Cameras, courtrooms and controversies
How digital evidence culled from casual or business use is providing an evidentiary treasure trove for law enforcement and prosecutors
The young man in the red shirt gently coaxed the gray and white kitten over to him. After petting the stray, the man reared back and kicked the small animal as hard as he could, then laughed as his friend captured the incident on video. Later the friend posted the entire thing on Facebook.
After that vicious performance made the rounds, a cat-loving Brooklyn resident figured out where the incident took place and, working with friends, helped police find a viable suspect in a 21-year-old repeat offender who was soon arrested and charged with animal cruelty.
He’s not the only one to go down due to the growing presence of cameras in everyday life. Even big names are finding that the proliferation of digital “eyes” can help police resolve cases. Aaron Hernandez, the former professional football player who stands accused of murder, provides a first-rate example of someone facing serious jail time based on the availability of ordinary digital evidence.
Prosecutors in Hernandez’s case say they have footage of the defendant handling a gun inside his own home prior to the homicide, as well as additional video of the former Patriots’ tight end with the man he is accused of killing as the pair entered the scene of the crime. Circumstantial? Sure, but as evidence, it’s crucial to a successful prosecution. Now, prosecutors, as well as experts, say that officers should routinely anticipate digital evidence being available as camera phones and CCTV become as common as street signs.
The legal aspect
Nowhere is the current legal landscape changing faster than in the digital realm. As increasing numbers of cases hinge upon corroborative video and/or audio, it’s inevitable the courts will tackle the issues emerging from that association, from chain of custody to tampering with and altering digital evidence to admissibility. And, as is frequently the case with new technology, it’ll take years to work through the legalities.
Norm Pattis, a leading U.S. defense and civil rights attorney based in Connecticut, says both police and prosecutors need to exercise care when using digital evidence obtained from third parties. “A cautious prosecutor will get a warrant even if the (individual) agrees (to hand over evidence) in order to avoid questions down the line.” In other words, you should always get a search warrant for digital evidence, even if you have the owner’s permission to seize it. There’s no such thing as being overly cautious when treading this new ground.
Written standards are also vital. Pattis says one dilemma he’s confident agencies will face if they haven’t already is the exigent seizure of digital evidence, such as confiscating cell phones at a crime scene. Having a written policy’s a good idea.
Consider this: a crowd gathers at a homicide or other major crime where witnesses have captured cellphone video. Authorities arrive and immediately realize that bystanders most likely possess valuable evidentiary video. What should they do? What would you do?
Pattis says agency responses will vary from jurisdiction to jurisdiction. Some will grab the evidence and hope for the best because they’re more worried about resolving the criminal case than they are a civil lawsuit. Others, terrified of lawsuits, will fail to take custody of the evidence and run the possibility of losing it. No matter what the decision, Pattis says, even if evidence is obtained through illegal methods, it may not automatically be disqualified, but it shouldn’t be left to random decision-making. His advice is to explore the issue with your prosecutor’s office before a situation arises, not after. Remember, being prepared isn’t only good advice for Boy Scouts.
So, at a minimum, legal experts agree that when seizing digital evidence, police should:
- Make certain it’s lawfully obtained and/or meets the standards of admissibility in the agency’s court system,
- Ascertain that it has not been tampered with and continues to offer a true and unaltered version of the events in question,
- Preserve both the integrity of the evidence and its chain of custody, and
- Develop a written policy.
The video effect
Former Oakland Police Sgt. Steve Lovell acknowledges objections to police taking custody of private data stored on personal devices, but he says his own professional history gathering digital evidence has been drama-free.
“I have collected video evidence from shootings, vehicular homicides and many other felonious acts. This type of evidence is very creditable for jurors to accept and has become (a) very common part of modern policing,” says Lovell, the president of Seattle-based VIEVU, a firm that manufactures and sells professional wearable camera devices.
