Video, Evidence & the Practice of Law (1)

The New Record (2)

Dialoguing with a Mentor (3)

Chirp Chirp. It was his Blackberry. My voice trailed off.

“Keep talking, sweetie, I’m listening.” I was doubtful but picked up my line of questioning:

“Did you ever imagine that one day you would be holding a computer in your hand?”

“No sweetheart -- I never imagined we would go into space, or have a black president, or watch movies in the middle of a trial. He said all this without pulling his eyes away from the sleek black device in his hand.

Finally he looked up at me with an apologetic smile. “Sorry, no more interruptions.”

“Okay, so you really didn’t anticipate cameras in the —” Buzzzzz. His phone danced on the table, my lips stopped moving. He cut his eyes to the machine and quickly looked back at me. His gaze was intense and open, the kind to assure me that I had his undivided attention.

“What’s your question?”

“I’m just surprised you didn’t anticipate the use of video evidence. What’s your opinion?”

“Why do you think the police department installed cameras in police cruisers? Footage is just another perspective to evaluate events.” He was a criminal defense attorney and litigated a number of successful Fourth Amendment cases.

“Are you telling me the use of video evidence doesn’t change your trial strategy at all? When you learn that the prosecutor will share damaging footage from a correctional facility or a police cruiser, you don’t get a little intimidated when it looks bad for your client?”

“That’s like asking me if I’m afraid of a photograph or an x-ray that is unfavorable for my client. It’s all the same to me.”

“But do you think videotapes distort evidence or clarify it?”

“Depends on who you ask – some people will find portions prejudicial others will find portions illuminating. Videotapes add to the record and most judges will not view them as conclusive. It’s the jurors that you have to worry about.”

“Okay, so – ”

Chirp Chirp. He instinctively looked down at his Blackberry despite his promise. A frown materialized on his face.

“I’m really sorry, Chris, but I have to run. We’ll do this again the next time I’m in town.” He was talking about lunch at Del Friscos in Times Square.

“But I have one more question.”

“Shoot,” he said helping me into my tan trench coat before turning towards the door.

“What does being a successful litigator require?” I had to shout because with his long legs he was already several feet ahead of me. I jogged to catch up.

“It’s being lucky enough to win all of the cases you should win and most of the cases you should lose.”

When we made it to the curb I raised a brow in puzzlement and he winked. Before I had time to pose a follow-up question he was replacing a passenger who had alighted from a taxi advertising a gentleman’s club on the roof.

Chirp Chirp. It was my Blackberry. "Be good!"

Enter Jerome Frank and the Legal Realist School of Thought

Before taking Law and Contemporary Society I would have shrugged off my mentor as cynical; of course video usage marked the most significant development in the history of evidence and consequently the practice of law. Judges and jurors would attribute undue weight to video evidence, making it determinative of trial outcomes. However, after spending some time with Jerome Frank and his contemporaries, I had a different opinion. I knew that when my mentor mentioned cases that should be won and lost he was referring to the notion that the outcome of cases should be predictable – based on precedent. The luck part was a stroke of legal realism that I would have missed. In reality, the only thing predictable about legal decisions is that people determine outcomes, not precedent or a particular type of evidence. Some view this subjectivity to mean that biased interpretations of facts in your favor merely amounts to good fortune. Any decent litigator must have basic legal skills. But the best ones also harbor a healthy dose of rule and fact skepticism driving the real work of lawyering, studying the players in any case. This is why litigators spend so much time learning about judges and selecting juries.

Conclusion

I am doubtful that we will ever develop a technology that reliably eliminates subjectivity in interpreting evidence. If I am correct, the types of evidence that make it into the record today, tomorrow, or a century from now will have little impact on the primacy of understanding psychology to practice good law.

Grade.

1.

2.

3.

First case of what, Crystal? You changed the text I suggested only very slightly, but this is one change you made, and I don't understand it. First case to involve the interpretation of video evidence? Not by decades. First case in the Supreme Court? Not true either. What is the firstness here?

Statements at oral argument aren't law. They aren't part of the decision. They don't constitute grounds for analysis of holdings.

This, on the other hand is a quotation from an opinion, without quotation marks, and without a link.

