Believing in a System That Works

How Body Cams Can Restore Faith in Law Enforcement

Attorneys Marc Lopez and Mike Cunningham recently talked about 21st century evidence, the value of police body cams, and the jury instruction that Marc’s never been allowed to use at trial. What follows is a lightly edited transcript of their conversation.

Marc Lopez
Mike, you are a criminal defense attorney, and you practice mainly in southeast Indiana. Tell me the counties that you’re mostly involved in.

Mike Cunningham
Our offices in Brookville, Indiana, which is Franklin County. We also serve Dearborn, Switzerland, Union, Wayne—you name it in the southeast Indiana, Cincinnati region of Indiana.

Marc Lopez
And tell me the breakdown of your practice, Mike. Give me the percentages your best you can.

Mike Cunningham
So I focus my practice 100% on criminal defense—I guess criminal defense and some collateral issues like expungement and specialized driving privileges. But really what I focus my practice on is defending the Constitution and the rights of those that are accused of crimes.

Marc Lopez
I wish I had known you, like, four years ago—I had a case in Switzerland. That’s a long drive from Indianapolis. Oh, my God.

Mike Cunningham
It’s a long drive from anywhere. It takes me like probably almost an hour-and-a-half to get there. So I personally don’t have many cases there, but we get down there every now and then.

Marc Lopez
Well, they have a casino, am I right? Kinda close by there?

Mike Cunningham
Yeah, there’s one there. There’s one in Dearborn County. So, yeah. And being in the tri-state area, I think you get a lot of people that are coming from out of town, and I wouldn’t say this is a hub of criminal activity, but with that overlap of the states—you know, you get your fair share of things.

Marc Lopez
I met you through the State Bar Association’s Leadership Development Academy, and I feel like, you meet new people, and sometimes you just—the entire leadership crew is amazing, but I really kinda—

Mike Cunningham
Yeah.

Marc Lopez
I just like you a lot, Mike. I connected with you right away, and you’re a really good guy. 

The beautiful part about Mike is he’s super smart, but when he realizes, Hey, I need a little bit of help—he’s not afraid to reach out. Sometimes you have lawyers who just have this ego about them—I don’t need any help with anything

I’ve helped Mike out a few times, and Mike has helped me out quite a few times, too. It’s always an amazing thing when you realize someone is not only a good lawyer, but they’re not so ego- driven. They can actually reach out to somebody. 

So Mike and I were emailing about body cams and whatnot, and we decided, Hey, let’s do a little quick Zoom interview on this, and that’s what we’re here for. 

So Mike, are body cams prolific in your practice areas? Do you guys deal with these a lot?

Mike Cunningham
No. One of the main issues as to why body cameras are not used as often is cost, right? It costs a lot of money to buy them, costs a lot of money to store them. So unfortunately, when you’re in rural Indiana, your officers describe themselves as being this little small town police department: We don’t have much room for technology. 

We don’t have many body cameras, and I certainly wish that we did. We have some dash cameras, but really, there’s not enough. In my opinion, there’s not enough body cameras and dash cameras that can really get to the truth or the heart of the matter—because really, when you’re talking about being accused of a crime—we have this presumption of innocence, of course, which attaches to everyone, but we are all about finding truth, right? And what actually happened? 

I really do think that if we can record these instances—or get as close as we can to recording these instances—then we’re going to get to truth, and we are going to cut out some of the injustices that you and I see.

Marc Lopez
You are practicing in what you consider rural Indiana and I’m in downtown Indianapolis. IMPD—I think—is the largest police force in the country without body cams. Totally unacceptable, although there’s been a commitment to have them by the end of the summer. 

IMPD is one of a few police agencies inside Indianapolis—there’s Lawrence Police Department, there’s Beech Grove, there’s Speedway—and a few of those do have body cams. From my perspective, I really love it, because I spend so much time doing depositions—What happened? Fleshing out the police report. When you can look at those body cams, they answer so many questions I have right away. 

It doesn’t make sense to me. This is the year 2020. Every single client that hires me—I can’t wait to see the dash cam. I wanna see if what he says matches up, and as a society, we expect there to be video camera.

