Missing Body-Worn Camera Footage
Generally, a police officer must wear and activate a body-worn camera or dash camera (if the patrol car has a dash camera) when responding to a call for service and “during any interaction with the public initiated by the peace officer, whether consensual or nonconsensual, for the purpose of enforcing the law or investigating possible violations of the law.” § 24-31-902(1)(a)(II)(A), C.R.S.
If a police officer fails to activate the camera as required or tampers with footage of the camera’s operation when it is required to be activated, “there is a permissive inference in any investigation or legal proceeding … that the missing footage would have reflected misconduct by the peace officer.” § 24-31-902(1)(a)(III).
Further, for “any statements or conduct sought to be introduced in a prosecution through the peace officer related to the incident that were not recorded due to the peace officer’s failure to activate or reactivate the body-worn camera as required … or if the statement or conduct was not recorded by other means,” there is “a rebuttable presumption of inadmissibility.” Id.
For the court to apply an adverse inference against law enforcement, related to the missing footage, the premise of wrongdoing must be credible. People v. Giovanni, 2025 WL 1661392, fn. 3 (June 12, 2025) (Unpublished).
Adverse inference will not apply if the body-worn camera was not activated due to a malfunction and the officer was not aware of the malfunction or was unable to rectify it before the incident, provided the police agency’s documentation shows the officer checked the camera’s functionality at the start of the shift. § 24-31-902(1)(a)(III).
By the terms of the statute, the remedies outlined above should apply to testimonial motions hearings and jury trials.
Defense Steps
Review discovery. Was body-worn camera provided? Was all the body-worn camera footage provided? If not, determine what is missing.
Reach out to the prosecution to inquire about the specific missing body-worn camera footage. Does the footage exist?
If the footage exists, then it must be provided. Rule 16(I)(a)(1)(VIII). Ask for the footage to be produced. If this does not lead to production, file a motion for specific discovery.
If the footage does not exist, the defense needs to find out why. This could lead to sanctions under section 24-31-901.
Talk to your client about the interaction with law enforcement. If the footage does not exist, ask your client what it would show if it existed. If the evidence would have been favorable, this could lead to a due process violation pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963).
Precedent on missing body-worn camera footage is limited. If faced with missed body-worn camera footage, the defense should collect as much information as possible. The information gathered will guide the next best steps and determine if sanctions and what type of sanctions are appropriate.