A look at how audio and video evidence is transforming public defense in the 21st century

Bodycam

JusticeText was founded to expand access to legal representation for low-income criminal defendants by leveraging the power of technology in the public defense system. Today, public defense is in crisis. Defenders are systematically overworked, underfunded, and disadvantaged relative to the prosecution. Innovation often brings with it the promise of change, but in a criminal justice system riddled with inequities, technology often only entrenches the problems of over-policing and poor representation of the indigent. Here public defense is no exception.

Consider the recent explosion of digital discovery: technology has made reams of information available as novel forms of evidence. From forensic discovery to police body-worn cameras, prosecution and defense counsel alike are adjusting to new technological realities. The difference: law enforcement and prosecution possess structural advantages in the form of significant public funding and far-reaching legal discretion.

The relative disadvantages of public defenders have culminated in a “tech gap” that contravenes the very principles of equal justice.

Prosecution has greater legal powers, including warrants and court orders, to compel companies to grant them access to digital evidence, and they further can utilize forensics technologies to assist with digital investigations. Additionally, markets offering access to password-protected smartphones and computers cater almost exclusively to law enforcement. Technology has all but tilted the scales of justice.

At JusticeText, we believe defenders deserve to utilize technology to its fullest extent for their clients, and we are working to significantly reduce the burden of reviewing audiovisual evidence. New technologies like video surveillance and smartphones have expanded the volume of audio and video files criminal defense attorneys must comb through to staggering levels. Experts on the burgeoning growth of digital discovery estimate that 3.3 trillion hours of video surveillance is captured daily.

The Department of Justice estimates that more than 80 percent of all indigent cases now involve some form of audiovisual evidence.

Our experience working with defense attorneys has confirmed the reality of these startling statistics. In the process of refining our software platform, we organized pilot programs with over 400 attorneys nationwide. These studies have illustrated to us the tremendous opportunity and complex challenges posed by new forms of digital technology. Sources of evidence like police body-worn cameras, interrogations, and jail calls are increasingly ubiquitous in the day-to-day of the defense’s digital discovery.

These new forms of evidence are a concrete manifestation of technological change in criminal justice. To better understand their impact upon public defense offices, we asked 109 participants in our pilot programs about their experiences managing these new sources of evidence.

Public defenders spend overwhelming amounts of time manually reviewing digital evidence.

Our survey results reveal just how time-consuming digital discovery is for the typical defense attorney. The vast majority of our lawyers indicated that they process this volume of evidence through manual review - that is, physically viewing, interpreting, and transcribing audio or video with the help of a word processor - either by themselves or with the support of staff. As one might imagine, this method is exceptionally resource and time-intensive, requiring upwards of 10 hours per month from more than two-thirds of our respondents.

The average public defender reported handling approximately 60 cases per month, and 63% of respondents said that the majority of their cases involve audiovisual evidence. As public defenders, they are ethically bound to find and review the best possible evidence to secure their client’s defense, and yet public defenders lack the financial and staffing resources to adequately do so.

“Almost every case has [body-worn camera footage]. And then there are 911 calls, witness/suspect interviews, and some cases with extensive jail calls. A lot would be an understatement.”

Public Defender in Colorado

These sources of evidence are extremely valuable for defenders, and the attorneys we work with constantly emphasize this fact. The vast majority of respondents said it was “Important” or “Very Important” to have an accurate transcript of jail calls (80%), body-worn camera footage (75%), and interrogation videos (96%). As defense investigator LaNitria Turner told us in April about evidence from police body-worn cameras, “when you have [video evidence], sometimes it's gold. It's an accountability tool.” Her assertion is further borne out in the important role that body-worn camera and surveillance footage played in the trial of Derek Chauvin. Without that digital evidence, it is unlikely George Floyd would have gotten justice.

Public defenders find critical information in body-worn camera footage, jail calls, and interrogation videos.

We wanted to learn more about what public defenders look for in the most common types of digital evidence: body-worn camera footage, jail calls, and interrogation videos. Not only do these recordings capture a wide variety of interactions among the observed participants, but they each present a unique value proposition to defense attorneys.

Client, witness, and officer statements in body-worn camera footage help public defenders identify details missing from police reports.

The importance and ubiquity of police body-worn cameras in criminal proceedings and policing more generally have grown tremendously over the last decade. The number of police departments employing body-worn cameras more than doubled between 2013 and 2018, and usage has only been increasing since the events of last year's protests following the killing of George Floyd.

