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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[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- 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.
- 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%
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Carlos Gonzalez Oakland POA
Very well informed group.
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Paul Barrolaza Twin Cities POA
- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- 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.”
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- James F. Beland Lake County SDA
- 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!
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- 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.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Raymond Fisher Colorado State Patrol Assn
I have known for sometime that PORAC would provide the services I needed at the time I needed them. This is a professional competent organization prepared to handle the appropriate legal matters our officers face in today's environment.
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- 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!
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- 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!!
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- 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!
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Emery Eccle Culver City POA
LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- 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.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- 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..
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- 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.
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Jeff Stanley Upland POA
Excellent representation. [My representative] is a great attorney.
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Robert Hartman Contra Costa Co DSA
Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Douglas Mansker Bakersfield POA
(My attorney) is a very good attorney, despite his young age. He kept me well informed throughout my legal matter and returned phone calls in a prompt manner. I was very satisfied with his performance and would not hesitate to be represented by him again.
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- 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.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- 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
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- 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.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. 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.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Carl Miller Clearlake POA