What Are the Ethical Rules for Prosecutors Regarding the Public Release of Videos in Officer-Involved Shootings? The Answer Is Less Complicated Than You Think

Decision-making across the nation has been inconsistent, ranging from a flat refusal to produce the video, to immediate production of every video available, to everything in between these approaches. See, e.g., Major Cities Chiefs Ass’n, Independent Investigation of Officer-Involved Shootings (2018) (noting disagreement between different police agencies about release of police videos in officer-involved shootings); Chad Marlow & Jay Stanley, We’re Updating Our Police Body Camera Recommendations for Even Better Accountability and Civil Liberties Protections, ACLU (Jan. 25, 2017) (requiring body camera video of officer-involved shooting to be released within five days of incident); Rachel Wegner, Nashville Police Decline to Release Full Body Camera Footage After Fatal Shooting, Nashville Tennessean (May 4, 2021); Ashley Southall & Jeffrey Mays, Police Consider Releasing Body Camera Footage in Fatal Bronx Shooting, N.Y. Times (Sept. 7, 2017).

Fortunately, the ethical rules governing prosecutors provide some straightforward mandates. It just seems as if many prosecutors are unfamiliar with the actual rules, at least in the context of officer-involved shootings.

Before we get into the rules, we should acknowledge the extraordinary pressure on prosecutors in these circumstances. Particularly in large urban areas, a majority of police officer–involved shootings of civilians are captured on video. Police body cameras, patrol vehicle cameras, security cameras, and civilian smartphones all increase the probability that the shooting will be recorded.

Prosecutors are then stuck between competing interests. The media want the video immediately and may attack any prosecutor who does not hand it over. The police unions may be completely opposed to the production of the video. Community activist groups may think that the prosecutor is hiding something if the video is not publicly disclosed. The family members of the dead civilian may be violently opposed to production of the video or vehemently demanding public production. Making the situation even more uncontrolled, all of this is taking place before any charges are filed, and thus there is no judicial oversight.

Now, to the surprisingly clear rules that govern the release of officer-involved shooting videos.

Prosecutors are forbidden from releasing (or allowing the police to release) any type of evidence that would prejudice a fair trial. Rule 3.6(a) of the Model Rules of Professional Conduct states, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement 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.” See Model Rules of Pro. Conduct r. 3.6(a) (emphasis added).

Rule 3.8(f), specifically directed at prosecutors, states, “The prosecutor in a criminal case shall . . . except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.” Id., r. 3.8(f) (emphasis added).

Virtually every state has adopted some version of these rules for prosecutors. See, e.g., Pa. Rules of Pro. Conduct r. 3.8(e); Cal. Rules of Pro. Conduct r. 3.8(f); Ill. Rules of Pro. Conduct r. 3.8(f). Thus, prosecutors are not allowed to make statements or release materials to the public that could affect the later criminal trial or increase public condemnation of the accused. Prosecutors have a duty to enforce the same rules for police personnel associated with the prosecutor.

Rules 3.6 and 3.8 are not “mere” ethical rules. They are grounded in the U.S. Constitution. The rules seek to balance the Sixth Amendment right to a fair trial with the First Amendment right to freedom of speech. See U.S. Const. amends. I, VI. The U.S. Supreme Court described the balance between these rights primarily in a quartet of hard-fought cases dealing with pretrial publicity in criminal matters. See Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961). The ethical rules are the result of those decisions.

It is difficult to imagine something more likely to taint a jury pool than the public release of the video of an officer-involved shooting during the criminal investigation. The video angles may be limited, distorted, or confusing. The context of the shooting regarding what the officer and the civilian were doing prior to the video is absent. Once released, the video can be reduced to certain portions or even manipulated to provide false information, then recirculated via traditional media or social media. For anybody who views the video of the shooting prior to trial, it would be difficult not to reach a firm conclusion about the guilt or innocence of the officer.

Thus, before a charging decision has been made, prosecutors and the police may not release the video of an officer-involved shooting. This is not a discretionary decision. It is a constitutional and ethical mandate for prosecutors, and breaching it leaves a prosecutor in danger of (a) an ethical infraction and (b) irrevocably tainting a jury pool, making a fair trial impossible in a case where the stakes for public integrity and trust are high. Moreover, it is the prosecutor’s burden to make sure this restriction is adhered to by the police. Of course, the prosecutor cannot control civilians who may have recorded the incident from releasing the video.

If the prosecutor decides at the end of an investigation to charge the officers, the same ethical rules apply. The video is now evidence that will be played and analyzed at trial. The release of the recording with charges pending is likely to result in adverse pretrial publicity and is still an ethical breach when the matter is as serious as an officer-involved shooting.

If the prosecutor decides not to charge the officers, then the rules of professional conduct do not address the release of such a recording. There is no longer the chance of tainting a subsequent criminal trial. The better practice is to release the recording, along with a written report. This allows the public to see and evaluate the same recording viewed by the prosecutor in making the decision not to charge, together with the context provided by the written report. See, e.g., Pa. Dist. Att’ys Ass’n, Officer-Involved Shooting Investigation Best Practices (2016), (in context of declining charges in officer-involved shooting, recommending release of video recording). Exceptions may apply, particularly where the family of the person who was shot requests that the recording not be released and concurs that the shooting was justified.

