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KieranCoeFirstPaper 4 - 15 Apr 2012 - Main.EbenMoglen
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| | | Twenty years before penning Courts on Trial, Frank predicted that video records of proceedings would ease the process of judicial fact-finding. I posit that the spread of mobile video recording has already and will continue to lessen the subjective nature of fact-finding. I do not assert that we stand on the verge of completely eliminating all subjectivity, but I assert that the impetus to hide subjectivity with legal magic may be partially overcome by a meaningful step towards objective fact-finding. | |
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> | Are you the world's last
believer in the "reality" of video? | | | What I saw
On the morning of February 10, 2012, I watched an argument at the Second Circuit in the case of United States v. Siddiqui. The AUSA relied upon conflicting eyewitness testimony in charging Siddiqui with having shot several military officers. The eyewitnesses could not agree as to the number of shots fired or the types of guns used in the shooting. Defense counsel’s forensic expert even suggested that no shots had been fired at all based upon the lack of evidence that projectiles had impacted any surface in the room. The fact that appellate judges had to weigh the credibility of witnesses they had not even directly observed put Frank’s 1930 and 1949 theses into sharp relief for me. | | | The Second Circuit judges would not be compelled to resort to as much subjective credibility determination if they had access to video evidence of shootings. Although some of the first courts to view photographic evidence held it in no higher regard than eyewitness testimony, later courts have held videos to be an invaluable means of peering into the reality of past events. Cowley v. People, 83 N.Y. 464 (1881); Scott v. Harris, 550 U.S. 372 (2007) In the past, having a video recording of the typical street crime may have been rare, but today the streets are crawling with mobile phones each with cameras capable of recording events to a level of detail far exceeding the mental capacity of human witnesses to recall specific events. A video might fail to convey the smell of gunpowder at a shooting, but it rarely fails to record the number of shots fired. | |
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< | I speculate that there is an inverse relationship between the ability of courts to skew evidence to suit preconceived biases and the indisputable precision of recorded facts. There are myriad ways to discredit a human witness, but a video is a considerably more difficult piece of evidence upon which to cast aspersions. This is not to suggest that videos completely overcome the problem of subjective interpretation. In Harris, a video of a high-speed police chase served as the primary piece of evidence in a motorist’s claim that the police used excessive force. Neither the judges on the District Court nor those on the Court of Appeals considered the video to be sufficient grounds to dismiss the motorist’s claims, but Justice Scalia interpreted the video differently than the lower courts and chose to grant summary judgment for the police. | >
> | Though very often
without being able to shed any light on who fired them or where the
bullets went, which might be thought of as a fairly significant
drawback.
I speculate that there is an inverse relationship between the ability of courts to skew evidence to suit preconceived biases and the indisputable precision of recorded facts.
Can you also speculate
on the non-existence of indisputable precision? Or the inverse
relationship between claims of indisputability and actual accuracy?
There are myriad ways to discredit a human witness, but a video is a considerably more difficult piece of evidence upon which to cast aspersions.
Not at all. Every video
has a beginning and end, a frame, technical limitations, and
susceptibility to technical manipulation.
This is not to suggest that videos completely overcome the problem of subjective interpretation. In Harris, a video of a high-speed police chase served as the primary piece of evidence in a motorist’s claim that the police used excessive force. Neither the judges on the District Court nor those on the Court of Appeals considered the video to be sufficient grounds to dismiss the motorist’s claims, but Justice Scalia interpreted the video differently than the lower courts and chose to grant summary judgment for the police.
| | | What All The World Saw
Video evidence arguably moved the judicial system closer to the possibility of a just outcome in Rodney King’s case. This remains true despite the venue change to Ventura County and the 1992 acquittal. King was surely not the only black man subjected to police brutality in L.A. in 1991. But it is likely that his case was given substantial attention primarily because of the video. Other victims without video records may have lacked any meaningful chance of legal recourse. The power of the graphic evidence ultimately led to the conviction of two of the four officers in the subsequent 1993 federal trial. | |
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> | Really? Having led to
the acquittal in the prior trial? Saying what, other than that video
evidence is no more self-interpreting than testimony, right?
| | | Where Do We See Things Going From Here? | |
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< | I suggest that in many cases, video evidence can point so unequivocally toward the truth that public opprobrium and media coverage prevent courts from hiding behind logically twisted legal magic to justify subjective determinations of evidentiary credibility. The prevalence of mobile video recording and the capacity of social media websites to rapidly convey information to the public may transform many street crime cases into situations like that of King, where the courts were ultimately unable hold the line against what the public saw as a more just outcome. | >
> | I suggest that in many cases, video evidence can point so unequivocally toward the truth that public opprobrium and media coverage prevent courts from hiding behind logically twisted legal magic to justify subjective determinations of evidentiary credibility.
This means that you
claim that this will happen sometimes. It's not much of a claim,
after not much of an argument.
The prevalence of mobile video recording and the capacity of social media websites to rapidly convey information to the public may transform many street crime cases into situations like that of King, where the courts were ultimately unable hold the line against what the public saw as a more just outcome.
To use the King case as
a sign of the special transformative utility of video evidence is a
bizarre form of not acknowledging the objections to your argument.
Which is the primary weakness of the current draft and the best route
to improvement. The current draft is literally out of touch with the
presence of objections or conflicting arguments. You need to edit
yourself scrupulously, asking of your outline at each stage what the
strongest arguments are that can be made against your point. You
need to deal with them by confrontation or reasoned avoidance, and
you need to indicate the limitations placed upon your argument by the
objections that cannot be answered.
| | | -- By KieranCoe - 13 Feb 2012 |
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