MICHAEL P. STONE
Stone Busailah, LLP
Understanding Why Video Evidence Is Deceptive and Misleading, and Often Undercuts the Value of Eyewitness Testimony
A court trial this week in yet another fatal officer-involved shooting case in Los Angeles featured a familiar conflict in the evidence: officer eyewitness testimony versus news and bystander video. We have faced this many times before over the past 24 years, since the Rodney King trials.
It would be a good thing if, in at least most of the cases, the video evidence was unequivocal and supported the officers’ versions of how the event unfolded, or what the decedent did or was doing at the time of the shooting. In these circumstances, we say that “the officer’s perception upon which he or she acted was consistent with the video recording,” or “the video evidence validated the officer’s testimony.”
Unfortunately, the quality of most video evidence does not permit such sweeping conclusions. The greater the differences in position, direction, elevation, lighting, recording speed, volume, angles and so on between officers and camera, the greater the discrepancies usually are between officers’ versions as testified to and the videos admitted in evidence.
Juries will normally rely more heavily on what they can see, for example in a video snippet, than what they hear from a witness or party who testifies in a case. For this reason, we say that video is the more “compelling” evidence, in contrast to witness or party testimony. “Compelling evidence!” We are accustomed to hearing litigators pleading their cases before judges and juries freely toss around this conclusory phrase and so, vouching for the qualities of the evidence in the case, conclude that the weight and quantum of the evidence produced can lead to only one conclusion. On the other hand, I often remark that video evidence is “compelling” because the average lay juror embraces it. I do not mean to say that it is “compelling” in the larger sense of the word — that it is so highly probative it cannot be disregarded. Used here, we say video evidence is “compelling” because lay jurors regard it that way, often giving it greater weight than it is due compared to eyewitness testimony. Can compelling evidence be, at the same time, misleading? Can compelling evidence be deceptive? When lay jurors are told, “You are going to see a video recording of the actual event that caught these officers…” the stage is set for disbelief in the officers’ testimony and reports wherever they are contradicted (or not validated) by the video recordings.
Police defense litigators approaching trial in a case where there is video must carefully analyze the video recordings against the backdrop of eyewitness and police reports and testimony. Sometimes a recording will contradict statements made. Other times it may not directly contradict the statements, but it does not validate the statements because, for example, the camera did not have the occurrence or event in its field of view. Every such “discrepancy” needs to be identified and accounted for, well before trial, so that lay jurors are not left to decide for themselves why there is a discrepancy. They have to “see” what is there and what is not there.
But for the same reason, a juror is more likely to conclude that something did not happen if it cannot be seen in a video admitted in evidence, and yet, we know that because of all the limitations on video evidence, it may not show something that in fact occurred. If there is a video view of a police confrontation where the camera is not in a position to clearly record the same view the officer is experiencing, and where a significant event occurs in the officer’s perception that is not recorded in the video account, we have the risk of disbelief in the officer’s testimony or at least rejection of the testimony as inaccurate, if not false.
Finding the truth in a litigated case such as this often depends on the officer’s counsel’s success in getting the judge or jury to accept police testimony that is not validated by video recordation. That success is directly connected to the effectiveness and “believability” of the officer’s testimony. The officer’s testimony at trial is formed based upon the officer’s initial investigatory statements and reports. So, like dominoes, the testimony falls this way or that because of the officer’s initial accounts. In these circumstances, the initial interviews of officers and preparation of their earliest reports are “critical stages” of the case, demanding the utmost in care, time preparation and devotion to detail as any that the officers will complete or participate in making. Recognize that every discrepancy between what is seen or not seen in video and what is said in reports and testimony will be underscored and accented at trial, leading potentially to an unjust result or catastrophic verdict.
It is partly a question of timing. In a violent and rapidly evolving dynamic confrontation “caught” on video, officers should never be compelled to make any statements of record without a full opportunity to study all available video recordings. Otherwise, the officers may blindly walk into a complicated trap for the unwary. Their honest perceptions and memory of the event are their reality, regardless of what the video shows or does not show. Obvious discrepancies have to be confronted at the outset and resolved to the greatest extent possible.
All of this debate over the past few years regarding policies related to not permitting officers to view videos of events until after they have made detailed statements ignores the reality of this situation, and the variations and conflicts between testimony and video in litigated cases. It is plainly unfair to the witness officer and undermines even thoroughly honest testimony.
