Instruction 3.860, Criminal Model Jury Instructions for Use in the District Court

UNRECORDED POLICE ENCOUNTER

This instruction is tailored so that it may be given in cases where a police officer

unintentionally or negligently failed to comply with their police department’s policy

to record an interaction between the officer and the defendant or a civilian. If the

officer’s failure to record was intentional, the trial judge may consider whether

Instruction 3.900, Intentionally Not Recorded Exculpatory Evidence, should be

given.

You have heard testimony about an encounter between a police

officer and [the defendant] [a civilian]. There is evidence that the

[___________ Police Department] has a policy of recording encounters

with a [defendant] [civilian], but that this encounter was not recorded.

This is a factor you may consider in evaluating all of the evidence in

this case.

With respect to this factor, you should consider:

i. whether a recording of the encounter between the police

and the [defendant] [civilian] would reasonably have been

expected to lead to significant evidence of the defendant’s

guilt or innocence; and

ii. whether the evidence provides a reasonable or adequate

explanation for the lack of video evidence of the encounter.

Optional In determining what is an accurate depiction of

a past event, you may consider the value of having a

recording of the event as compared to or in addition to

a witness’s recollection of the event. Human memory

may be affected by factors including the stress or

demands of an event, bias (implicit or explicit), or by

memory loss or impairment. In comparison to the

human memory, a recording might provide an objective

and more accurate view of a prior interaction between

law enforcement and a [defendant] [civilian]. Keep in

mind, however, that a recording might only show a

portion of the overall event and capture only one

perspective or angle of the interaction.

See Commonwealth v. Gomes, 470 Mass. 352, 369 (2015), citing Supreme

Judicial Court Study Group on Eyewitness Evidence: Report and

Recommendations to the Justices, at 15 (2013) (“memory does not function

like a videotape, accurately and thoroughly capturing and reproducing a

person, scene or event. … Memory is, rather[,] a constructive, dynamic and

selective process.”)

If you determine that the lack of recording was significant and

not adequately explained, you may consider whether the omission

tends to affect the quality, reliability or credibility of the evidence

about the encounter. These considerations involve factual

determinations that are entirely up to you, and you are free to give

these considerations whatever weight, if any, you deem appropriate

based on all the evidence.