The Impact of Video Footage on Legal Decisions

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.

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.

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.

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,

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.

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.

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?

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.

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?