Mike Cunningham
I had a DUI case that went to trial probably a year or so ago that unfortunately we did not win, but in speaking with the jurors after the trial, we said, What was going on? I mean, our big thing was, You didn’t have any of these statements or these things, Mr. Officer, that you say happened—you didn’t have those on camera. Here we are in the 21st century—pull out your cell phone, record something, do something. You didn’t have that, and yet you expect this jury to believe it? 

So we’re talking with this one juror, and she said, Well, there’s been DUIs for years and years before cameras even existed. And that kind of stopped me in my tracks. How do we know that those convictions were accurate? How do we know that those DUIs weren’t done in such a way that violated someone’s constitutional rights? 

You’re exactly right Marc—we’re in the 21st century. And what I like to say is, If you want 21st century convictions, you have to earn them with 21st century evidence. Why don’t we have body cameras? Why don’t we have dash cameras? Cell phone footage? Right?

Marc Lopez
I feel like so many police officers are hesitant to say, I want body cams. I wouldn’t want anybody recording me 24 hours a day—but I’m not in a situation where I could make a statement that puts somebody in jail, and then require them to go to trial to prove their innocence. So because of certain aspects of the job, I think you have to do that. 

Mike and I have exchanged a bunch of articles, and one of the solutions that’s rather cheap is, you only record when the gun is pulled from the holster. And while that seems like a great idea for excessive force type cases involving guns, there’s so many issues and instances where guns aren’t involved but there’s still excessive force used. 

I do mostly DUIs, and I’ve caught officers copying and pasting previous reports. You see enough DUIs, you’ll catch things like that. I wanna know what actually happened, and just because a gun wasn’t pulled doesn’t mean I’m any less entitled to a video camera. 

Mike, have you ever had a case with a dash cam or body cam that didn’t turn out the way you thought it would?

Mike Cunningham
Good or bad?

Marc Lopez
Yeah, good or bad, man.

Mike Cunningham
Absolutely. Let’s just talk about video evidence generally. We did a case out of Rush County where a pastor was accused of these heinous acts of child molestation—sexual acts that if anybody hears about them, they recoil. It’s awful. It’s terrible. In reading his report, the officer would characterize things to make them sound really bad, but then when we watched the video evidence of interviews with the alleged victims—when we listened to what the kids were actually saying—it was the opposite of what was in the report. 

And so to your point—summarizing an argument does not actually make it so, but there are so many instances where our clients tell us they were getting the runaround. Then we watch the video, and we just have to say, I’m sorry, buddy, it’s not there. You’re cooked on this one. Right? I’m sure you’ve had instances like that.

Marc Lopez
Yeah, Indianapolis isn’t the best about having dash cams or body cams, but some of the surrounding counties—notably Hamilton—they have video where it starts when the officer taps the brake. So I’ve had many instances where clients are like, I didn’t do anything wrong. I didn’t cross the line. I did not do this, this, this or this. As you and I both know, alcohol impairs your judgment and impairs your memory recollection. 

I don’t believe for a minute the client is lying to me—they just don’t remember it correctly. I’ve had enough cases like this that we’ve had to set up a standard operating procedure for how to get the recording of the traffic infraction to the client without blowing up the office bandwidth. I’ve had plenty of cases where people are like, Well, I guess I did cross the center line.

Mike Cunningham
Right, right.

Marc Lopez
The video recording ends it, you know what I mean?

Mike Cunningham
Yes.

Marc Lopez
In preparation for this talk with you, I typed in Google “body cams exonerating police”—and there’s numerous times where officers were cleared of sexual assault allegations or excessive force. The coin flips both ways. There’s also numerous—

Mike Cunningham
That’s exactly right.

Marc Lopez
I believe it was in Baltimore where the officer recorded himself planting drugs. That’s insane. And there’s another officer in Florida who was turning off his dash cam or his body cam and then planting drugs in vehicles, and basically, an attorney got involved and was like, It’s kind of funny how you’re always turning off your camera before you find these drugs. 

It works both ways. It protects people, and it gets to the truth. This is what happened—irrespective of bias, irrespective of your ability to recollect—this is the truth.

Mike Cunningham
Let me say again: Body cams and dash cameras are not necessarily good for the defense. Right? This is not some cottage industry for us where we’re gonna be making a bunch of money. 

In fact, it does not allow us as defense attorneys—as auditors for the rule of law—to say, Did you rule this out? Did you rule that out? Did you rule that out? It significantly hampers our ability to present reasonable doubt, which is what the State is required to exceed. 

