As police body cameras proliferate, the judicial system is facing an unexpected problem: demands by some judges to provide written transcripts of all body-cam footage before it is introduced into evidence.
That topic was raised during a Feb. 1 meeting of the House Public Safety and Security Policy and Finance Committee while the Board of Public Defense was making its budget pitch for 2018-19.
Rep. Debra Hilstrom, DFL-Brooklyn Center, is an Anoka County prosecutor in her day job. During the Feb. 1 committee meeting she said that transcription costs likely will soar as body-cam footage becomes more ubiquitous in judicial proceedings. “It is becoming a significant issue,” she said.
In an interview, Hilstrom said she has faced the issue personally. Not long ago during a felony trial she prosecuted in Anoka County, a judge ordered her to produce transcripts for every piece of video evidence she wanted admitted.
Hilstrom has no idea how often that happens to prosecutors, defense attorneys and local police but she thinks it is not uncommon.
“I am not the only one,” she said.
That seems likely.
According to information from the Minnesota Judicial Branch, five of the nine Minnesota judicial districts have administrative orders or policies in place requiring transcripts of all video or audio evidence before it can be introduced in trial.
The Second Judicial District’s policy is fairly typical: “The party intending to introduce a recorded statement (video, and/or audio) must … prior to trial timely prepare, serve and file a verbatim transcript of the recorded statement.”
Whichever side wants video introduced is responsible for preparing the transcription, the policy states. (Some county attorneys have been known to kick that responsibility down to the local police departments that recorded the video, however.)
The Second District’s policy was adopted in 1999, which is not unusual. Beau Berentson, communications director for the Judicial Branch’s court information office, said many districts’ video-transcription policies went into effect long before body cameras went into wide use. It is up to individual judges to decide how to apply the policies, he said.
How frequently they demand body-cam transcripts is not known, he added, because that data cannot be extracted from the Minnesota Court Information System database.
Clearly, it happens often enough that a legislative bill aimed at resolving the issue has been submitted.
Senate File 788 would eliminate any requirement for video footage to be transcribed before going into evidence. That would align state body-camera laws with those governing police dash-cam footage. Since 2010, transcripts have not been needed in Minnesota for dash-cam videos to be introduced as evidence.
Sen. Bill Ingebrigtsen, R-Alexandria, a retired county sheriff, is chief author of the bill. Introduced on Feb. 9, it was referred to the Senate Judiciary and Public Safety Finance and Policy Committee. For now, it has no House companion.
The idea, however, was first proposed by Hennepin County Attorney Mike Freeman. “All the reasons for allowing into evidence squad car recordings without transcriptions apply with much greater force to body cameras,” Freeman said in his written bill proposal.
More often than squad-car cameras, body cams record situations where multiple voices speak simultaneously, the letter states. Body-cam footage often is captured in tumultuous or violent situations where discerning what is being said becomes impossible.
Worse, transcription poses a huge burden on local governments, Freeman’s letter said. One police incident can involve a dozen officers equipped with body cameras. Being forced to transcribe all those recordings could lead some local governments to decide against using body cameras, the letter states.
State Public Defender Bill Ward supports the bill. He said it is often best just to let videos speak for themselves in court rather than offer juries confusing transcripts.
But costs to his office is an issue. Minnesota’s public defenders handle 145,000 cases a year, he said, and proliferating video already is a resource drain. Every second of footage that emerges in discovery must be reviewed by public defenders who then must find ways to file, store and transport them securely to jail houses so clients can view them.
That is one reason why the Board of Public Defense’s budget proposal includes a $200,000 per year request for an upgraded content management system, Ward said. Adding required transcriptions to his office’s ballooning list of digital content costs would just be one more headache.
Robert Small, executive director of the Minnesota County Attorneys Association, also supports the Ingebrigtsen bill. The primary reason, he said, is that might help get more video evidence introduced while saving the system money.
But it also could help prevent trials from getting bogged down, he said. For instance, when a defense attorney pays to make a full video transcript, it gets offered to the prosecutor for review. If both sides agree it’s accurate, things move forward. If they don’t, a separate hearing must be held to square the differences, stalling proceedings.
“Judges hate that,” said Small. “So hopefully that would be another instance where they will let the evidence in without a transcript.”
No piggy bank
Rep. Tony Cornish, R-Vernon Center, is the Public Safety and Security Policy and Finance Committee’s chair. In an interview, he expressed skepticism about a legislative fix to the transcription problem.
“We could try passing a state law,” Cornish said. “But if that is in conflict with court rules and they say no—and it turns into a constitutional rights thing—it could become a conflict.” A better approach, he suggested, might simply be to seek formal guidance from the state Supreme Court.
If courts opt to more regularly require litigants to prepare body-cam transcripts, Cornish said, one thing should be made clear: The Legislature will not reimburse those costs.
Cornish said issues like video-transcription costs were not unknown a year ago when the Legislature passed laws governing police agencies’ use of body cameras. It was partly in anticipation of hidden costs that lawmakers made body cameras optional for police agencies.
“Local government knew going in that there wasn’t any state funding, or the promise of it coming,” Cornish said. “So they shouldn’t be looking to us to bail them out.”
Ward acknowledges that studies were done before the law passed suggesting that hidden body-cam costs could be substantial. That, however, doesn’t take away the sticker shock.
“I just don’t think that anybody contemplated how overwhelming technology was going to become as part our vocation, to be honest,” Ward said. “I mean, I’m a lawyer. I’m not an IT person.”