Policing the Admissibility of Body Camera Evidence
By Jeffrey Bellin & Shevarma Pemberton
Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just threw something into the bushes” or “your breath smells of alcohol”—have the potential to be convincing evidence. Their admissibility is complicated, however, by conflicting currents in evidence law.
Oral statements made by police officers during an arrest, chase, or other police-civilian interaction will typically constitute hearsay if offered as substantive evidence at a later proceeding. Yet the statements will readily qualify for admission under a variety of hearsay exceptions, including, most intriguingly, the little-used present sense impression exception. At the same time, a number of evidence doctrines generally prohibit the use of official out-of-court statements against criminal defendants. This Article unpacks the conflicting doctrines to highlight a complex, but elegant, pathway for courts to analyze the admissibility of police statements captured on body cameras. The result is that the most normatively problematic statements should be excluded under current doctrine, while many other statements will be admissible to aid fact finders in assessing disputed events.