One of the articles that you shared that I thought cut right to the point was the police foundation article. It’s called Body Cameras Improve Our Justice System, and they point out three things that body cameras can do. They: (1) improve accuracy in criminal investigations; (2) protect against miscarriage of justice against the public and police—both ways; and (3) improve training and standards. 

There’s a notion going around right now that—because you and I have never been police officers, and we don’t know what it’s like to be under those stressful situations—we can’t critique them too much. I don’t know that that’s the right attitude to have, because if we are able to see what is actually happening, then maybe you get something good. Maybe you get something bad, but at least you know. 

We have to be able to constructively criticize and empathize with the officers. This technology is designed to improve what we’re doing. How do you think Tom Brady or Peyton Manning got to the height of their careers? Do you think it was maybe because Bill Belichick or Tony Dungy was sitting in the quarterback room on Monday morning, watching film, saying, Here’s what you did wrong, and here’s what you did right? Those guys improved and were better for it. It’s not personal. 

The price of liberty is eternal vigilance, and if we are not monitoring these things—especially these taxpayer-funded entities—then we’re not really helping ourselves out as free citizens.

Marc Lopez
You’re absolutely right. Police cams don’t help criminal defense attorneys as much as we’d want them to, but they can help restore faith in the system. 

One of the articles that you and I were reading was talking about how body cams do result in a decreased use of force by police officers, and body cams do result in less complaints against individual officers—but this still may not justify the cost of the cameras and storage. 

That’s absolutely ridiculous, because people’s belief that the system is working is invaluable. I hate these economic arguments against body cams because the faith is absolutely worth it. 

As we’re filming this, Indianapolis is going through its own crisis moment, because there was a partial video—a Facebook live feed of an officer shooting, and I truly believe that the hesitancy of IMPD to implement a body cam policy years ago—all it did was to say, Hey, we’re not gonna deal with this till later. 

I totally agree with you—video can help us improve. I know you’re dedicated to being the best attorney you can be. I’m watching Gerry Spence on YouTube. During this whole COVID pandemic, a lot of the live trainings were canceled, so many of the training providers are doing the online thing. I’ve gotten used to daily Zoom sessions on how to be better at cross examination, how to better understand DUI science—I mean, we watch others do things so we can become better lawyers ourselves. Police officers are no different.

Mike Cunningham
Marc, you make an excellent point about the economic arguments. I don’t know that we can afford not to fund these things. When we wax poetic about our Constitution and the Bill of Rights, there are already a lot of folks focusing on the First and Second ones, right? We don’t much get into the Fifth Amendment that gives your right against self-incrimination or the right to due process of law. 

We don’t much talk about the Sixth Amendment, which is your right to counsel in a fair trial. We don’t talk much about the Eighth Amendment, which is against excessive bail and cruel and unusual punishment. The Fourth Amendment—that’s your right to be free from unreasonable government searches and seizures. 

We’re talking about multiple rights that have been enshrined in our Constitution to protect us—the citizens—against government authority, and if we have some tool that can help us, I don’t know that we can afford not to do it. We must do it.

Marc Lopez
Your passion got me smiling, because you’re right. These rights exist to protect the average person from the government. You’re absolutely right about that, and a body cam would aid that exponentially.

Mike Cunningham
I have to say—I get worried when two defense attorneys come together, and we’re like talking about our experiences. I don’t hate police officers. In fact, I’m related to one. My sister is a deputy sheriff in Cincinnati. She does excellent work. I’ve done a ride-along with her, right? I respect the job that they do. And I often say they’re better people than I am in many ways, because they sign up for a dangerous job. 

But with much power comes much responsibility. And I’m sorry, but when you sign up for a taxpayer-funded job—when somebody is entrusted with awesome authority and discretion to use a badge and a gun to potentially put somebody in jail, I’m gonna guard my liberty pretty jealously. I’m going to hold your feet to the fire, so to speak, and that doesn’t mean that I don’t like you. It just means I like my liberty more.

Marc Lopez
Number one, I always appreciate a Spider-Man reference, and number 2, it’s 100% true. You and I have both been doing trials for a while here, and people are always like, Well, if there’s not a video camera, there surely is other evidence. And I don’t think the average person who’s living their life understands the words of a police officer are enough to put them in jail: They were intoxicated. I saw them drive.

