Accuracy versus political expediency
I attended a seminar in Northern California in early May titled “Deadly Force in the Digital Era.” Basically, it was about the issue of capturing deadly force incidents on videotape. Videotaping of incidents, as all of us are aware, has become more and more common.
This seminar was presented by Rains Lucia Stern, PC, the law firm that represented the officer in the now infamous BART officer-involved shooting. The speakers included a behavioral scientist, district attorneys, a plaintiff’s attorney and a video forensic expert. The audience was chiefly from the Northern California area, made up of many chiefs of police and high ranking police managers.
Several of the Northern California agencies are equipping their officers with video body cameras along with the more traditional in-car video recording systems. The feeling is that if the public is going to video police actions, why should they be the only ones who have a copy? Aren’t we better off if we have our own video?
To videotape an incident — or not videotape an incident — was not in question. Everyone seemed to agree that it was valuable in this day and age to video an incident, because most of the time it helps the officers. The controversy swirls around when to allow an officer to view a video and when to keep it away from the officer. It depends on whether an agency is more concerned with accuracy or politics.
One of the speakers was Doctor Bill Lewinski of the Force Science Institute. Force Science is just what its name implies, the application of science to the use of force. The Force Science Institute is dedicated to the study of human dynamics in high-stress, rapidly unfolding force encounters.
Dr. Lewinski pointed out that law enforcement officers are woefully short on training. If you were to match the training of a high school athlete, say in football, he says, to the training that a department gives to an officer in the use of force, it would take the average police department 43 years to give the officer the same amount of training.
When the videotape of the officer in a high-stress use-of-force situation hits YouTube, the public expects perfection and worse yet, the Department uses it as a credibility test. (The Department tends to deny this, yet this week the League has hired counsel for two officers charged with false and misleading statements because their statements differed from a video. This happens all the time.) All too often, the Department is like the judge in the BART case who stated in the preliminary hearing: “I can see with my own eyes what happened; I don’t need an expert to explain it to me.”
Lewinski disagrees; however, he stays away from opinions on policy decisions and focuses on the science. I encourage you to go to the Force Science website at www.forcescience.org for more eye opening information.
In short, Dr. Lewinski’s research into videotape evidence revealed the following inherent weaknesses. The videotape never has the same perspective as the officer; it is never from the same position or angle as the officer’s eyesight. Video cameras record ambient, reflected and low light levels differently than the human eye, which varies with the health condition of the eye, age of the eye and other human factors. The video camera does not have the same history, perspective or interest as the officer, which affects the quality of the involved officer’s attention to the details of the event. The video camera can be subjected to multiple viewings, single frames, enhancements, and other actions, while the officer can only view the incident once. The video camera sees in 2D, the officer in 3D. The video camera records everything, while the officer is subject to tunnel vision, selective attention, inattentional blindness, freeze framing and other physiological factors not affecting a camera lens.
Actually, the video camera also does not record everything either. Remember that a video is nothing more than a string of photographs that, when shown fast enough, imitate motion by tricking the brain. Video cameras shoot the individual frames at different speeds. The slower the speed, the greater the gap between the individual photographs where actions can happen that are not recorded.
What is not commonly recognized is that as human beings, we see and hear with our brains, not with our eyes and ears. The eyes and ears record nothing. They provide information to the brain that is, or is not, stored in memory. Because of this, Dr. Lewinski says that research has shown that the eyes can be looking directly at something and not actually see when the brain is focusing on something else (think of using a cell phone while driving).
Dr. Lewinski says that humans do not store information like it is in a file. Memory is stored in associations. Memory operates in context and is enhanced by association. As an illustration, take memories of your days in high school. Going back to your high school and walking through the halls and classrooms will bring back and enhance your memories. This is because association gives you a richer, more complete and more accurate recall of an event. Similarly, viewing a videotape acts as a recognition refresher and enhances the officer’s memory and makes it more accurate. The same thing happens during a walk-through of the shooting scene.
Related to accuracy is sleep. Dr. Lewinski also stated that there is solid scientific evidence based on 20 years of research that at least one good sleep cycle improves memory. Memory clears and accuracy improves with sleep, as memory consolidates the information received by the brain. Conversely, there is a direct negative impact on memory by fatigue. Interviewing a fatigued officer is similar to conducting an interview with a person impaired by alcohol.
In the end, Dr. Lewinski, summoned it up this way. “If you want accuracy, take the officer on a walk-through of the scene, show the officer the video, and allow the officer time to rest.” But, he acknowledges, “This will cause political issues.”
With the science complete, it didn’t take long for the next speakers to point out the political issues. Fundamentally, it boils down to this. Does the policy of the agency treat the officer like a victim, or a criminal, or both?
It was pointed out that the purpose of equipping officers with body cameras was to improve the accuracy of their report writing, protect them from unfounded allegations of misconduct, and reduce needless litigation by providing a more transparent record of law enforcement encounters. So why deprive the officer of accessing this tool when he or she is involved in a use of force? If the officer is considered a victim of an assault, there is no reason to do so. The Department wants the crime report against the suspect to be as accurate as possible and the officer should use every tool possible to ensure that accuracy.
However, if the agency considers the officer a suspect, then the focus of the investigation shifts. A criminal investigation of the officer’s activity now focuses on the officer’s credibility. State of mind becomes an issue, and that becomes more important than the officer’s accurate recall of events. However, the credibility of the officer’s rendition of his or her state of mind is now also a credibility issue. “We don’t show suspects the video before we interview them, why should we show the officer?” assert those who view the investigation as a criminal investigation against the officer. (Maybe because we hire them to risk their lives to protect us and we buy them their guns?) But that reason falls short. The important thing is to satisfy the public critics that uses of force are fairly investigated to prevent police abuse. Officer accuracy takes a back seat to political expediency.
It is not hard to see which camp LAPD falls into. Officers are immediately separated, assigned a sergeant babysitter to prevent the officer from discussing the incident, and the officer is held until the interview is given. In the meantime, deputy district attorneys roll to the scene to see if there is a prosecutable case against the officer, inspectors general look over the shoulders of the investigators, and the Police Commission carefully reviews the foot-high report that is ultimately produced. Then, assuming you are not going to be booked, they critique your tactics!
Oh well, no one promised you a rose garden. It is not going to change.
Know the law, exercise good tactics, shoot only when necessary, and then shoot straight. After that, remain silent until ordered to talk, call the League, wait for your attorney, and as accurately as possible establish the record as best you can. Usually, it will work out. See you at the Use of Force Board.
You can find hyperlinks to the research mentioned in this article at www.warningbells.com.
Be legally careful out there.
