A reconstituted workgroup with an expanded scope will revisit the issue of body-worn cameras and their effect on Commonwealth’s Attorneys’ offices, in addition to tackling the question of how the cameras affect the public safety and judicial systems overall. Budget language enacted in 2019 directs the Secretary of Public Safety and Homeland Security to convene the workgroup, which held its first 2019 meeting on July 29.
The workgroup is a continuation of efforts that began prior to 2018 to grapple with the effect of body-worn cameras on prosecutors’ offices. During the 2018 General Assembly, budget language in both chambers would have required localities to provide additional staff in Commonwealth’s Attorneys’ offices to assist with the workload associated with the use of body-worn cameras by law enforcement. Language in the Senate required additional staff to be provided at a ratio of one assistant Commonwealth’s Attorney per 50 cameras employed by law enforcement; House Appropriations Committee language, which was ultimately removed on the House floor, required localities to provide additional staff but did not dictate a ratio. After localities objected to the Senate language, the conference report removed the ratio requirement and instead directed the Compensation Board to convene a workgroup to study the issue. That workgroup was convened in fall 2018. (VACo reported on the workgroup deliberations in County Connections; articles may be found here and here.) All members agreed that the state must fully fund staffing in Commonwealth’s Attorneys’ offices in accordance with the Compensation Board’s staffing standards. However, prosecutors were adamant about the need for additional staff to address workload issues generated by the cameras. Ethics Counsel for the Virginia State Bar have opined that prosecutors have an ethical duty to review all footage that may be part of a case as part of their responsibility to disclose material that may be exculpatory.
The workgroup’s recommendations, which were incorporated in part into the 2019 Appropriations Act, were (i) that the state must fully fund existing staffing standards; (ii) that Commonwealth’s Attorneys and their local governments would negotiate the issue of additional locally funded positions, with a default ratio of 1:75 if an agreement could not be reached; and (iii) that the workgroup would be continued in order to gather additional data and develop a longer-term solution to the issue. The 2019 Appropriations Act funded 20 percent of the positions required to fulfill staffing standards. In addition, budget language transferred responsibility for the workgroup from the Compensation Board to the Secretary of Public Safety and Homeland Security and expanded its scope to include consideration of the effect of the cameras on the public safety and judicial systems as a whole. The budget also includes language barring the deployment of body-worn camera systems by state entities.
The July 29 workgroup meeting began with a review of the recent legislative history of the issue by Robyn de Socio, Executive Secretary of the Compensation Board, who also provided an update on the negotiations between localities and Commonwealth’s Attorneys this spring. Some localities provided additional funding for attorney positions, some provided funding for support staff, some provided additional salary supplements for existing staff, some provided additional technology, and in some jurisdictions, no additional support was requested. Michael Jay of the House Appropriations Committee staff discussed the legislature’s approach to the issue, explaining that committee leadership viewed the provision of staff to address the workload associated with body-worn cameras as a local responsibility, since the decision to deploy cameras is made at the local level.
Dorian Dalton with the Office of the Executive Secretary of the Supreme Court explained the revisions to the criminal discovery rules that have been developed through discussions between prosecutors and the defense bar, but delayed until 2020 at the request of the money committee chairs. The discovery rules do not affect prosecutors’ duties to review body camera footage, which would be required without the discovery rules, but they are expected to affect defense counsel’s workloads, as they will essentially require prosecutors’ files to be provided to defense counsel, with certain exceptions. Body-worn camera footage that may be included in those files will need to be reviewed by defense counsel in order to meet ethical obligations to clients.
Shannon Taylor, Commonwealth’s Attorney in Henrico County, provided data her office had collected tracking the number of hours spent by attorneys in her office reviewing body-worn camera footage and outlined her conversations with Henrico County about staffing resources over the past several years. Henrico County Chief of Police Humberto Cardounel added that the County is upgrading its technology so that the review process will be more efficient. He noted that there is a public expectation that cameras will be used by law enforcement, a view echoed by Court of Appeals Judge Robert Humphreys, who pointed out that jurors are accustomed to video evidence in trials.
Issues that are planned to be discussed at future meetings include the effect of the cameras on the defense bar, in particular the public defenders’ offices and court-appointed counsel; effects on the court system; potential improvements in technology to expedite review of footage; local policies guiding use of the cameras and the model policy developed by the Department of Criminal Justice Services; and considerations for state agencies in deploying cameras. VACo and VML will be working with local government representatives to make a presentation. The workgroup’s next meeting is September 4 and a report is due November 15.
VACo Contacts: Katie Boyle and Chris McDonald, Esq.