You added the word "indisputable," which isn't anywhere in the opinion. Of course it can be disputed: the plaintiff disputes it. But the Court holds that the record as a whole so "blatantly" discredits the plaintiff's version of events that it overcomes the presumption that disputed facts should be interpreted favorably to the non-moving party in assessing whether summary judgment is proper, finds no material issue of fact in dispute, and grants summary judgment. By slightly distorting the situation here, you begin the process of confusing yourself about what the judgment means.

The majority was so confident in the legitimacy of its fictional reasoning that for the first and only time in the Court's history, it placed a link of the videotape on the Court's website and uncharacteristically invited the public to see for itself. The reasoning process isn’t fictional,

This is shuffling. I asked a question designed to spur reconsideration of the word "fictional," which seems misplaced. You first reassert it, than deny it, then reassert it in a more confusing form. I repeat the question: what's fictional about this reasoning?

but the conclusion justifying summary judgment is fictional in a formalist sense. The videotape does not justify summary judgment since there is an actual dispute as to whether a material issue of fact exists.

All you're saying is that you think the Court is wrong in finding no material issue of fact exists. That doesn't make what they say "fictional" in any sense. It just means you disagree with them.

This dispute is embodied in persons of the majority and the dissent. Of course, as a practical matter the standard must be answered and all judges agree that the conclusion is legitimate.

What? Opinions on summary judgment issues must be unanimous in order for summary judgment to be granted in an appellate court?

Again, I don't want to get into assessing the flaws in this absolutely ridiculous so-called study. It seems to be your purpose to use it to demonstrate that the Court is wrong, that rational fact-finders operating in the context of a trial limited by the rules of evidence, and taking the record as a whole, could not find for the plaintiff on the factual issues he claims are disputed. But the study, even if it weren't ludicrously misconducted, can't shed any light on that question, because that's not what the subjects did. They didn't read the record, see the other evidence, sit through a trial, and come to a different factual conclusion.

Of what?

Scott v. Harris raises doubts as to the impact cameras can have on improving objective fact-finding in the courtroom. Even further still, it justifies criticisms of summary judgment as a tool of justice. The literal standard of summary judgment is directly answered in the negative when rational but variously-composed juries reach different judgments on the evidence evaluated by the appellate court.

No. Now you are copying my language out of context to make it support a proposition it does not address. Summary judgment could be appropriately granted even if real-world juries would ultimately come to different opinions about the facts after trial. You don't state any law for your proposition, you don't deal with the cases the Supreme Court relied upon in coming to its conclusion, and you don't show how this supposed principle of yours works in cases without video evidence. Nor have "variously-composed" juries done anything. A foolish and badly-conducted study showed individual people a fragment of evidence, namely the videotape, and jumped to unfounded conclusions based on what those people said.

In other words, it is highly unlikely that circumstances ever exist in which there is no disputed issue of material fact from a formalist perspective.

You have misstated the law. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247–248 (1986).

When an appellate court engages in fact-finding it assumes that it is not just a fact-finder but all fact-finders.

Again, you have taken my language from my comments out of context to support another proposition entirely.

The effect is the power to dispose of a case entirely by a determination of a factual issue.

But that's true of all summary judgments, no matter which court renders them.

This makes sense for administration and expediency but is inherently unjust.

So that what started out to be a proposition about video evidence has now become an argument against all summary judgment. That should have clued you to the fact that something had gone wrong.

The logical flaw here is the conflation of dispute over whether a genuine material issue of fact exists with genuine dispute over a material issue of fact. When an appellate court finds by a vote of 2-1 that there is no genuine material issue of fact in dispute, and grants a summary judgment denied below, there is a dispute about whether a material issue of fact exists. There may or may not be a dispute about the facts. I can believe that an issue requires trial while being in no dispute with other decision-makers about how I believe, on the record as it exists, the issue will be resolved.

But the actual situation in Scott, which you never adequately describe, is still one more step removed. Here, the defendant policeman seeks summary judgment in a damages action for a constitutional tort on the ground that no constitutional right was violated. Substantively, the issue turns on whether the plaintiff has endangered the public. Because plaintiff is the non-moving party, the Court's summary judgment jurisprudence says the facts necessary to determine whether other facts are in dispute should be viewed favorably to him. So viewed, because the plaintiff says the facts show the chase wasn't dangerous, there is a dispute about whether he was endangering the public, which will in turn require a trial, which means summary judgment cannot be granted on the issue of whether a constitutional right was violated by the means deployed to stop him. But the Court says, hardly for the first time, that if the record as a whole shows that no reasonable fact-finder could believe the non-moving party's version of the facts, they need not be considered favorably to him in deciding whether trial is required on any particular factual issue "in dispute." (This is not only unsurprising law, it's necessary law, in order to avoid the tautological trap into which you fall here, asserting that as long as anyone, including the other litigant, says there's a dispute, summary judgment can't be granted.)

