be understandable shock, followed by uneducated criticism. Years ago, lynchings were done in the back of the jail, the courthouse or even at times in the town square; now they are carried out electronically on Twitter, YouTube, radio talk shows, newspapers and blogs.
If the above is distressing, it should be. Yet officers need to be aware that they are, in fact, being watched by a media and public ignorant of the role of law enforcement in our society and the challenges officers face daily in carrying out their duties. So, what can we do, you might ask?
Again, be aware: The officers in the Fullerton/Kelly Thomas case committed no crime. But some of the most damaging pieces of evidence were things they said while the altercation was going on and/or after the event, while venting in disbelief to their fellow officers. Also, departments or associations may want to consider more detailed press releases at the inception of the event to potentially lessen the degree of negative publicity caused by viewer ignorance and the dissection of the incident by novices or amateurs. The information void caused by the silence of the department or association is usually filled with such things. A few well-placed facts or pieces of information can dilute the oftentimes over-the-top claims of department or officer “cover-ups,” such as the legendary “code of silence” so popular with the paranoid, illogical and ill-informed media and public.
Process the Evidence and Get Positive Information Out Quickly
When cases do present video/audio evidence and the accompanying potential for explosive public reaction, it is imperative that the processing, enhancing and evaluating of the electronic evidence begin as soon as possible. Although the investigation will be an ongoing process, that process needs to begin immediately. That way, if there is any electronic evidence that can be released along with or as part of an overall press release, it may be able to waylay some of the negative public reaction. At the very least, it can allow for a more informed dialogue about the incident in the press.
Know the System From Which the Footage Was Gathered
The quality and workability of the evidence will be dependent on its source. Surveillance cameras, particularly older systems, are notorious for poor quality and the inability to enhance or even work with their footage. The age, type and quality of the system is, therefore, instrumental in knowing what exactly you’re dealing with, and how much ability you or your expert will have to enhance, evaluate or work with the material. Dark footage, while on the surface it may seem problematic, can actually be easier to enhance, and thus evaluate, than brighter footage. Video footage may also be subject to “compression” when going from system to system. The closer to the original footage and, even better, the original equipment that the footage came from, the better the ability to enhance it, work with it, evaluate it or all of the above. Again, knowing the source and its strengths and limitations can be valuable information for a more informed press release or interview to help either dilute or debunk media claims based on partial or poor-quality footage.
Get an Expert on Board
Getting a trained forensic expert on board as early as possible is integral to the evaluation and eventual successful use of the material or, in the alternative, its neutralization as evidence against the officer. An expert will add an objective, trained set of eyes and ears to your team. Once that person knows the key issues and facts of the case, those trained eyes and ears can pick out details and nuances often overlooked by a less trained, less impartial observer. He or she will also know the potential for enhancement and discernment of that material, as well its limitations.
Know the Material
For attorneys and clients alike, there is no substitute for knowing the video or audio like the proverbial back of your hand. Although a forensic expert is better equipped when evaluating the medium and its potentials, limitations and details, it is ultimately the attorney who will defend against the footage or, as I’ve had the good fortune to do, actually utilize that footage in his or her client’s defense. The attorney knows the legal and factual issues, and the client experienced what happened. Both need to be able to use the video to either bring out those legal and factual issues or, in the worst-case scenario, debunk or deflate the import of the electronic material in the government’s or administration’s case. Thus, there really can be no part of the material that is unknown, unfamiliar or not factored into the defense in some way.
In many of my cases where there was significant video or audio evidence (the Fullerton/Kelly Thomas case, the Ivory Webb case and the John Laurent case, to name a few), there were small facts or details in the material that we brought out during the trial that significantly changed how the jury viewed the case. I’ve had similar experiences in administrative hearings, OISs and even Brady reviews. Knowing the material allows the client the ability to better explain his or her state of mind during the event, and it allows the advocate an opportunity to better defend the case while explaining and validating the state of mind of the client.
We live in a rapidly evolving world. Technology seems to advance exponen-
tially not only daily, but by the hour. What was once thought to be in the purview of James Bond or Star Trek has become commonplace. In this ever-changing society, the role and consequent difficulties of the men and women of the law enforcement community to effectively carry out their duties has also increased in stride with the advancements in technology. An unpredictably open and recorded world is the new reality for police work. It has been a great help, and can and will continue to be. But we need to understand its negative impact as well, and how to deal with that influence when it affects officers statewide, agencywide or individually.
About the Author
Michael Schwartz heads Rains Lucia Stern’s Southern California practice. Michael is a highly regarded and experienced trial attorney. For the past 12 years, he has focused on representing peace officers in some of the toughest and most noteworthy criminal cases venued in Southern California.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Michael Sexton Manteca POA
[My representative] was awesome.
- Erick Gaunt Palos Verdes POA
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Tai Pena-Hornung Oakland POA
Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Paul Barrolaza Twin Cities POA
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Anthony Zack Vernon POA
This was the first time in my twenty-five year career that I had to use the services of my legal defense fund. My LDF Representative was extremely courteous, informative and professional.. She addressed all of my concerns and answered all of my questions. She did an overall outstanding job of representing me and handling my case. I could not have been any more pleased or satisfied with the job she did! I would definitely request her to represent me in the future if I needed representation.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- German Alvarez Anaheim PA
[My representative ] was great!
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Ken Burbank Shasta Co DSA
[ My representative ] was professional, articulate and prepared, but most importantly he understood the emotional impact the investigation was having on me as a person and peace officer. I highly recommend [my representative].
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- Christopher Adams Modesto POA
Thank you for all your help!
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- William Jackson Santa Maria POA
Keep up the great work.
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Micheal Chad Heiser Santa Rosa POA
LDF is a valuable resource that no law enforcement officer should be without.
- Brian Schopf Elk Grove POA
Keep up the good work.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Ronald J. Danison El Monte POA
The LDF is a tool available to me which I hope never goes away. It makes me feel that much more confident to do my job knowing LDF has my back when police work gets ugly. And it usually does..
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Aaron Delgado Monterey POA
My representative called me back promptly and kept me informed. I had the impression she cared and was there to help.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Steven Moorehouse Redding POA
Thank you for your help.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- James F. Beland Lake County SDA
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Greg Harman Kensington POA
[My representative] is the best!!
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!