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Prosecutors Can Take Refuge in the Law

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eye on the news

Prosecutors Can Take Refuge in the Law

Clear ethical standards govern public release of videos of police-involved shootings. June 3, 2021
Public safety
Politics and law

A police officer shoots and kills a civilian. The shooting is captured by the officer’s body camera. Within hours, the media and activist groups demand that the police video of the shooting be publicly released, unless the police and prosecutors are hiding something. The police union maintains that the video should never be released, as a matter of protecting the officer. Should the prosecutor, who ultimately must decide whether the officer gets charged with a crime, release the video?

Law enforcement and the media have devoted considerable time to this question. Some argue that the videos must always be produced immediately in the name of transparency. Others believe that they should never be released. Prosecutors and law enforcement across the United States have no uniform practice. But ethical rules for prosecutors already provide the answer, which is straightforward—though you wouldn’t know it from listening to the public debate that tends to surround these episodes.

Prosecutors are forbidden from releasing (or letting police release) any evidence that would prejudice a fair trial. Rule 3.6(a) of the Model Rules of Professional Conduct states, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Specifically directed at prosecutors, Rule 3.8(f) states, “The prosecutor in a criminal case shall . . . except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.” (Emphasis added.)

Most states have adopted some version of these rules for prosecutors. Thus, prosecutors cannot make statements or release materials to the public that could affect the trial or increase public condemnation of the accused. And prosecutors have a duty to enforce the same rules for “law enforcement personnel” associated with the prosecutor.

It’s hard to imagine something more likely to taint a jury pool than public release of the video of an officer-involved shooting during a criminal investigation. The video angles may be limited, distorted, or confusing. The context of the shooting regarding what the officer and the civilian were doing prior to the video is absent. Once released, the video can be reduced to certain portions or even manipulated to provide false information, then re-circulated via traditional media or social media. For anyone who views the video of the shooting prior to trial, it would be difficult not to reach a firm conclusion about the guilt or innocence of the officer.

Before a charging decision has been made, therefore, prosecutors and police may not release videos of officer-involved shootings. This is not a discretionary decision—it is an ethical mandate for prosecutors, and breaching it leaves a prosecutor in danger of both an ethical infraction and irrevocably compromising a jury pool, making a fair trial impossible. Moreover, it is the prosecutor’s burden to make sure that this restriction is adhered to by the police. (Of course, the prosecutor can’t prevent civilians who may have recorded the incident from releasing their own videos.)

If the prosecutor decides at the end of an investigation to charge the officers, the same ethical rules apply. The video is now evidence that will be played and analyzed at trial. The release of the recording with charges pending is likely to result in adverse pre-trial publicity and is still an ethical breach when the matter is as serious and well publicized as an officer-involved shooting.

The rules of professional conduct don’t address the release of such a recording if the prosecutor decides not to charge the officers. The best practice is to release the recording with a written report. This lets the public evaluate the same recording viewed by the prosecutor in making the decision not to charge, along with the context provided by the written report. Exceptions may apply, particularly where the family of the person killed asks that the recording not be released and concurs that the shooting was justified.

The inconsistent behavior of prosecutors on the release of officer-involved shooting videos does not arise from lack of familiarity with the rules. Every prosecutor’s office is awash in video evidence of murders, rapes, assaults, and other crimes. The release of any of these videos to the press would lead the news every day if released. Prosecutors don’t release such videos because they know that such public disclosures would taint future trials. The only time such recordings are legitimately released is if there is a need to identify a suspect or if a suspect is a fugitive, and the prosecutor is requesting public help to identify or capture him. In these cases, the rules explicitly permit such releases because they “serve a legitimate law enforcement purpose.”

To make this point even clearer, prosecutors show little confusion about their duty not to release such shooting videos in cases where a police officer is shot and killed by a civilian. Every prosecutor carefully makes sure that these videos are not released publicly prior to any trial, knowing that the release could seriously compromise a murder trial, or at least require a change of venue.

The same rules apply when a police officer shoots and kills a civilian. Unfortunately, in some officer-involved shootings, the worst aspects of an unholy trinity—politics, race, and the media—come together in a frenzy to cast blame and make what may be premature judgments.

Prosecutors themselves can be at fault for the confusion surrounding the release of videos. If officer-involved shootings were resolved with an announcement of charges or no charges within 30 days, it would be much easier for prosecutors to ask for some patience and then make a considered decision on releasing the video. It’s hard to think of a shooting investigation where a prosecutor has more evidence immediately available than an officer-involved shooting. The prosecutor has the weapon, the shooter’s identity and full background, often multiple other law-enforcement witnesses, recordings, immediate notification and crime-scene processing, and usually the statement of the shooter. In an average homicide investigation, with all that information available, a prosecutor should be able to make a charging decision within days. Exceptions exist for truly complex shooting scenarios, but they are few and far between.

Instead of expeditious charging decisions, the public has seen instances like the Laquan McDonald shooting in Chicago, where the city delayed the investigation of the shooting for over a year before the production of the video revealed what was being hidden. Any competent prosecutor could have made a charging decision in the McDonald case within a week of seeing the evidence. Such unnecessary investigative delays combined with the nature of the eventual revelations have led to a distrust of prosecutors and the police.

Prosecutors facing public demands around a controversial shooting case should take refuge in the safe harbor of these ethical rules, which can be followed with little difficulty: during a criminal investigation of law enforcement personnel for an officer-involved shooting of a civilian, the video recording controlled by law enforcement may not be released. The same rule applies if an officer is criminally charged in the case. If a prosecutor decides that no charges will be filed, the video can (and should) be released. Any deviations from these rules represent ethical violations by prosecutors and the police—and should be sanctioned accordingly.

Photo by Sebastian Gollnow/picture alliance via Getty Images

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