So the question now becomes, does the record as a whole show that the plaintiff's version of the chase is so lacking in credibility that favor to his view need not be shown in deciding whether there are triable issues of fact? The Court says the video of the chase achieves that level of "blatantly" discrediting his version. (If Justice Scalia weren't being sloppy, he'd have used the correct word "flagrantly" rather than "blatantly" here, because the sound track of the video has nothing to do with his reasons for reaching that conclusion.) Judges below, and one judge on the Supreme Court, disagree. But a dispute about whether the plaintiff's version of the facts has been flagrantly discredited by the video is not a dispute about whether there are material facts in genuine dispute, let alone a dispute about whether summary judgment should have been granted or the case should have been remanded without entry of judgment.

As I said the first time through, appellate fact-finding is an interesting subject, which gives rise to many subtle, intricate. and revealing questions. But the path this rewrite travels doesn't get to them. You tried to minimize rewriting and avoid rethinking, adopted language from my comments into the text out of context, didn't go back to take apart the law on which the Court relied in the opinion you were analyzing, and lost the thread of the original question about the nature of video evidence.

I think the way forward here is to take the machine apart and rebuild it. What's the subject: video evidence, appellate fact-finding, or summary judgment standards? What's the complaint about Scott v. Harris, if it's still relevant once the subject has been defined? Are you actually arguing that summary judgment shouldn't exist? If not, what's the problem with the Supreme Court's standard, if any? Are you actually arguing that summary judgment should not be granted on appeal if a motion is wrongly denied below? If so, why?

Why not boil all this down to two or three sentences? Because video recording devices are now in every pocket, video evidence will soon be commonplace. Some may think of the advent of omnipresent video as a major step forward in objective fact-finding, replacing fallible testimony whose credibility must be estimated with "accurate" testimony by robot witness. But even the first cases in the area give rise to doubt.

That's "John Paul Stevens." You can't forget to edit your draft and get a Supreme Court Justice's name wrong. That creates a judgmental emotion in the mind of the reader that you can't ever afford.

had a distinctly different interpretation of the “dispositive” videotape. He offered a description and derided his colleagues at the same time:

Here some interesting points are raised that you don't deal with.

Why is the reasoning "fictional"? Eight judges have "read" a video one way, four judges have "read" the same video differently. Neither side believes, as one might, that neither reading of the video is sufficient in itself to decide the question at issue. All judges agree that it is appropriate for the appellate court to engage in fact-finding _de novo_ in order to determine whether a material issue of fact exists, and that the video "is" fact. If that's fictional, all twelve appellate judges agree to it. If it isn't, then what's fictional about what the Court majority does?

Not really. Appeals from denial of summary judgment always present the possibility of summary judgment in the appellate court. Such outcomes do not "foreclose the proposition" that whatever evidence they are based on can be interpreted "differently." Appellate court fact-finding is an interesting subject with many subtle branches.

The effort to show that juries would have decided differently is more valuable than you let on, and less "ideological" in its consequences than your summary of the results indicates. The literal standard is directly answered when rational but variously-composed juries reach different judgments on the evidence evaluated by the appellate court. The usual failure of appellate courts to realize that when they find facts they are a fact-finder rather than all fact-finders is easier to describe if one doesn't bother showing evidence to 1350 Americans, which is likelier to confuse than to enlighten a law professor.

Why not put these links in the text?

The Impact of Video Footage on Legal Decisions

-- By CrystalVenning - 15 Feb 2012

The Problem

In Courts on Trial: myth and reality in American Justice Jerome Frank exposes the uncomfortable reality surrounding judicial decisions stating: “…a conviction of murder does signify, at best, no more than that the trial judge or jury believed the testimony of some witnesses rather than that of others...” This quote describes what Frank calls subjective interpretation. It highlights the psychological disposition of all persons, especially judges and juries, to engage in a mode of fact-finding that reflects personal biases. It is consistent with the thesis of Cohen’s functionalist manifesto reducing judicial opinions to mere rationalizations for decisions arrived at by incoherent means. It is an inevitable reality of a judicial system fraught with imperfect information and cognitive diversity.

