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Publication Date

2017

Abstract

A movement toward police regulation by recording is
sweeping the nation. Responding to calls for
accountability, transparency and better evidence,
departments have rapidly adopted body cameras.
Recording policies require the police to record more law
enforcement encounters than ever before. But what
happens if officers do not record? This is an important,
growing area of controversy. Based on the collection
and coding of police department body camera policies,
this Article reveals widespread detection and
enforcement gaps regarding failures to record as
required. More than half of the major-city departments
in the sample have no provisions specifying
consequences for not recording as required-and
several have protections against discipline.
The Article discusses how the labor-management
structure of departments and the individual-blame
nature of disciplinary processes render internal
departmental enforcement of recording rules
challenging. As the central framers of conduct rules for
police, and as gatekeepers of evidence, courts have an
important role to play in addressing the missing video
problem. The challenge is how to frame remedies that
avoid judicial inquiry deterrence: a reluctance to
address missing video issues because it would entail
messy and costly collateral mini-trials on whether
recordings are missing for legitimate reasons or due to

officer malfeasance. This Article proposes three
judicial pretrial remedies that proceed from a more
administrable evidentiary fairness perspective:
exclusion of partial recordings, favorable inferences,
and pattern and practice detection harnessing systemic
facts accumulated by courts in criminal cases.

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