Ivy Bernhardson, the chief judge in Hennepin County, laid down the rules in December on how prosecutors and defense attorneys should handle video footage from police body cameras before criminal trials.

The bottom line: Don’t go sharing the videos with the public.

Bernhardson’s Dec. 19 order hews closely to the new state law that sealed most body camera video from public scrutiny, all in the name of privacy. The Legislature rejected the arguments of transparency advocates who said that body camera footage can only hold police accountable if the public actually sees it.

With each Minneapolis patrol officer now equipped with a video camera, the state’s largest judicial district now expects a flood of new evidence for cases large and small. The little cameras create all kinds of thorny privacy questions because they capture images and audio from wherever the officers go, including inside hospitals and homes, and of anyone who happens to come within the frame.

The volume of the video could be immense, and prosecutors realized it could delay cases for months if they had to edit every video before handing it over to the defense during discovery, said David Brown, deputy Hennepin County attorney for the criminal divisions.

So Hennepin prosecutors met with the chief judge and representatives of the Hennepin Public Defender’s Office, which handles 45,000 cases a year. The result was Bernhardson’s order, which asserts that prosecutors and defense attorneys have to follow the guidelines of the law, which save for “certain narrow exceptions,” classifies body camera video as off-limits to the public.

“All this order does is extend the bubble of privacy around the public defenders as well,” Brown said.

“When you’re dealing with some of the most sensitive information you can have, people at some of their most private moments, some of their most embarrassing moments, everybody wants to make sure we’re handling that data well.”

Despite Bernhardson’s order, state law requires any investigative data, including video from body cameras, to become public if it’s formally entered into evidence in a trial. Most cases never go to trial, however.

Mary Moriarty, the county’s chief public defender, said her main goal in negotiating the usage of body camera video was protecting her clients’ rights: ensuring they can see the evidence against them, while applying the same rules to everyone when it comes to sharing it outside the courthouse.

“There could be situations where other parties, not us, would be handing out videotape that could be out there on YouTube for all we know,” Moriarty said.

The advent of body camera video in criminal cases is “like every new thing,” she said. “It’s overwhelming at first, but ultimately turns out to be a step forward for the criminal justice system.”.

‘Secrecy trend continues’

It all sounds wholesome. A level playing field, the rights of criminal defendants safeguarded, respect for privacy and dignity.

But restricting this kind of evidence conflicts with another tradition in the justice system.

It’s the place where the truth can come out when it’s been suppressed everywhere else. Courts are open because the public has a role in ensuring the system is working.

The court’s decision to clamp down on body camera video is another setback for accountability, said Rich Neumeister, a citizen lobbyist for open government and privacy rights. “The secrecy trend continues,” he said. Video and other digital evidence will soon be the heart of the justice system, he said. By sealing it off, “the public will never be able to gauge whether it’s appropriate or not.”


Contact James Eli Shiffer at james.shiffer@startribune.com or 612-673-4116.