Lovell points to the abundance of digital evidence collected in connection with the Boston Marathon bombing as an example of the way the public can and will cooperate with law enforcement authorities. And he’s optimistic about both the future and its effect on evidence-gathering. “I think the overall impact will be positive. We are in the digital age of documentation, and as that expands the civilian communities will most likely share captured pictures and video in a very fluid manner with their local police agency,” Lovell says.
Making the best—and worst—of the situation
Sometimes digital evidence can accomplish the opposite of a department’s goals. In 2009, an NYPD detective found herself indicted on three felony perjury charges following a drug arrest when the defense found video evidence contradicting the officer’s testimony. The officer told a grand jury that she and her partner had followed a defendant to his apartment and discovered a large amount of marijuana. Civilian surveillance video revealed the detective’s story was flawed, and that the officer entered the defendant’s home illegally. Charges were dropped against the defendant, while the officer was later convicted of perjury.
Police should keep in mind that the proliferation of public cameras offers many unforeseen “opportunities” — from exposing bad police work, to forging public-private partnerships. Overall, American cities have been slow to populate with security surveillance; we’re still bridging the gap closed by European cities such as London, which has one of the most sophisticated CCTV systems in the world. But some U.S. locales, like Atlanta, are not only using CCTV, but finding ways to capitalize on it.
The Atlanta Police Foundation, a nonprofit organization that helps close the divide between government and the private sector with the mutual goal of making Atlanta safer, launched Operation Shield, which allows central monitoring by “smart” analytical software, then provides a platform for notifying the proper authorities, as well as the public, when appropriate. The result? Enhanced crime-solving capabilities and a stronger bond between law enforcement and the community they police.
Tech solutions to tech problems
William Kilmer, CEO of publicengines.com, a company that offers predictive solutions like crime mapping to aid officers in crime analysis and reduction, says there are solutions to help agencies more easily tap into the public’s technology. One of those solutions is a product known as TipSoft, which allows individuals to anonymously provide police with information via the Web, text or through a smart phone application.
Following the Boston bombing, “there was a high level of interest in being able to source information from the public in Boston, as well as a very high level (from the public) of trickling information back into the agencies to help the investigation,” Kilmer says. Products like TipSoft help make getting the word out and collecting that information much easier. “We were actually approached by (a police agency) to help them identify what cameras are out there. When law enforcement agencies see that a crime has been committed, they knock on doors to help solve it…and ask if they have cameras that might have caught (the criminal act),” Kilmer says.
The California agency wanted to simplify and speed up the old-fashioned door-knocking process. Kilmer says his company developed a voluntary registration process with information that police can access, but still keep private, helping them to locate cameras that might aid in resolving crimes.
Former Pittsburgh detective Chris Vendelli, who now operates his own internet marketing firm, ProFromGo, worked both major and computer crimes. Vendelli says the great thing about video is that it’s a reliable witness that won’t balk about testifying. He recalls one successful prosecution in which a suspect fled the scene of the crime, passing through the range of four or five business security cameras. Police were able to reconstruct his flight path and, by doing so, find valuable evidence that they would otherwise have not known existed.
But as great as video evidence may be and as much as it can help a case, Vendelli points out that it’s only part of a good investigation. Agencies still need skilled investigators. “It’s just another tool. Investigative work hasn’t changed in that’s it’s an acquired skill. What has changed is that rather than going out and talking to 100 people, we look for video cameras on the sides of buildings in business areas or even in homes, and knock on the door and ask if we can take a look at that video…and you might be surprised at what you might find,” he says.
And looking at collected video, while it seems elementary, also requires in many instances, a lot of dedication. Vendelli says he and his partner viewed the same videos many times over, “because it could be awhile before something pops out at you.”
As for the future, well, experts like Kilmer and Vendelli believe storage capabilities will continue to increase so that police can go back much further in time to locate evidence. They also believe that civilians will become more and more accustomed to being videotaped on a regular basis, resulting in a larger pool of evidence.
And while civil libertarians and the courts continue to debate digital surveillance issues, law enforcement will almost surely benefit from the growing presence of that evidence.
