San Diego Local Community News

The Use of Personal Video Recording in Court and What it Means for You
With the arrival of the Digital Age, more and more people are finding it necessary to capture images in their environment; including public spaces and things occurring on the streets. When people see an incident happening, such as an altercation between civilians and law enforcement, they retrieve their camera phones to record the moment. Apart from sharing such footage on social media for entertainment or seeking social justice, these images and video recordings often come in handy in legal situations.
If you were involved in an incident where your rights could potentially be infringed upon, having footage of what transpired backs up your claims; for instance, being wrongly pulled over by the police and being harassed for no reason. Nevertheless, some recordings could be obtained unlawfully such as recording a conversation with a friend – sans their explicit consent – where they admit to wrongdoing. A Criminal Lawyer in Orange County can argue that such evidence is contentious, and the court has to determine if it can be admissible as evidence or be thrown out entirely.
California Laws on Personal Video Recording
The Constitution permits people to take pictures or video footage of things in plain view and public spaces like federal buildings, transportation facilities, public colleges, or football stadiums. You are also free to document the police and other government officials carrying out their duties even if officers are notorious for barring people from doing so. Some law enforcement officers are known to hassle and detain people for using their recording devices in public and more so when recording police activity. Officers should not force you to delete the footage and neither should they confiscate your phone or other recording devices. According to a US Supreme Court decision in Riley v. California, the court ruled that a police officer needs a warrant to search a cell phone, a law which has been upheld since June 2014.
However, if the police deem your actions as interfering with legitimate operations, they can order bystanders to stop recording or taking pictures of said activity. For example, they could be staking out a suspected sweatshop and taking photos could draw unwarranted attention that jeopardizes their operation. The judge leaves it upon law enforcement officers to determine what qualifies as interference or not.
While capturing images in public spaces is within your constitutional right, recording private conversations without getting the explicit consent of the involved parties is unlawful. This law excludes recording police officers in the line of duty, such as when they are arresting you, during a traffic stop, or when they interrogate you. Also, recording protesters on the streets or people delivering speeches in public is not unlawful.
What Should I Do When Being Arrested for Recording or Taking Pictures?

  • Even when the attending officers are infringing on your constitutional rights, do not resist arrest as they could use this against you.
  • Please note, being stopped by an officer when taking images or recording something is within the law until you ask if you are free to go.
  • If the officer detains you, make it known that you are aware of your rights to record in public spaces and that you don’t approve of them going through your phone.
  • Always remember, don’t let things escalate more than they need to and resisting arrest is a charge that law enforcement officers like to slap on suspects of criminal activity.
  • A Criminal Lawyer in Orange County can advise you to maintain silence and refrain from inviting any form of provocation until your legal counsel arrives.

When Can a Recording be Deemed Inadmissible in Court?
Secret recordings when a dispute is underway can be useful in explaining what transpired and which party is telling the truth and who is lying. However, many issues abound when processing personal data, and the court may decline to have this evidence submitted under the following circumstances:

  • When recording someone without their knowledge potentially infringes on their human rights
  • The person on record could pursue legal action for breach of privacy
  • Secret recordings are sometimes appropriate, but the recorder faces some consequences when a judge is deliberating on which party pays specific legal fees
  • When the tape threatens the other person’s data protection rights
  • Secretly recording conversations of employees may be perceived as a violation of the duty of shared trust and confidence

Bearing these instances in mind, legal experts highly recommend you first understand the possible problems in using unlawful recordings or CCTV footage obtained through covert means. Failure to do so means your evidence could be rendered inadmissible even when it could exonerate you from the charges being leveled against you. On the whole, personal video recording is useful in a courtroom, especially in cases involving police interactions where abuse of power is common.

  1. Recording Helps Amidst Rising Cases of Police Brutality

Law enforcement has always been accused of applying unnecessary force when arresting suspects and how they treat them in booking and the poor treatment of inmates inside prisons. In recent times, police brutality has come to the forefront after several incidences where the police killed unarmed black men, and this caused public outrage. Famous cases of Michael Brown, Oscar Grant, Philando Castile, Alton Sterling, and countless others triggered uprisings demanding the officers who shot these unarmed men to be apprehended, but justice is not usually forthcoming.
Even when these cases are presented before the court, judges are not always willing to follow through, and so these cases remain in the justice system, and may eventually be dropped. Case in point is the case of a white officer who killed an unarmed black man in Alabama in February 2016. During the incident, the officer and victim were twenty-three (23) years and fifty-eight (58) years, respectively. The victim fled a random stop-and-frisk, so the officer chased after him, shocked and beat him before shooting this man five times. The officer claimed he was defending himself from the suspected criminal. As the case heads to trial, eight judges have dropped out. A ninth judge will be presiding over this case which has now moved from Montgomery to Dale County.
According to a statistics website, ninety-nine (99%) percent of police brutality cases in 2001 did not end with officers being convicted of wrongdoing, and this sends a strong message that somehow, the police are above the law. It is imperative to remember that while protests in Ferguson and other places have quelled, this is no indication that America is any safer for people of color and especially black men. These people are subjected to relentless police abuse that often goes unnoticed and underreported until something awful like a shooting happens. A study published in July 2018 deduced that police are responsible for one hundred (100) firearm deaths per year. Last year, there were just twenty-three (23) days where the police did not kill anyone. There are proven solutions to curb this scourge, such as implementing policies in the use of force. Police departments that have done this have shown a significant decline in brutal force killings. Nonetheless, these policies remain unpopular among many police departments across the country.