Since Graham v. Connor (1989) 490 U.S. 386, the courts have emphasized that police use of force is to be judged according to the “reasonable officer on the scene, in the same or similar circumstances” standard. Would a reasonable officer in the same situation respond in the way that the subject officers did? Triers of fact, in order to answer these questions, must, as nearly as possible, “stand in the shoes” of the officers confronting the situation, and understand their training, experiences, perceptions, assessments, fears and responsive reactions in order to follow the law and do the jurors’ job.
In the ever-more-rare dynamic police force case where there is no video, critics say “police own the narrative.” In other words, police testimony dominates what the jurors hear and learn at trial. And, to the extent that the “police narrative” is fabricated to cover up wrongdoing, officers guilty of serious misconduct or even homicide may “get away with it.” Hence, people in contact with the police or witnesses are encouraged to video-record everything. But it is impossible to record everything that is significant, especially if the recording does not present the officers’ viewpoint. If the recording does not fairly present the officers’ view, it does not help anyone “stand in the shoes” of the officers at the time.
Our Supreme Court in Graham v. Connor, supra, instructed that we are not to employ 20/20 hindsight clarity in evaluating officers’ actions in a violent confrontation at the time they acted. I always argue in these cases that “frame-by-frame, pinpoint, enhanced, slow-motion video analysis in these incidents in the calm environment of the courtroom is tantamount to ‘employing 20/20 hindsight in spades.’ The officers’ perception and memories are their reality; not what can be seen or not in a video.”
The case of Aipperspach v. McInerney, 766 F.3d 803 (8th Cir. 2014), is instructive. In Aipperspach, a news helicopter circling overhead captured the police incident on video. The plaintiff in Aipperspach did not directly contest the testimony of the officers, but instead presented the video of the incident taken from above the scene by the helicopter. The district judge commented that the video “does not answer the question of whether the officers’ actions were ‘objectively reasonable’ from the perspective of those on the ground. Rather, the video provides only the aerial perspective of the person who recorded it. Moreover, the Court’s viewing the video over three years later is precisely the kind of hindsight judgment ... the United States Supreme Court ha[s] cautioned against” (Aipperspach v. McInerney, 963 F.Supp.2d 901, 908 [August 2, 2013, W.D. Mo.]).
The district judge further noted, “That technology now allows the Court to travel back in time to determine whether decisions were reasonable in hindsight does little to affect the reasonableness of decisions in the moment. Accordingly, the video and picture evidence does nothing to controvert the testimony of numerous officers that they believed that [the suspect was] endangering their lives” (Id. at 909).
Affirming the judgment, the Court of Appeal noted that “‘the inquiry here is ... whether, from an objective viewpoint and taking all factors into consideration, [each defendant officer] reasonably feared for his life’ or the lives of his fellow officers. Wilson v. Meeks, 52 F.3d 1547, 1553 (10th Cir. 1995). The video taken from high above the scene sheds no material light on that question” (Aipperspach, supra, at 808).
Reviewers of violent, rapidly developing police confrontations after the fact, whether they be judges, juries, civil service commissions, arbitrators or police use-of-force review panels, are required to follow the Graham v. Connor analysis, utilizing the “reasonable officer on the scene at the time” standard to evaluate police actions. Video recordings of the event pose a serious risk to a proper outcome by the temptation they pose to apply the clarity of 20/20 hindsight in the review process. Video evidence that does nothing to assist the process of evaluating the officers’ actions at the time should be disregarded in favor of eyewitness testimony.
About the Author
Michael P. Stone is the founder and principal partner of Stone Busailah, LLP. His career in police and the law spans 49 years. He has been defending law enforcement for 35 years in federal and state, criminal, civil, administrative and appellate litigation.
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Highly recommend this program for any LEO!
- 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.
- Scott Hamilton San Bernardino Co SEBA
Don't go to work without LDF!
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Ron Ruddy Riverside POA
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- 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.
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Michelle Foerder Pinole PEA
I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
- 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.
- 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].
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- James Beckman Miracosta College POA
Excellent service everytime.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Brian Schopf Elk Grove POA
Keep up the good work.
- 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!
- Steven Moorehouse Redding POA
Thank you for your help.
- 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.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Greg Gladson LA Airport POA
[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
- 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.
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Micheal Chad Heiser Santa Rosa POA
LDF is a valuable resource that no law enforcement officer should be without.
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- 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.”
- 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.
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- 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.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- 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 !!
- 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!
- 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.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- Michael Sexton Manteca POA
[My representative] was awesome.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- 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!
- 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!
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- James Hika Border Patrol Supervisors Association
They did a great job!
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- 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.
- 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.
- William Jackson Santa Maria POA
Keep up the great work.
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- 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.
- 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.
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- 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.
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Carl Miller Clearlake POA
- 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..