Demonstrating how fraught even the issue of releasing a video can become, the author had a unique situation where there was a justified officer-involved shooting of some notoriety, but the president judge threatened to hold the author (then serving as an elected district attorney) in contempt if he released the recording of the shooting to the public together with the written report. A constitutional showdown between the executive and judicial branches was averted when the family of the slain man and local community leaders requested that the district attorney’s office not release the video amid general consensus that the shooting was justified and that any further media attention would hurt the family.

The inconsistency of prosecutors across the nation on the release of officer-involved shooting videos does not arise from a lack of familiarity with the ethical rules. Every prosecutor’s office is awash in video evidence of murders, rapes, assaults, and other crimes. The public disclosure of any of these videos would lead the news every day and night if released. Such videos are not released by prosecutors because they know that such public disclosures would taint future trials. The only time such recordings are legitimately released is if there is an issue of identifying a suspect or a suspect is a fugitive, and the prosecutor is requesting public help to identify or capture the suspect. But the rules explicitly permit releases in these limited circumstances because they “serve a legitimate law enforcement purpose.” See Model Rules of Pro. Conduct r. 3.8(f).

Perhaps the most glaring example of prosecutors being fully aware of the duty not to release such shooting videos is when the officer-civilian shooting dynamic is reversed: A police officer is shot and killed by a civilian. Every prosecutor carefully makes sure that the video is not released publicly prior to any trial, knowing that the release could seriously taint a murder trial, or at the very least require a change of venue. The same rules apply when a police officer shoots and kills a civilian.

North Carolina provides an example of a state that has addressed the ethical implications of releasing videos of officer-involved shootings with a bright-line rule. Under North Carolina statutes, “Recordings in the custody of a law enforcement agency shall only be released pursuant to court order.” See N.C. Gen. Stat. § 132-1.4A. The restriction covers prosecutors as well. Thus, law enforcement requires the approval of a judge to release such video information publicly. Without judicial approval, the video of an officer-involved shooting (or any other law enforcement video) may not be released publicly. This law has recognized that the issue of releasing videos happens in the uncontrolled pre-charging environment, where there is not judicial oversight, so oversight is added by statute.

This North Carolina law takes the burden off prosecutors and police, and instead places it on the courts. However, the vast majority of states have no such laws. And the North Carolina law has come under public fire recently. See Danielle Battaglia, Release Police Body-cam Video Within 48 Hours, Democrats Say in New NC Bill, News & Observer (N.C.) (Apr. 28, 2021).

So why has such a simple ethical issue become so convoluted? The first answer is the unholy trinity of politics, race, and the media. Depending on the race of the officers and civilians involved, there is often a publicity storm created by politicians, the media, and activist groups on both sides of every issue. For prosecutors, the simple answer is that neither politics, nor race, nor media pressures trump ethical duties.

The second reason for the confusion may be the fault of prosecutors themselves. If officer-involved shootings were resolved with an announcement of charges or no charges within 30 days, it would be much easier for prosecutors to ask for a brief bit of patience and then make a well-grounded decision on charging and release of the video. While there is always the outlier case, it is difficult to think of a shooting investigation where a prosecutor has more evidence immediately available than an officer-involved shooting. The prosecutor has the weapon, the identity of the shooter, the full background on the shooter, often multiple other law enforcement witnesses, recordings, immediate notification and crime scene processing, and usually the statement of the shooter. In an average homicide investigation, with all of that information available, a prosecutor should be able to make a charging decision within a matter of days after receiving completed reports.

Instead, the public has seen instances, like the Laquan McDonald shooting in Chicago, where the city delayed the investigation of the shooting for over a year, before the production of the video revealed what was being hidden. See Associated Press, A Timeline of the Chicago Police Shooting of Laquan McDonald, AP News (Sept. 16, 2018). Any competent prosecutor could have made a charging decision in the McDonald case within a week of seeing the evidence. Such unnecessary investigative delays combined with the nature of the eventual revelations have led to a natural distrust of prosecutors and the police.

Thus, the rules are not complicated and can be followed with little difficulty. During a criminal investigation of law enforcement personnel for an officer-involved shooting of a civilian, the video recording controlled by law enforcement may not be released. The same rule applies if an officer is criminally charged in the case. If a prosecutor decides that no charges will be filed, the video can (and should) be released.

Any deviations from these rules are ethical violations for prosecutors and the police. The only way that these rules will be enforced is if the judiciary imposes procedural restrictions and sanctions on those who ignore the rules. Those repercussions may include a change of venue, a change of venire, reversal of cases on appeal, ethical referrals, and findings, and could even eventually result in the dismissal with prejudice of a criminal case.

Interestingly, when the release of such a recording is posed in the framework of established ethical rules, any confusion about the release of the recordings evaporates. The rules governing such a public release are already in place and simply should be followed.

For the prosecutors who are wondering how to deal with the political ramifications of this troubling issue, take refuge in the safe harbor of the ethical rules. When the media or civilians demand the release of a video during the investigation or after charging in an officer-involved shooting, just politely reply, “My ethical duties as a prosecutor prohibit me from disclosing such a recording. Please address the court with any request for a deviation from these ethical mandates.”

This position will not be popular with the media and portions of the public. Some have an axe to grind, some have legitimate concerns, and some have a prurient interest in viewing violence. This is a stark reminder that the role of a prosecutor is not to be popular. It is to be just. That is a hard message to swallow come election time. But it is the oath that prosecutors are sworn to uphold. The only solace is that if every prosecutor conforms to the established ethical standards, the media and the public may begin to understand why the rules makes sense.