Technology and the Future Practice of Law The Hidden Costs of Body Camera Technology by Robert Bauer Advances in technology have had an overwhelmingly positive impact in many areas of the practice of law. Improvements in DNA analysis of previously untestable material have led to the exoneration of dozens of wrongfully-convicted prisoners. Case management software has allowed greater effi ciency through automation of scheduling and tasks. It is now far cheaper and signifi cantly more accurate to use technology-assisted review in e-discovery than to enlist an army of human reviewers. While recognizing these clear ben-efi ts, the hidden practical, fi nancial, and ethical costs are not always given the consideration they deserve. An example of these hidden costs can be seen in the use of body-worn cameras in criminal cases. The implementation of body-worn cameras, and the online systems that allow their videos to be easily catalogued, viewed, and distributed, has made a great impact in criminal cases. Attorneys, judges, and juries were not present when the alleged crime occurred, or even in the immediate aftermath. Before the use of body-worn cameras, there was occasionally store surveillance or a witness with a cam-corder, but this was more the exception than the rule. This often meant that to determine guilt, the judge or jury had to rely heavily on whether they believed that the testimony of a single offi cer, often the only witness for the prose-cution, was complete and accurate. A by-the-book arrest could be undone by nervousness on the witness stand, and a charming enough offi cer could be quite convincing despite what actually happened. With recent allegations in the news that police in Florida 1 and Maryland 2 have been caught planting drugs by their own body-worn cameras, doubt can arise that even honest offi cers are www.vsb.org telling the truth. When there is an accu-sation that contraband was found, that a driver performed poorly on roadside fi eld sobriety tests, or that an incrimi-nating statement was made, body-worn camera footage can help a fact-fi nder to reach their own conclusion about what occurred and whether they believe it beyond a reasonable doubt. These videos also improve the effi ciency of criminal litigation. Every defense attorney and prosecutor wants to know ahead of time if there’s a critical problem with their theory of the case. And, while having a duty to seek justice rather than merely to advocate for conviction, prosecutors are likewise still often in the position of deciding wheth-er to proceed with a case based solely on whether they believe the testimony of someone else. When each attorney can observe whether something occurred, this corroboration is a tool that helps the defense attorney to fulfi ll his duty of advising his client and the prosecutor to fulfi ll her duty of only prosecuting cases where she believes there is probable cause. As benefi cial as this is, it comes at a cost to both the prosecution and the de-fense. We are not yet at the point where a computer has been trained to analyze video and identify either confessions or constitutional violations, so a single encounter entails the review of videos from a half-dozen or more offi cers, each of these running for an hour or more. Consequently, viewing the footage of even a single misdemeanor assault or DUI case can take an entire day. Most cases do not contain nearly so much material, but it is the rare crimi-nal law practitioner who only handles a handful of cases per week. This abun-dance of material, either for one case or in the aggregate, poses ethical and practical problems for both defense attorneys and for prosecutors. A prosecutor has duties under both Vol. 68 | August 2019 | VIRGINIA LAWYER the Constitution and the Virginia Rules of Professional Conduct to disclose in-formation that is exculpatory, useful for impeachment, or has the potential for either use. Faced with these interrelated requirements, and also the inherent diffi culties in reviewing all videos prior to trial, a prosecutor has several options. One is to review the footage from the most-involved offi cers, provide copies of everything that was recorded to the de-fense, and hope that she has not missed anything that she is required to have disclosed. A second option is to take her work home with her and spend her evenings away from her family so she can watch almost-certainly redundant videos. When a prosecutor’s offi ce fi nds that these additional duties are more than it can handle, while still giving each case the attention it deserves, it can either reduce the number of cases it chooses to prosecute, or it can try to hire more attorneys. Both options have hidden costs – not prosecuting the case itself can mean that another agency must pick up the slack, and hiring more attorneys just means that a higher budget is needed in order to ethically manage the same caseload as before. Defense attorneys also bear an Technology continued on page 59 Robert Bauer is an assistant commonwealth’s attorney for the City of Richmond and a former criminal defense attorney. He is a member of the VSB’s Special Committee on Technology and the Future Practice of Law and of the Justice and Professionalism Committee of the Virginia Association of Commonwealth’s Attorneys. He has a wife who has just fi nished law school, four young children, and spends a large amount of time watching body-worn camera videos. 43