This article is surprised and upset that police aren't investigated for damaging police property, namely the cameras which are supposed to be recording them. But this is inevitable, given the incentives: police get little protection from the cameras, and are placed at greater risk of complaints sticking. (Let's not say legal action, since actual prosecution for misconduct of even the most egregiously felonious sort is very rare) Police chiefs have no interest in alienating their own officers. And nobody seems to have clear authority outside of that.
But there's an alternate legal solution, part of which would require a simple change to the laws mandating the cameras in the first place, and part of which is already in the hands of judges today. It's to use the legal notion of "adverse inference."
In court cases (both civil and criminal), there's a phase of discovery, where the sides can demand that the other side produce relevant documents and so on under court order. If you try to cheat at discovery, concealing or destroying evidence, there are a range of exciting
penalties available to the judge. (And given that trying to ignore or defy a court order is one of the best ways to end up with a very unhappy judge very quickly, this is not something you want to happen.)
"Adverse inference" is the mildest of these, and it's something a judge can order when a piece of evidence is "mysteriously" unavailable: that whatever that evidence was meant to prove, it will be assumed that what the other side claimed about it was true. (So if e.g. your financial records were subpoenaed in a breach of contract case to prove that you had earned more than you claimed on a deal, and you tried to fake their nonexistence, that would count as evidence that you had earned exactly what the other side had claimed you had)
If a body or dashboard camera failed due to the actions of the police officers in question, then the resulting lack of evidence isn't and shouldn't be neutral, as far as the law is concerned. It's a deliberate attempt by a party to a case to thwart the collection of evidence, and courts should treat it as such.
The relevant change in the law would be to create a presumption
that these camera failures are not accidental, so as to put the burden of proof on the officers in question instead of on whoever is up against them in court.
(For those who are legally minded: a failure to produce evidence from body or dashboard cameras due to damage to or nonoperation of the camera, or loss of evidence outside of the retention processes defined for said footage by statute, would create a rebuttable presumption of spoliation, which the judge would then have leave to remedy according to the relevant rules of procedure in that court)
I'm not certain whether this would be a good or bad idea. It's a powerful enough change to the evidence system that it's honestly dangerous,
and one would have to think through the potential consequences, pro and con, very carefully. Such a law would essentially place the burden of proof on the police, whenever evidence was unavailable for a suspicious reason, that they had not deliberately sabotaged it.
If cameras actually do
fail fairly regularly without sabotage, for example, this would be a terrible law. On the other hand, if it is in fact the case that "camera failure" is almost always a sign of monkey business, this would be a quick way to straighten it out. Likewise, if standard operating procedures were worsening the situation – e.g., cameras which break naturally aren't getting fixed for a long time because nobody cares, or the handling of camera evidence is sloppy and frequently loses things – then a law like this would change priorities very effectively.
And of course, for deliberate destruction of evidence to conceal felonies, I have no sympathy whatsoever. A crime committed under color of law is worse,
not better, than one committed in the usual fashion.
h/t +Alex Scrivener