Big Budget Productions with Limited Release: Video Retention Issues with Body-Worn Cameras
By Bradley X. Barbour
Since 2013, there has been growing support for police body-worn cameras in the wake of several high-profile and controversial encounters between citizens and law enforcement. The federal government has justified budgetary measures funding body-worn camera programs as a means to facilitate trust between law enforcement and the public through the objectivity of video footage—a sentiment supported by many lawmakers advocating for implementation of this technology. These policy goals, however, are stymied by a deficiency of police department policies and state statutes regulating the retention of footage and close adherence of states to the precedent of Arizona v. Youngblood, which holds that the destruction of potentially exculpatory evidence by the government not committed in “bad faith” does not violate due process. This Note analyzes the current landscape of body-worn camera video retention and argues for reform at the judicial and statutory level on how footage is preserved. It argues that courts should interpret Youngblood as allowing judges to impose the sanction of missing-evidence instructions—even in the absence of bad faith—as a remedy against the destruction of body-worn camera footage that occurs because of police policies and practices that limit protection of such footage. This Note also argues that states should move quickly to create statutes regulating the time periods in which body-worn camera footage must be retained while also balancing the logistical burden that high-volume video storage imposes on police departments.