To Those Who Would Be Gods
I appeared at a seminar the other day where the subject was videos. The hot topic was whether to allow an officer to watch a video prior to an interrogation. As you might expect, the majority of the panel members were against it. Various reasons were given, and, of course, everyone swore that they would be reasonable if there was a conflict and by the way, you don’t show the video to the suspect before an interview, so why should you show it to a cop?
The problem is that reason is in the eye of the beholder and the ultimate effect of a conflict between a statement and the video is radically different for the suspect than the officer. The suspect is not fired from his job and banned from ever working in his chosen occupation for the rest of his life if a conflict is said to be a false statement. That is what happens to an officer who has a sustained charge of false or misleading statements. And if your memory is different than the video, you are exposed to that interpretation. Once terminated for a false statement, no other law enforcement agency will touch you because of Brady v. Maryland. You are damaged goods.
Not showing the video prior to an interview is in fact a credibility test, although it is often dressed up with other reasons like “we just want to capture your state of mind.” As a credibility test, it is highly unreliable, especially in high-stress situations. Ask any experienced detective and he/she will tell you that the weakest element in a case is eyewitness testimony. The reason is that memory in human beings is inherently unreliable.
Science has known this for decades. A memory is not a file buried somewhere in your brain that can be retrieved at will. Research has shown that a memory is a set of associations (visions, smells, emotions, etc.) scattered in various places in your mind that are reassembled when you “remember” something. In fact, a study done to find out why childhood memories of persons who shared the same experience were different found that every time a memory is summoned into consciousness, an alteration occurs. That is why twins have different memories of the same incident.
Apply that science to the fact that an officer isolated from his partners after a shooting and waiting with great anxiety for the Force Investigation Division detectives to arrive goes through the incident a thousand times in his/her brain. Alteration has already occurred long before the interview. Then more alteration occurs when the officer goes through the walk-through as being back at the scene refreshes and reinforces other associations.
The real issue is not “has alteration of the memory occurred?” It has occurred, just by thinking and trying to remember. The real issue is whether the alteration moved the memory toward, or away, from accuracy. A walk-through moves the memory towards accuracy. So does viewing a video of the incident. So does group discussions and so does getting some sleep before the interview. Science has repeatedly shown this to be true.
But it is not accuracy that is most important to the Department. It is the credibility test that is most important. The problem is that deciding whether someone is a liar, or just mistaken, disillusioned, or the victim of the various known physiological effects of high-stress incidents such as tunnel vision (also known as selective attention), auditory exclusions, time warping, false memories, or freeze framing, requires godlike qualities because looking into the soul of the officer for evil intent is required.
Unfortunately for officers, there is no shortage of those in command who think they possess such powers. For instance, an officer witnessed a suspect push a passenger out of a car and drive over the man’s head. In a panic, the officer tried to stop the vehicle and ended up firing his weapon at the suspect. His memory did not match the video. Again, he was charged with false or misleading statements and terminated. The officer was not shown the video prior to his interrogation. There are other examples, but you get the idea.
The application of the credibility test is inconsistent. The Chief of Police denied on camera knowing about his daughter’s horse being purchased by the Department until shown his signature on documents concerning the purchase. A mistake or a lie?
I will allow that it was probably a mistake because I am not a god and cannot look into Chief Beck’s soul. I know that human beings make errors and that even our best and brightest are sometimes HUA. But I want the same presumption to be applied to the officer on the street.
The Chief is high enough in rank that there is no one above him who can claim god-ship and label him a liar. Not so the lowly ranked patrol officers. There are gods aplenty over them! Maybe false gods, but still powerful enough to send these officers into oblivion.
At the bottom of the debate over whether to view or not to view the video before the interrogation is this possibility of devastation to an officer’s career. Until the Department worries as much about accuracy as they do about pseudo-credibility tests, the working officer is in danger. And the harder the officer works, the more citizen contacts he/she will have, increasing the danger.
The strange thing is that accuracy should be the goal of both the Department and the officer. Putting the officer in a position where the frailties of human memory almost guarantee that there will be conflicts with a video is irresponsible. Even if the Department recognizes that conflict is normal, a District Attorney may not, and, certainly, a plaintiff’s attorney will not. More taxpayer money will go out the civil court window.
The reason this subject is relevant is because 600 body cameras are about to hit the streets and the League will be negotiating the policy surrounding their use. The Police Commission is going to be consulting with all of the stakeholders in this issue and that includes the ACLU. I have already mentioned what their position is.
We hope that we will be able to duplicate the policy now in effect for the DICVS, but there are no guarantees. The League’s position is that you have a right to be accurate and that means using every possible tool to refresh your memory, including videos.
Let me close by mentioning the study that is used as the poster child for success of the body camera movement. The chief of police of Rialto PD did a study for his master’s dissertation at the Cambridge University Institute of Criminology. He outfitted half of his officers with body cams and half without. In one year, uses of force dropped 60 percent for the camera wearing group and personnel complaints dropped 88 percent.
The Rialto officers bought in to the body camera philosophy and all now wear cameras. Do you want to know why? Besides the favorable results, they had this in their body camera policy.
“5. It shall be deemed a violation of this policy for a supervisor to review recordings for the sole purpose of searching for violations of department policy or law not related to a specific complaint or incident.
C. An employee may review BWV files as it relates to:
1. Their involvement in an incident for the purposes of completing a criminal investigation and preparing official reports.
2. Prior to courtroom testimony or for courtroom presentation.
3. Providing a statement pursuant to an administrative inquiry, including officer involved shooting investigations.
4. Critical Incidents: Officers are encouraged to consult legal representation and may review their video prior to providing a statement pursuant to an administrative inquiry.” [Emphasis added]
The policy says it all. Rialto officers see the camera as a valuable tool, not a big brother hangman’s noose. Will LAPD management be able to instill the same philosophy in our officers?
Be legally careful out there.
