When You're the Witness With the Secret Video

04/23/2015 09:29 am ET | Updated Jun 23, 2015

You're a random person walking down the street. Maybe you're a minority; maybe not. You stop cold because you can't believe what you see: the police are there and it is just horrible and unthinkable, even though you know this has happened in other areas of the country -- an officer is shooting at an unarmed man who is running away, or at someone getting out of a car apparently looking for help. And if that weren't enough, other police officers stand by, doing nothing. Thinking that if you intervene you may be shot at or otherwise restrained, you manage to capture much of what is happening on your smart phone. Your video ends with a man lying on the ground -- perhaps unconscious. Maybe even dead.

It is clear as a bell that you can't (and you won't) show the milling police officers what has been secretly recorded and preserved, that now rests in your hip pocket. Perhaps you fear that that if you show the police what you have, your phone will be seized "as evidence," which evidence may be, shall we say, inadvertently deleted ("oops!") by the police. Maybe worse, you're afraid that you will be the victim of police retaliation because you possess evidence that may undermine the precious "blue wall." Or you even fear that the community's chief prosecutor -- the local DA -- and his office are simply "in bed" with the police department, and will accordingly find a way to circumvent justice even though you have unequivocal proof of the events.

No police officer spotted you surreptitiously taping the events. So no one knows that you even exist, or that you have any evidence in your possession that will put the shooter behind the eight ball. What to do? Tick tock!

First you think of your personal concerns -- if the police knew of your video, would they retaliate and arrest you for some offense you never committed so that you are now in the "system," a system you may never escape? Or maybe the problem is that your own affairs aren't exactly in order -- perhaps your immigration status is in question, your child support payments are in arrears, or your business practices are in disarray or on the edge. Any investigation into you would only hurt you and your family. Maybe the simplest answer is for you to erase the video that incriminates the police and just go about your business as if you never saw anything. After all, private citizens -- and it's a fact -- have absolutely no legal obligation whatsoever to inform law enforcement of their observations, as long as they take no affirmative steps to obstruct the criminal investigation. In a phrase: why make trouble, especially for yourself and those you love?

But let's assume you overcome your very real personal concerns because, frankly, you can't believe what you witnessed and you want to do the right thing. But you're still concerned -- you don't have enough clout (or, for that matter, any clout) to ensure that justice is done, at least justice as you see it from your civilian's viewpoint. You don't know whom you can trust. You have no confidence in the police chief, the local DA, or legislator of whom you are a constituent. And you don't have the financial wherewithal to hire a lawyer who can get you to a high ranking public official of unquestioned integrity, one who will not "accidentally" allow the recording to be destroyed.

And we haven't even discussed race relations yet. Assuming -- as has happened in far too many places, including Staten Island, N.Y.; Ferguson, Mo.; and North Charlotte, N.C. -- the cop is white and the victim of the police action is not. Does that change what you do? Or how you do it? Because, likely, you are not looking to incite rioting. No, you want to see that justice is done -- that a police officer doesn't get to pump five bullets into someone and then plant a Taser next to his body.

You are afraid to go to the authorities -- unfortunately for all the right reasons. Do you post the video on social media? Do you go to the press? Do you call the local newsroom and play the tape, letting them run with the story? Now, to be sure, the District Attorney wouldn't want you to do that: assuming he wants to find the truth, he would want you as his star witness. And he would thus want complete control of what you say to others. He would not want to see you give a potentially inconsistent statement -- that can later be cross-examined if the case ever goes to trial -- to newscasters, or even to the viewing public. And to be sure, you don't want that either. The last place you intended to find yourself when you were walking down that street is in a courtroom explaining what you meant when you said this or that.

And there is this: even if I am secure that I can capably bring the video to a prosecutor who will do what is right, to someone I have known for decades to do nothing but righteously enforce the law no matter who may be the target, I would make sure there are safely hidden copies of the entire video -- start to finish. Because whether on social media, the press or even in a courtroom, it is too easy these days to take a clip or sound bite out of context. Whether a clip encourages the public to form "hang 'em high" opinions before the true facts are fully developed or whether it risks the possibility of prosecutors "pulling the [prosecution] trigger" on suspects before all of the facts are really in, that was not what you intended -- or wanted.

I am a former prosecutor and am currently defense counsel. Sure, our judicial system can be improved, and I have written about some of its failures before. But at the end of the day, I believe strongly in the justice system and believe (and not naively given my experience) that there are many, many good people in the system who strive to do justice at all costs. That I would even suggest the possibility that someone with crucial, material evidence proceed directly to the media in the first instance is, frankly a sad commentary. But it reflects the understandable discomfort of large segments of the public with the way criminal justice is dispensed in many communities across America, particularly in cross-racial killings by police.

If you find yourself in the challenging position of having made such a recording, whatever you do, don't go it alone. Ideally, find that lawyer or advocate you can trust. If that is not realistic, find a person who recognizes that you will deliver the video, but who has your best interests at heart. In other words, not someone with their own agenda -- who may decide on their own, without your consent, to alert law enforcement or the media, or both, to what you've got in your hip pocket. This way, if you do decide to go first to law enforcement (being sure to let them know that the copy you give them isn't the only one), if you can later tell that the video is somehow being swept under the rug, you have a confidante, an ally (also armed with a tape copy), to help make sure that law enforcement will be faced with the consequences. And, by all means, don't volunteer to appear on local news to get your proverbial "15 minutes."

Cynical as it may sound, given the realities of the day, the immortal words of Mark Twain come to mind: "Trust everyone, but make sure you cut the cards."