  1. Recording Helps Because Police Business is not Just About Crime

Going by 2014 statistics, less than one (1) in three (3) black people killed by police were suspects of a violent crime and were supposedly armed. Those victims who were allegedly armed and violent represented thirty-one (31%) percent of fatal shootings, whereas sixty-nine (69%) were nonviolent and without a firearm. What’s more, the research found no correlation between levels of crime and the likelihood of being killed by the police, which is quite telling. Are the police wantonly shooting people even in low-crime areas?
Despite media coverage of incidents involving police shootings, data by The Bureau of Justice Statistics notes that not all cases are reported in the official police databases. The National Vital Statistics System is yet another resource that indicates discrepancies with what police databases have. The police are not mandated by law to report all killings to the national government and coroners routinely misclassify deaths caused by the police. With such anomalies and gaps by design, federal statistics on police killings and how the public understands them is relatively thin and therefore misleading.
There are independent efforts to bridge this gap in data collection spearheaded by journalists, activists like Black Lives Matter, and members of academia. Fatal Encounters is one such initiative that has proven successful in harnessing data from media coverage and combing through public records to gather data on every person killed by law enforcement. Armed with this more representative data, researchers can determine how people usually die when interacting with the police in different parts of the country and concerning race as well. Fatal Encounters noted there were nine thousand seven hundred ninety-five (9,795) police-involved deaths in the period between 2012 and 2018, which is a staggering number of fatalities that calls to question policing methods in this country.
In contrast with the figures above, Arrest-Related Deaths and National Vital Statistics System only recorded five hundred (500) deaths year on year. One could assume that underreporting of police killings is a calculated move to blind people from their brutality and perhaps prevent citywide or nationwide protests like what happened in Ferguson. Blacks and Latinos stand a much higher chance of being killed at the hands of police as compared to their white counterparts. The death rates for every one hundred thousand (100,000) men are as follows: 0.7 (whites), 1.0 (Latinos), and 2.2 (blacks) which means black men are three (3) times more likely to die during police interactions as compared to white men. The risk of death, however, varies per region as white risk is very high in Oklahoma and Latino risk is very high in New Mexico. When it comes to gender, men are ten (10) times more likely to be killed by police than women.

  1. Personal Recording is Essential in Proving Police Violence

As mentioned previously, the criminal justice system is often sluggish in prosecuting police officers involved in applying a brutal force that grossly harms suspects or even kills them. We have seen acquittals like in March 2015 where a jury that included black jurors found Michael Rosfeld of East Pittsburg not guilty of killing Antwon Rose. This verdict sparked protests as people seeking justice for the death of an unarmed black teen during a routine traffic stop. Such legal outcomes are common around the country, and the black community is painfully aware of these state-sanctioned acts of violence which rarely end in convictions for police officers. Not even the prevalence of video evidence is helping in the quest for justice.
In July 2017, prosecutors said they would not retry a Caucasian officer at the University of Cincinnati who had killed Samuel DuBose in 2015. Once again, this incident involved a police traffic stop as the victim was driving a car without license plates. After holding two trials that returned a deadlocked jury, the officer was cleared by the court and will perhaps resume his unlawful actions. Failure to hold such officers accountable for crimes promotes the national forbearance on violence against minorities and legitimizes the assumption that black people are dangerous. Police officers become accustomed to this notion right from the start of their careers as seen with the young officers – like Aaron Smith at twenty-three (23) years – who killed a middle-aged black man.
Implicit bias is widespread among civilians, but law enforcement officers must exercise caution as they carry firearms and have the power to stop suspects as per the legal guidelines and also upon their discretion. They must be acutely aware of how such biases can lead them to use excessive force on suspects who are perceived to be of a higher threat level. The use of body cameras has been touted as helping curtail the use of excessive force but constrained federal resources to thwart its implementation for purchasing the cameras and training officers. Without safety measures in place, black men will continue to be killed three (3) times their relative share of the US population.
Personal Video Recordings Can Help Your Defense
Retrieving camera phones and other recording devices is now an acceptable practice that is not merely for entertainment but for keeping law enforcement officers in check. Dashboard cameras are useful during traffic stops, but they may not capture all events, and they are prone to corruption where officers caught in wrongdoing are protected. Whenever possible, it is vital to record encounters with police, and if you don’t have the footage, your Criminal Lawyer in Orange County could find witnesses who recorded the incident or they could find the footage streaming online. Seeing how rampant police brutality is and how easy it is for them to go scot free, bringing video recording to court could prove your innocence, compliance, and if the officer acted within legal guidelines or not. The personal video footage could also have evidence of racial bias, such as when an officer makes statements filled with racial slurs. Therefore, in this modern age where the use of personal video in court is proliferating, we need to take advantage of the evidence or the lack of evidence provided by the recording to help you in your defense.

Latest Post

Get free tips and resources right in your inbox, along with 10,000+ others