policecarhc1208_l_300_c_yThe Indiana Prosecuting Attorneys Council clarified its stance on whether law enforcement agencies should release police body camera video, but the practical impact of the change may be minimal, according to Steve Key, executive director and general counsel for the Hoosier State Press Association.

Dave Powell, executive director of the IPAC, told Key last week that the organization’s advice to prosecutors will be to examine each request on a case-by-case basis. From a practical standpoint though, Powell said prosecutors will still have to take into account the danger of being disciplined under the state Supreme Court’s Rules of Professional Conduct (specifically Rules 3.6 and 3.8).

If the video reflects poorly on a criminal defendant, the question for a prosecutor is: Will the release “have a substantial likelihood of materially prejudicing” the defendant’s ability to have a fair trial.

Key said to be safe from a disciplinary proceeding, he expects prosecutors will advise police agencies to hold onto the video until either the investigation is complete and no charges are to be filed, or until after the trial if charges are filed.

Powell and Key agree that it’s unlikely that any prosecutor will volunteer to be a test case on whether allowing police to release the video under an Access to Public Records Act request crosses the line as a violation of the conduct rules.

Key said resolution to the conflict between a legislative intent to make the body camera videos more available and judicial concern for a fair trial may fall upon the Supreme Court. A separation of powers issue could arise if the legislature attempts to dictate a resolution that the justices believe interferes with the Court’s ability to control judicial process.

An advisory opinion from the Disciplinary Commission or Supreme Court could bring clarity, but the Commission doesn’t have the authority to take such an action. It can only speak through a disciplinary action. Meanwhile, the Supreme Court relies on “model” rules and would be reluctant to initiate any change to the Court’s current Rules of Professional Conduct.

Key said the stalemate between legislative intent and judicial concern for a fair trial will create the following results if, for example, there’s a request under the worst scenario, a police-action shooting resulting in the death of an individual: The video will be held until the investigation is completed. Then if it exonerates the police, it will be released since there will be no charges filed against the deceased. If the prosecutor plans to file charges against an officer, the video would not be released because the prosecutor will not want to prejudice the officer’s trial.

Unfortunately, Key said the refusal to release the video could feed community distrust of law enforcement in neighborhoods where there already may exist a concern that minorities are treated differently by police.

If police decide not to release the video, the public can appeal that decision to a judge through the filing of a lawsuit. The burden then rests with law enforcement officials to convince the judge that the video should not be released.

The legislation that created the appeal process though specifically denies the citizen reasonable court costs and attorney fees even if the lawsuit is successful in gaining access to the video. This effectively discourages citizens to file the appeal, Key said. It’s also contrary to all other lawsuits filed under the Access to Public Records Act.

The legislation concerning police body camera video passed during the 2016 session is H.E.A. 1019.