By Steve Key
Hoosier State Press Association
All the work during the last Indiana legislative session to improve the public’s ability to access police body and cruiser camera video may have been for naught.
The problem lies with prosecutors who say they are ethically bound to deny all requests for evidentiary video until after a criminal investigation or prosecution is complete.
The circumstances aren’t a deliberative effort to circumvent H.E.A. 1019, which goes into effect on July 1, but rather ethical directives in the Indiana Supreme Court’s Rules of Professional Conduct, which impact county prosecutors.
The rules prohibit influencing a potential jury pool (Rule 3.6 – Trial Publicity) and increasing public condemnation of a defendant (Rule 3.8 – Special Responsibilities of a Prosecutor).
Marion County Prosecutor Terry Curry acknowledged releasing video could take six months to two years under these rules.
Dave Powell, executive director of the Indiana Prosecuting Attorneys Council, said it could be even longer if the state Supreme Court rules that video shouldn’t be released until all appeals have been exhausted.
This negates the goal of encouraging law enforcement to release video quickly to show the public that nothing is being hidden and officers acted appropriately – or if not, that disciplinary action or training is occurring. When prosecutors block law enforcement from voluntary release, it can exacerbate tensions between police and the community.
A story from The Indianapolis Star on a police action shooting brought the issue to my attention.
It quoted Curry, who denied public access to surveillance video that may have depicted what transpired in the case.
Curry’s comments articulated a policy that would apply to any case where video was collected, be it private surveillance video or police body camera video.
Curry was kind enough to meet with me to answer my questions.
He confirmed that he felt compelled by Rules 3.6 and 3.8 to deny any request for copies of video until the criminal investigation or prosecution of the event in question was complete.
Rule 3.6 prohibits a lawyer from actions that the lawyer “knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
Rule 3.8 prohibits actions that “have a substantial likelihood of heightening public condemnation of the accused.”
It also prevents investigators, law enforcement personnel and others from actions the prosecutor is prohibited from doing under Rule 3.6 or Rule 3.8.
Curry also articulated other reasons he would deny public access to video:
• Release could hamper police ability to interview witnesses about what they saw as opposed to what they saw depicted in video in media coverage.
• A video could present an incomplete picture of what occurred.
Curry understands the concept that release of police video helps reassure the public that law enforcement officers are acting appropriately.
He said he has no problem releasing video after an investigation and prosecution ends.
I followed up that conversation with a meeting with Powell and two of his staff members.
Powell concurred with Curry’s comments and said prosecutors would advise police departments not to release video in criminal matters until the case is completed, under Rule 3.8.
Powell said he doesn’t oppose the release of video but feels the rules as enforced by the Indiana Supreme Court Disciplinary Commission tie his hands.
Powell is not sure whether legislative action would be seen by the Indiana Supreme Court as a substantive policy decision – which would be in the legislature’s purview – or as intruding on the court’s authority in procedural matters.
The next step is to reach out to the state Supreme Court to find out justices’ take on this question.
Steve Key is executive director and general counsel for the Hoosier State Press Association.