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Publication Title

Washington University Law Review

Abstract

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep- seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars in federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability—as helpful for gathering evidence against individuals in cases of resisting arrest, drug possession, vandalism, and so on.

This disturbing drift has undermined the promise of body camera programs in two ways: first, police control erodes accountability. Police control the videos themselves and resist disclosure, making it impossible for communities to hold them accountable for misconduct.

Second—the chief focus of this article—using these videos in ordinary law enforcement exacerbates the pernicious discovery asymmetry in the criminal justice system, affording police and prosecutors early access to these videos, but depriving defendants and their counsel of the very same evidence. Defendants once again find themselves pleading guilty or preparing for trial without access to the evidence against them or worse, evidence that might be exculpatory.

We therefore propose a solution: shift ownership and control of police body camera videos from police departments to a neutral police accountability agency. This move would solve both problems: first, this new agency would disclose videos to the public and the media, especially in high-profile cases, according to neutral rules calibrated to enhance accountability. Second, this agency would disclose these videos in ordinary criminal cases to both sides equally—affording criminal defendants timely access to crucial evidence, which will promote a more just, accurate, and efficient criminal justice system.

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