A full 98% of JusticeText users reported that they consistently review body-worn camera footage. These files normally reveal the initial encounters between officers and the public, which are naturally important sources of evidence. The responding attorneys expressed a consistent focus on certain crucial elements of the interaction, particularly the dialogue. More than half (57%) specifically mentioned wanting to understand the statements made by both the defendant and police during their interaction.

The following are representative quotes from defense attorneys about their review of police body-worn camera footage:

  • "I'm reviewing for statements made by my client or witnesses, admissions by police officers or information about what they did to investigate, and words/actions that indicate legally significant events (arrest, searches, etc)."

    Public Defender in Washington D.C.
  • "I am looking for impeachment evidence for cops and witnesses or positive statements by clients left out of reports."

    Public Defender in Colorado
  • “I usually look at what is done and said to my client, what is said by my client, what is said by the police, what is said by witnesses, and witness identifying information. I look for any new [information] missing from the few documents we get at the beginning. It’s also important to know which officer is saying what and what they are writing down.”

    Public Defender in Washington D.C.

Recorded jail call conversations often contain incriminating statements made to close family and friends.

Jail call recordings feature phone conversations between inmates and those outside of prison, commonly close relations like friends and family. They are regularly recorded and have recently begun being subject to mass monitoring by artificial intelligence, a practice which has attracted criticism from civil rights activists. It is then no wonder that just over a third (35%) of total respondents indicated that they are primarily concerned with identifying inculpatory evidence when reviewing recorded jail call conversations.

The incriminating evidence is often derived from unwitting statements made by the defendant in conversation with friends and family, which serves to strengthen the prosecution's case for conviction or sentencing, as investigative journalist Ken Armstrong notes. Defendants speak about the case without the presence of counsel or privately express frustration about the judge or prosecution; evidence from these conversations, though disclosed when they are recorded, take advantage of the detained. It is a very common tactic to dump hours of jail calls on a public defender’s desk days before trial, which adds to the overall stress caused by this form of digital evidence.

The following are representative quotes from defense attorneys about their usage of jail call evidence:

  • “[In jail calls], I want to make sure my client’s rights are protected while in custody and steer clients away from discussing the case over the telephone with family and friends.”

    Public Defender in Nevada
  • “[I’m looking for] what is said- anything about the case or witnesses, anything that would be bad for the defense case, anything the government might use against my client. If they are jail calls by a government witness we are looking for anything they say that makes them less credible or anything to use against them.”

    Public Defender in Washington D.C.
  • “Typically, I'm searching for discussions that are harmful / helpful to my client's case. Some cases are won or lost on this type of information.”

    Public Defender in Nevada

Public defenders pay close attention to police interrogation tactics and their client’s demeanor when reviewing interrogation videos.

In interrogation settings, police enjoy wide latitude in the techniques they use to elicit information from a defendant, leaving significant grey area for potential abuse. And even within the realm of legal behavior, certain populations like children and the intellectually disabled can be made vulnerable by the tactics of interrogation.

The survey results reveal that defense attorneys rely on non-semantic elements of the interaction like tone, body language, and volume as much as the transcribed dialogue itself. One attorney, emphasizing the importance of analyzing interrogation tactics said, "these are what I usually need exact transcripts for, as they can be used to impeach during court hearings and trials."

The following are representative quotes from defense attorneys about their usage of interrogation videos:

  • “This [evidence] is critical: the substance of what is said as well as whether anything necessitates constitutional or other evidentiary motions.”

    Public Defender in Florida
  • “Potentially incriminating or exculpatory information disclosed by client; client's demeanor that could go to voluntariness of the statement; statement and demeanor of police that could go to voluntariness of statement."

    Public Defender in Nevada
  • “[I’m looking for] everything: what is said, how questions are asked, body language, tone, etc.”

    Investigator in Washington D.C.

JusticeText believes in the power of audiovisual evidence.

We know that gold exists in all sorts of audiovisual evidence, and our goal is to level the playing field for public defense — especially in crucial sources of information like police body-worn camera footage, jail calls, and interrogation videos.

JusticeText is successful when it empowers defense attorneys to make the most of these audiovisual opportunities. We are currently piloting our platform with 15 public defense offices around the country like Still She Rises, the Public Defender's Service of the District of Columbia, and Queens Defenders. We are always learning more about the needs defenders have in reviewing audiovisual evidence and improving our platform to help them overcome tough technical challenges. We constantly strive to make JusticeText a bigger and better part of that process.

If you are interested in joining our mission, please contact us at team@justicetext.com or request early access today.

Is JusticeText Right For You?

If you are an attorney looking to make sense of high volumes of audiovisual discovery, there are many ways in which you can utilize JusticeText to streamline your pre-trial preparation process. Reach out today to learn about how you can get started with JusticeText.