Now imagine a serious case. An eight person person team does an entry into a drug house each officer with a personal body camera. Drugs, money, and a dead body are found inside. The whole place is video taped to preserve it. There are also two hour sessions of questioning for each of the three live people arrested in the house; each is video recorded. About ten other people are questioned and recorded about the dead person in the house; each averages an hour. Then each of the people arrested in the house goes to jail and proceeds to make a couple phone calls a day each of for the six months prior to trial - all of which are recorded. Let's call this one 100+ hours.
Generally, all this recording is good. It provides about as impartial a witness as could be and is probably the best tool out there (short of basic morality) for guaranteeing police color within the lines. However, it has led to a massive problem with evidence.
Consider for a moment the obligations of prosecutors. Every prosecutor is required to turn over to the defense evidence under the control of the government's investigative team that tends to prove the defendant did not commit the crime and evidence which would tend to impeach a prosecution witness. As well, at least in Virginia, the defendant's relevant statements must be turned over by the prosecutor (I assume other States have the same rule).
So, you're a prosecutor who has hundreds upon hundreds of hours of video and audio recordings. It is not possible to sit and watch every bit of video in every case. Consequently, who knows if there's some exculpatory or impeachment evidence in the third hour of an otherwise worthless recorded interview with the defendant's crazy Aunt Suzie? What's the obvious solution for the prosecutor? Turn over every bit of audio and video in every case.
Well, that sounds good and fulfills the constitutional requirements, but as a matter of practical reality what it accomplishes is the dumping of hundreds upon hundreds of hours of video and audio recordings on the defense attorneys to watch. There's no way they can do that either. This has led to calls for "meaningful" constitutional disclosure which translates as "the prosecutor should view all the videos and tell me if there is exculpatory or impeachment evidence on them." So far, this hasn't been accepted as the law and for reasons both objective (not enough hours in a week) and subjective (prosecutors and defense attorneys will never agree as to what is exculpatory) it is not a good solution. In fact, the "hand it all over to the defense attorney" way of handling it at least eliminates the subjectivity problem since there would be no initial screening by the prosecutors and only the defense attorney's view of what is exculpatory would apply. However, the objective reason for failure happens here too; there just aren't enough hours in a week for a defense attorney to go through every video for every case and fulfill all the other obligations that come along with a private practice.
What's a real and practical solution that's as fair as possible? There has to be a pretrial sorting of some sort and I'm sure others are working on a solution. Nevertheless, I sat down and put together a first draft of a statute I think could put some controls in place:
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What's a real and practical solution that's as fair as possible? There has to be a pretrial sorting of some sort and I'm sure others are working on a solution. Nevertheless, I sat down and put together a first draft of a statute I think could put some controls in place:
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§ 19.2-9999 Use of
Recorded Audio or Video in Trial
(A) Definitions
(1) Recording –
An audio or video account of a conversation or activity preserved on
any medium on any device capable of preserving the audio or video so
that it can be listened to or viewed at a different time and/or
place.
(2) Relevant
Recording – A recording in the possession of the Attorney for the
Commonwealth or the investigative team (a) that is a statement made
by the defendant pertaining to the charged criminal violations, (b)
that is a statement made by another pertaining to the charged
criminal violations, (c) that would tend to exculpatory, (d) that
would tend to impeach a witness for the Commonwealth, or (e) that is
a visual representation of occurrences pertaining to the charged
criminal violations.
(3) Investigative
Team – Any person or persons employed by the Commonwealth of
Virginia and tasked with an investigation of the individual charged
or the criminal act before the court. Absent a showing of
extraordinary circumstances, an investigative team is presumed to
have access to all recordings in the possession of any agents in its
employ, any persons in its department, any cooperating law
enforcement agencies from outside Virginia, and any cooperating
federal agency.
(B) Disclosure by
the Commonwealth – The Commonwealth shall be required to give
copies of all relevant recordings to the defendant no later than ten
days before trial. If a relevant recording is turned over to the
defendant later than ten days before trial the sole remedy shall be
for the defendant to receive a continuance unless there is a showing
of bad faith. If the case has been continued twice because of late
disclosure of relevant recordings there shall be a rebuttable
presumption that a third late disclosure is in bad faith.
(B1) Disclosure by
the Defendant – Upon receipt of relevant recordings from the
Commonwealth, the defendant shall give copies of any other recording
he intends to use at trial to the Commonwealth no later than five
days before trial. If a recording is turned over to the Commonwealth
later than five days before trial the sole remedy shall be for the
Commonwealth to receive a continuance unless there is a showing of
bad faith. If the case has been continued twice because of late
disclosure of recordings there shall be a rebuttable presumption that
a third late disclosure is in bad faith.
(C) Case in Chief –
No recording shall be used by a party in a criminal trial unless such
evidence has been turned over to the other party and the specific
portion of the recording that is going to be used has been
identified. This identification shall occur no later than three days
before trial. If identification occurs later than three days before
trial the sole remedy shall be for the receiving party to obtain a
continuance unless there is a showing of bad faith. If the case has
been continued twice because of late identification there shall be a
rebuttable presumption that a third late identification is in bad
faith.
(D) Cross
Examination or Rebuttal – No recording shall be used for cross
examination or rebuttal unless such evidence has been disclosed to
the other party. Specific identification of the portion of the
recording to be used in rebuttal or cross examination shall not be
required prior to its use in trial.
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The meat of it is obviously in C and D and I'm fairly satisfied with them. The definitions could probably use a little sharpening. It's surprisingly difficult to define "recording" without using "record" (at least for me). Feel free to offer suggestions or, if you're the bold type, to grab your state senator or delegate (representative for those of you poor unfortunates who live outside the Great Commonwealth of Virginia) and tell them that they need to pass this statute. Make sure you get my name somewhere in the bill though. Personally, I'd suggest "The Lammers Bill of Ultimate Solutions and All Around Awesomeness", although I could be talked into cutting a couple words out.
Seriously though, bills or court rules along this sort of path are quickly becoming a necessity. As more and more recordings are becoming more and more ubiquitous in courtrooms something has to be done. And the solution to more and better evidence isn't to dismiss cases despite what some professors might urge. See Theories of Prosecution, 108 Calif. Law Rev. ___, pgs. 13-14 (2020). One suspects that those who propose such solutions are often operating with unclean hands - urging all police officers to be required to have bodycams to prove what's actually happening on the street and then using the fact that there is so much video to urge that crimes should not be prosecuted because viewing all the videos is too much of a barrier for prosecutors. There are times when reality gets out ahead of the law and we have to do something to provide a parctical solution. This is one of those times.
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