Jan 202014

Comment by Bob Orleck on article in vtdigger.org



 Bob Orleck comment

The state’s attorneys and sheriffs are justified in opposing the bill that would require videotaping of police interviews.   I just think they put forth the wrong arguments in opposing it assuming the article reflects totally their feelings.

Legislators should understand that such requirements endanger us all including the safety of them and their loved ones and realize there are adequate safeguards in the system to protect innocent people. The pendulum has gone too far in favor of the criminal and the excuse that such restrictive laws prevent the conviction of innocent persons is lacking.  No system is perfect, especially those run by humans but we have more than adequate safeguards built into the system already.

Let me explain.  When you stop to consider what it takes to get a conviction, the above might be clearer.  The proposed law is not making the criminal just system work better but will slow it down like a virus that makes a computer run poorly.

First of all, when a crime is committed, the criminal must be apprehended.  Most do not do these deeds in broad daylight in the view of many witnesses.  To apprehend the criminal there must be investigations, interviews, leads followed and physical evidence gathered along the way.

Once the case is solved it is not up to the police to determine what the charge will ultimately be or even if there will be a charge officially filed.  That decision belongs to the prosecutor who must review the evidence and follow his oath that he will do justice and if he does the following will result.  If he believes the person is guilty but he does not have sufficient provable evidence, he will not bring the charge.  If he believes the person is not guilty but the evidence seems to point to the possible guilt of the person, he will not bring the charge.  If he is both convinced of the guilt of the person and has the evidence, then he will charge.  The case is then brought under the scrutiny of the courts.

Before there is even an adjudication of guilt or innocence, judges can be asked to look at the evidence to determine if there is probable cause to even have brought the charge.  Or in many cases the matter is put before a grand jury to determine if probable cause exists.  If there is a failure at this point the case goes no further.  If there is found to be probable cause then the case goes to trial where the standards are much stricter.  Proof beyond a reasonable doubt is required.  That is a heavy burden to overcome.  It can either be before a single judge or a jury and one juror can prevent the conviction in most cases.  If all the rules were not followed properly at trial or even before, the trial judge or later an appeals court can review those actions, free from opinions of guilt or innocence, and if violation of the rules is found to be sufficient can reverse the conviction and remand for new trial or dismiss the case with prejudice.

As a former prosecutor I am so aware how difficult it is for an innocent person to get through this system and be convicted!  No doubt there have been cases where an innocent person has been convicted and the article points two of those out.   The DNA example and the mis-identification example would not have been prevented by such a law that deals with interviewing a suspect.

Using the rationale of the Defender General, how is the law enforcement officer going to know what charge a prosecutor is going to bring based on the facts of an interview?  It may well turn out that what the officer thought was an interview that did not fall within the purview of the law, later on hindsight review by the prosecutor, required that the officer record the interview.  Then what happens?  Is it like it is in Miranda? The criminal goes free, guilty or not, because the police failed to give him the attorney warning?     Who pays?  The public safety!  There will be unique ways that defense attorneys will use these recordings or lack thereof to further in my opinion the cause of injustice and tie up the court dockets.

The depth and scope of such required videotaping is undefined and claims that it would have limited applicability we know are unfounded.  One only has to think about how the system works.  The next judge would look at a case with facts outside the defined standards and expand them.  If not that judge, then the next will.

Such requirements will do nothing to make justice better, in fact it will lead to such burdens on the police that justice will be denied.  When criminals are not apprehended, not prosecuted, not convicted and not removed from society then justice is denied.

This is another case of the slippery slope that will lead to such burdens, yet undefined that will mean less police presence on the street.  It is bad enough at the end of an officer’s shift to require all the paperwork needed before their day ends, but this requirement will lead to further problems doing their duties and thus create problems for the administration of justice.

It will mean less time on the streets protecting the public and more time devoted to the details of recording.  Such a law will short circuit that already onerous procedure of getting guilty people off the street.  Such a law will result in fewer convictions.  Yes, the number of people convicted will be fewer and the crime rate will be lower but that will not mean they were innocent.  That is because the work will not be done and the guilty will be able to continue to do their deeds unencumbered by the law.  They will be safer but the public, men, women and especially children will be ever so much more endangered.

If the legislature is concerned about the lack of professionalism of police officers they should work to make the hiring requirements more stringent.  That would be much better than hiring people they obviously don’t trust to be professional and in effect having someone follow them around with a camera because of it.

 Posted by at 12:23