Before its passage by the Indiana General Assembly earlier this year, we praised House Enrolled Act 1019 for restoring dash-cam and body-cam videos to the bright light of public scrutiny, “where they belong.”
But without a fix from the Indiana Supreme Court, such videos could be kept in the dark for an indefinite period.
The law, which went into effect in July, was a reaction to the spate of videos of police brutality and shootings that have been released across the country. It its original form, the bill was a major impediment to the public’s right to know. It established a confounding set of rules that, among other things allowed agencies to withhold body camera video from the public unless the person or entity seeking the recording could convince a judge that releasing it wouldn’t harm anyone.
Only a person depicted in a video could request it, could only watch it twice and couldn’t make a copy. And filing a lawsuit was the only resource for those denied seeing a video.
But changes to the bill flipped the burden of proof from the public trying to convince a judge why a video should be released to the law enforcement agency trying to convince a judge it shouldn’t be released. The bill also requires video be released if an alleged victim said it showed excessive force or rights violations. Still, certain conditions allow police to withhold videos in cases of sensitive, ongoing criminal investigation.
These significant changes were welcome, allowing dash-cam and body-cam videos to serve the interests of the public and police officers in giving visual proof of how an incident is handled.
But the Indiana Prosecuting Attorneys Council has serious concerns that prosecutors could be in danger of being disciplined under the state Supreme Court’s Rules of Professional Conduct — specifically, Rules 3.6 and 3.8 — if police release video to the public before a criminal investigation is over or before a trial ends.
The rules prohibit influencing a potential jury pool and increasing public condemnation of a defendant.
As David Powell, executive director of IPAC, explained in a Friday op-ed in the Times of Northwest Indiana, “It is important to note that the Indiana Supreme Court has made it clear that prosecutors may not use the Access to Public Records Act as a tool to violate its Rules of Professional Conduct. Law enforcement recordings often include material that is prejudicial to a defendant. Releasing a prejudicial recording would violate the access laws and implicate the Rules of Professional Conduct.”
Steve Key, executive director and general counsel for the Hoosier State Press Association, says the remedy for this problem must come from the Indiana Supreme Court. “The legislature could change the law — but prosecutors would still be under (Rule) 3.8,” says Key, who doesn’t see the matter being resolved in the near future.
Some guidance from the court would help clarify whether the release of certain videos would violate its rules of conduct, but Powell notes, the court “doesn’t give advisory opinions; we’ve asked them to reconsider.”
Unless and until the court steps in, a law intended to support the public’s right to know falls short in that goal.
This was distributed by Hoosier State Press Association. Send comments to firstname.lastname@example.org.