Today, I was in Judge Blount’s courtroom for a probation revocation. I watched a hearing involving an inmate (not my client) who is serving a sentence for battery. Judge Blount had ordered him not to contact the victim. He had other plans and called her roughly 70 times from the jail. The prosecution had an airtight case. Not only were there call logs of every number he had called using his jail account, there were high quality audio recordings of each call. Some people in the audience were shocked that every call from a jail inmate was recorded. I was not. Recording equipment is ubiquitous. As I type this, there are five video cameras within five feet of me. All of them were included in phones, computers, and tablets I purchased with no intention of buying a video camera. Never before have so many people recorded so many things so cheaply.
Henry County’s extensive surveillance apparatus has even snagged attorneys. Recently, a lawyer was jailed for contempt of court after falsely telling a judge that she had a scheduling conflict. Courthouse video footage showed her filing documents in the clerk’s office during her alleged conflict. Every court in McDonough has an extensive video surveillance system. The McDonough City Court also has microphones in its common areas. Almost every court proceeding is audio taped either by the court reporter or, if there is no court reporter, by the court itself.
Here is a list of other things which are typically recorded:
- Virtually every patrol car in Henry County has a “dash cam” that captures a roughly 45 degree arc centered on the middle of the car’s hood.
- Virtually every patrol car in Henry County has a microphone and/or video camera which records what suspects do after they are taken into custody. Sometimes, officers will leave defendants in the patrol car alone with their cell phone in hopes of obtaining incriminating statements.
- Almost all common areas at the jail are monitored by digital video. This includes the booking area. It can be useful to pull this tape in DUI cases.
- All 911 calls are audio recorded.
- All communications between officers in the field and dispatch are audio recorded.
- Many officers who are trained to investigate DUIs have cameras mounted in the flash lights they use in these investigations. The flash cams can also record audio.
- Some interview rooms at the police precincts have audio and video recording equipment. Others, apparently, do not.
- Some gas stations and other businesses have street facing cameras that capture which cars passed a given location.
- Virtually any big box store has dozens of cameras within the store and a few monitoring the parking lot.
- If your cell phone is GPS enabled, there is a fairly precise record of its location. Even if it is not GPS enabled, your carrier has a record of which towers it communicated with. This record can be used to establish the phone’s location within 5 or 10 miles.
Some things still are not recorded. Relatively few Henry County officers have body cameras. Accordingly, if an officer comes into your house, or is canvassing a street for witnesses, it is unlikely those interactions were recorded. As previously noted, some interviews of criminal suspects still are not recorded.
Overall, I’m glad recording equipment has become so pervasive. Early in my practice, many criminal defendants were subjected to “swearing contests” where criminal liability hinged on whether an officer or the suspect was telling the truth. This is not a good situation to be in. Many jurors (and most judges) trust police officers more than criminal defendants. A criminal defendant who argues that a cop lied and is convicted can expect a harsh sentence. Police officers knew this. Some officers knew that they could get away with the occasional lie in a big case.
The ubiquity of recording equipment helps criminal defendants three ways. First, officers who know they are being recorded are less likely to misbehave. Second, the best way to predict a defendant’s odds of conviction is by watching a video of the incident. After I watch a DUI or shoplifting video, I have a very good idea of what a jury will do. Watching a video early in a case helps a client make the plea/trial decision when there is still time to accept responsibility and pursue mitigation. Finally, juries are coming to expect that law enforcement should record most of what it does. The absence of a video seems dubious when most jurors have a video camera in their pocket.
Finally, if law enforcement fails to collect available video evidence, this weakens the prosecution’s case. Suppose my client is accused of a non-fatal drive by shooting. Several sources of video might corroborate or disprove guilt. Did any of the neighbors have video surveillance systems? Did any of the local stores have street facing security cameras? Could one drive to the crime scene without passing these cameras? Did the defendant have a cell phone? Was it GPS enabled? Where was it at the time of the shooting? Which towers did it communicate with?
In a murder investigation, law enforcement may run down all of these leads. In a non-fatal case, they rarely do. When the State has the burden of proof, its failure to collect available evidence can be the best path to an acquittal.
Henry County Criminal Defense Blog 