So how do we triumph over these phenomena to reduce the scourge of subjectivity in fact-finding?

A Viable Solution?

Some find hope in technology. Video cameras, in particular, capture real events, in real-time. Footage can be analyzed in slow motion and fast motion. It can be rewound and fast-forwarded, viewed backward, forward, still, or moving. Best of all it can be watched over and over again. But can this tool significantly reduce subjectivity in fact-finding, transforming us from magicians into scientists?

Unlikely

This optimism may be misplaced. Using camera footage in fact-finding might not improve the logic of legal decisions. (This assumes that the footage has not been altered in anyway.) I will use the 2007 Supreme Court case of Scott v. Harris to illustrate this point.

The Case

Scott v. Harris involved a lawsuit brought by a motorist against a sheriff’s deputy. The motorist, Victor Harris, engaged a police officer, Timothy Scott, in a high-speed chase. It concluded with the officer deliberately using a dangerous apprehension maneuver, which involved ramming into Harris’ vehicle. The maneuver caused Harris’ car to flip over and crash, rendering him a paraplegic.

Harris claimed that the action amounted to an unreasonable seizure under the Fourth Amendment. His flight did not pose a sufficient threat to the public to justify the use of this deadly maneuver that crippled him. The Eleventh circuit denied the police officer’s motion for summary judgment. On appeal the Supreme Court had to determine if a genuine issue of fact existed as to whether Harris’ flight posed a danger to the public sufficient to justify the use of deadly force against him.

The case was decided on summary judgment and it was reviewed de novo. Two versions of the facts surfaced. However, the existence of an uncontested videotape capturing the events from a camera inside the police cruiser resulted in a dramatic departure from the traditional fact-finding process of relying predominantly on oral testimony and written records. Eight justices cited the videotape as dispositive evidence contradicting Harris’ version of the events that his flight did not pose a sufficient danger to the public.

What the Justices Had to Say

The transcript of oral argument from the case quotes Justice Alito stating, “I looked at the videotape on this. It seemed to me that [Harris] created a tremendous risk [to] drivers on that road.” Justice Scalia followed with a comment that drew chuckles from the courtroom crowd: “He created the scariest chase I ever saw since ‘The French Connection.’”

The lone dissenting Justice, Paul Thomas, had a distinctly different interpretation of the “dispositive” videotape. He offered a description and derided his colleagues at the same time:

I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways – when split-second judgments about the risk of passing a slow-poke in the face of oncoming traffic were routine – they might well have reacted to the videotape more dispassionately.

Legal Magic

Three judges on the Court of Appeals shared Justice Thomas’ interpretation that the videotape footage supported Harris’ version of the events. Despite the fact that four judges disagreed with the majority, the Supreme Court claimed that the videotape provided indisputable evidence that no reasonable jury could conclude that Harris posed no substantial and immediate risk of personal injury. It granted the police officer summary judgment.

The majority was so confident in the legitimacy of it’s fictional reasoning that for the first and only time in the Court's history, it placed a link of the videotape on the Court's website and uncharacteristically invited the public to see for itself.

A Functionalist Approach?

Whose Eyes are you Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism describes a Harvard empirical study that would have made Cohen proud. Social scientists showed the videotape footage to a diverse sample of 1350 Americans. Although a majority agreed with the Supreme Court’s view, a portion of the sample including African Americans, low-income workers, residents of the northeast, Liberals and Democrats interpreted the footage in favor of Harris. According to the study, these participants generally found that although the chase posed a danger to the public, the police officer was overwhelmingly responsible for creating that risk rather than Harris! People identifying with those categories also tended to perceive the dangerous police maneuver as an unnecessary use of deadly force.

Conclusion

Scott v. Harris suggests that cameras may actually prove a tool of legal magic by foreclosing the proposition that individuals can interpret the same video footage differently. This would result in an increase in unjustified summary judgment and wrongful convictions.

Watch the video for yourself: Police Chase

Read the opinion for yourself: Scott v. Harris

Read the study for yourself: Whose Eyes are you Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism

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