Video taping by police has been a hot news topic lately. Most departments now have policies requiring officers to video citizen interactions. Unfortunately, it is still too common for officers to refuse to do so. How can we as a society force officers to follow the policies we have enacted to protect citizens and police? One way is for jurors to find defendants not guilty when officers fail to follow their own polices and procedures - whether it relates to videotaping or other practices.
A study of Rialto, California police shows that the first year cameras were introduced the number of citizen complaints against police officers fell by 88 percent over the previous year, and use of force incidents fell by almost 60 percent over the same time period.
Video evidence can be some of the most useful and objective evidence a jury can see to determine the facts of a case. This is especially true in drunk driving cases where officers often claim excessive weaving or other patterns of driving that forms the basis for their car stop. Why wouldn’t an officer press the record button to document his allegations? How can citizens send a message to police officers that recording their allegations are expected - especially when their own department practices and procedures require them to do so.
What can a Juror do?
American colonists were so angered by the denial their right to trial by jury (which criminal defendants in England were permitted) that they mentioned it in the Declaration of Independence when they accused the King of England of making “Judges dependent upon his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” This, they argued, led to the King “depriving us in many cases, of the benefits of Trial by Jury.”
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to trial by jury. The United States Supreme Court commented on the importance of the jury in the landmark case Duncan v. Louisiana.
In Duncan, an African-American young man was charged and convicted of simple battery and sentenced to 60 days in jail. He appealed on the grounds that his right to a jury trial was denied. The U.S. Supreme Court overturned his conviction and ruled that States must give criminal defendants the right to a jury trial in all but “petty crimes.” Petty crimes are essentially crimes where the defendant faces a maximum of six months in jail and a fine up to $500.
Justice Byron White, in writing the opinion in Duncan explained that “Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary, but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” (emphasis added).
Lysander Spooner - a legal theorist from the 19th Century - explained that jurors have the right and obligation to judge both the defendant and the law when he wrote that “If the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.”
Even Thomas Jefferson suggested that a jurors responsibility is to judge the rightness of the law, and of the government’s actions in a case when he penned, “It is left...to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact.”
While many pundits and prosecutors rage about juries who acquit a defendant who arguably - or even blatantly - violated the law when the jurors disagreed with how the government acted in a case, the fact is that each juror is defending the constitution they swore to uphold. In a letter to Thomas Paine in 1789, Thomas Jefferson said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
With video equipment readily available today there is no excuse for a police officer not recording the defendant’s actions. This is especially true when a defendant faces a lifetime of consequences for a criminal conviction - as they do in DUI cases.
History has shown the only way to change a government’s actions is to change their outcomes. The way to change the outcome in these cases if for jurors to find a defendant not guilty, thus speaking as a voice of our neighbors the jury tells the government that excuses for sloppy police work will not be tolerated when the freedom of our citizens is on the line.