Missing Police Body Camera Videos: Remedies, Evidentiary Fairness, and Automatic Activation

A movement toward police regulation by recording issweeping the nation. Responding to calls foraccountability, transparency and better evidence,departments have rapidly adopted body cameras.Recording policies require the police to record more lawenforcement encounters than ever before. But whathappens if officers do not record? This is an important,growing area of controversy. Based on the collectionand coding of police department body camera policies,this Article reveals widespread detection andenforcement gaps regarding failures to record asrequired. More than half of the major-city departmentsin the sample have no provisions specifyingconsequences for not recording as required-andseveral have protections against discipline.The Article discusses how the labor-managementstructure of departments and the individual-blamenature of disciplinary processes render internaldepartmental enforcement of recording ruleschallenging. As the central framers of conduct rules forpolice, and as gatekeepers of evidence, courts have animportant role to play in addressing the missing videoproblem. The challenge is how to frame remedies thatavoid judicial inquiry deterrence: a reluctance toaddress missing video issues because it would entailmessy and costly collateral mini-trials on whetherrecordings are missing for legitimate reasons or due to officer malfeasance. This Article proposes threejudicial pretrial remedies that proceed from a moreadministrable evidentiary fairness perspective:exclusion of partial recordings, favorable inferences,and pattern and practice detection harnessing systemicfacts accumulated by courts in criminal cases