Mike Cunningham
It carries a lot of weight.

Marc Lopez
When I was a young prosecutor, there was a learning curve for me—how just the words of the officers were enough for a conviction. And there’s numerous appeals, but the Indiana Supreme Court has said, The words of the police officer are more than enough to sustain a conviction. 

You made a great point: 21st century trials require 21st century evidence. I was listening to a podcast about murder trials in the 1800s—they hardly had any evidence. Evidence evolves, and there’s expectations that evolve along with it. 

Even though IMPD does not have body cams, I’ve seen numerous officers turn their laptop camera on when someone’s saying crazy things. I’ve had officers pull out their personal cell phones and record video. Then you ask him, Hey, that’s very unusual. Why did you do that? And the officer says, Because the defendant was acting crazy, and I didn’t wanna be accused of anything. Cameras help everyone.

Mike Cunningham
Great examples.

Marc Lopez
Mike, here’s a question I have for you: Body camera footage is not typically released while the case is being investigated. I hate that, because it’s a way of controlling the narrative. What are your thoughts on this, where agencies don’t release the footage immediately?

Mike Cunningham
Well, the legal answer would be, It depends—right? On the one hand, we don’t want a trial by media. But on the other hand, you’re exactly right—if you’re gonna promote the bad, why not show everything? Let’s have it out. It’s a difficult thing, because you want a fair trial, but the State is very selective in what it releases, and I’m not a fan of that. 

Marc Lopez
They’re always slow to release footage when there is allegations of wrongdoing.

Mike Cunningham
Correct.

Marc Lopez
When the video is exonerating the police officer—Bam! Next day, Here you go.

Mike Cunningham
That’s right.

Marc Lopez
I don’t like the idea of the agencies having control of the footage—

Mike Cunningham
There is an Indiana law—I don’t have it in front of me, but it talks about who can request body camera footage, when it can be released, and it goes as far as talking about redactions of certain things, which goes to your idea about controlling the narrative. As free citizens, this does not necessarily put us in the best position to watch the watchers.

Marc Lopez
Sometimes I get into arguments with prosecutors—Well, you know, Marc, you’re not law enforcement. You’re not entitled to all the information. 

Mike Cunningham
I would suggest you are a law enforcement officer. Your whole job—the thing that you raise your hand and swear to protect and defend is the Constitution of the United States and the State of Indiana. That’s the law. You are a law enforcer. 

I mentioned this to you in our text, but I hate that we’re called criminal defense attorneys. I don’t defend criminals. I defend the Constitution. I defend people who are accused of committing crimes by the government. So I’m a liberty defense attorney, if anything. 

And yes, I am a law enforcement officer. You may not like how I go about enforcing the law, but yeah, I get to do that. 

Marc Lopez
No, you’re absolutely right. I love that. We’re the top law enforcement officers. We are the ones who get paid to question the government. 

Mike, is there anything else you wanna touch on?

Mike Cunningham
I guess one thing is how cameras are used. A camera is no good if it’s turned off. A camera is no good if it’s altered in any way. It’s no good when you have the ability to say, I wanna record this, but I don’t wanna record this. In any policy discussions about body cameras or dash cameras, we have to be very serious about how they’re used. 

Marc Lopez
There’s a civil jury instruction that basically says, Where evidence that should exist is missing, you can use that as an adverse inference. In other words, the jury’s allowed to presume that the reason the evidence is “missing” is that it would have been bad for the State.

Mike Cunningham
Sure.

Marc Lopez
I’ve never been able to get that instruction into a jury trial.

Mike Cunningham
Right?

Marc Lopez
But it’s so important. Somebody has to figure this out. This is the 21st century, and we don’t have body cams in every single police jurisdiction in the state in the country.

Mike Cunningham
And for those who say, This is a problem of only a few bad apples—well, let’s root out those bad apples, and allow the good officers to get better and ultimately get to the truth.

Marc Lopez
I love it. Thank you so much, Mike, for joining me today. What is the best way for someone to reach you?

Mike Cunningham
Thank you, Marc, for having me. I really appreciate it. You can reach out to me on my website, which is mcmillin-law.com. You can also call me at 812-221-1011. And otherwise, find me on Avvo, Facebook—anywhere that gets your social media.

Marc Lopez
You have a great day, Mike. I’ll talk to you soon.