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KieranCoeFirstPaper 7 - 23 Apr 2012 - Main.KieranCoe
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Can Video Make Fact-Finding More Objective? | |
<
< | What Frank Foresaw | >
> | What Frank Could Have Foreseen | | | | |
<
< | Frank might be persuaded to qualify his position that fact-finding is inescapably subjective if he could pierce the veil of time and live in the world of ubiquitous video recording. A man of tremendous foresight who trusted the power of technology, he opined in Law and the Modern Mind that video records of trials might one day ease a Judge’s ability to discern facts from the record. Thus, twenty years before penning Courts on Trial, Frank suggested an avenue through which fact-finding might become more objective. I posit that the rapid growth in video recording will lessen the subjective nature of fact-finding to the point where courts may aggregate vast numbers of videos containing such large samples of information that fact-finding in the courtroom will begin to approach some semblance of the “Truth.” | >
> | Frank might be persuaded to qualify his position that fact-finding is inescapably subjective if he could live in a world of ubiquitous video recording. Ongoing rapid growth in video surveillance may someday progress so far as to substantially lessen the subjective nature of fact-finding. Future courts may aggregate sufficiently vast numbers of videos, each containing such large samples of data that fact-finding in the courtroom will begin to approach some semblance of the “Truth.” | | | The Model | |
<
< | If we postulate that objective reality as to events exists, then the Truth about any crime can be represented as a random variable equal to a sequence of parameters, each of which is one element of observable objective reality. This is a gross simplification, but it allows for some intriguing suppositions. Every sensory observation of an event is essentially a sample of some parameters of the random variable called Truth. Meanwhile, Truth has an expected value calculated from the aggregation all of its parameters, which cannot all be sampled at once by any technology. Nevertheless, by the Law of Large Numbers, as the number of imperfect samples of Truth approaches infinity, the average of the results from all the samples will approach the expected value of Truth. This means that given an infinite number of imperfect witnesses (samples), an adjudicator would be able to ascertain the Truth about any given crime. It also suggests that as there are more witnesses to any crime, the average of their observations will converge towards the Truth. | >
> | If we postulate that objective reality as to events exists, then the Truth about any crime can be represented as a random variable equal to a sequence of parameters, each of which is one element of observable objective reality. This is a gross simplification, but it allows for some intriguing suppositions. Every sensory observation of an event is essentially a sample of some parameters of the random variable called Truth. Meanwhile, Truth has an expected value calculated from the aggregation all of its parameters, which cannot all be sampled at once by any technology. Nevertheless, by the Law of Large Numbers, as the number of imperfect samples of Truth approaches infinity, the average of the results from all the samples will approach the expected value of Truth (NOTE: I am using the term "average" loosely). This means that given an infinite number of imperfect witnesses (samples), an adjudicator would be able to ascertain the Truth about any given crime. It also suggests that as there are more witnesses to any crime, the average of their observations will converge towards the Truth. | | | A video is not “reality” is the sense that any individual video is a complete record of the full Truth. However, I presume that recording technology can indelibly capture more data than any human is capable of either measuring or retaining. If true, this means that a video of a crime is a larger sample of the Truth than a witness’ observation. Applying the Law of Large Numbers, if sample sizes are increased in every trial, then the rate at which the average of sample means converges towards the expected value of the population increases. Therefore, if I am right that video is a larger sample of reality than human observation, then adding videos of an event will lead to a faster approach towards the truth than adding an equal number of witness observations. | | | Application | |
<
< | The rate at which our world falls under overlapping surveillance is rapidly increasing. Large entities feeling they have something to protect continue to erect more cameras. It has come to the point that certain cities like London or neighborhoods like Morningside Heights, rarely have any street corners that aren’t under observation. Today, crimes occurring on a street corner like Broadway and W112th St might be captured by six or more cameras from Chase Bank, Citibank, both bank’s ATMs, Columbia University, and Duane Reade. The limited nature of my simplistic analysis leaves me unable to ascertain whether the aggregation of the data in all six video feeds would produce some semblance of the Truth that could be claimed to be objective. What I can claim is that the more cameras added, the closer the composite observations approach the Truth and that the number of cameras is increasing over time. | >
> | The prevalence of areas falling under overlapping zones of video surveillance is increasing. Certain cities like London or neighborhoods like Morningside Heights, have few street corners that aren’t under observation. Crimes occurring on a street corner like Broadway and W 112th St might be captured by six cameras from Chase Bank, Citibank, both bank’s ATMs, Columbia University, and Duane Reade. The limited nature of my simplistic analysis leaves me unable to ascertain whether the aggregation of the data in all six video feeds would produce some semblance of the Truth that could be claimed to be objective. What I can claim is that the more cameras added, the closer the composite observations approach the Truth and that the number of cameras is increasing over time. | | | | |
<
< | Simultaneously there is a rapid proliferation of cellphone cameras, which have turned pedestrians into walking camcorders. On Saint Patrick’s Day, only a couple dozen feet in front of my former apartment in Baltimore, a man was brutally beaten, stripped naked in the street, and robbed. (Source). Numerous independently recorded videos of the event taken by cellphone cameras were posted to the web. Because some videos were taken at poor angles, poor resolution, turned on halfway through, or turned off halfway in, each individual video failed to capture all of the elements of the crime. However, aggregation of all of the myriad videos shed light upon the commencement of the crime, its aftermath, and even provided clear captures of the faces of the perpetrators in the act. These videos allowed the authorities to capture the perpetrators and bring charges for crimes that would have otherwise been very unlikely to have reached a courtroom because the accused were only caught after social media users identified their faces by comparing posted videos to public profile pictures. | >
> | There is also a rapid proliferation of cellphone cameras, which have turned pedestrians into walking camcorders. On Saint Patrick’s Day, less than a block from my former apartment in Baltimore, a man was brutally beaten, stripped naked in the street, and robbed. (Source). Numerous independently recorded videos of the event taken by cellphone cameras were posted on the web. Because some videos were taken at poor angles, poor resolution, turned on halfway through, or turned off halfway in, each individual video failed to capture all of the elements of the crime. However, aggregation of all of the myriad videos shed light upon the commencement of the crime, its aftermath, and even provided clear captures of the faces of the perpetrators. These videos allowed investigators to capture the perpetrators and bring charges for crimes that would have otherwise been very unlikely to have reached a courtroom because the accused were only caught after social media users identified their faces by comparing posted videos to public profile pictures. | | | | |
<
< | I cannot fully address how to deal with the fact that the human actors recording videos might intentionally manipulate them to skew the depicted events. Nevertheless, as long as the number of manipulated videos is small compared with the total number of videos, then introduced bias ought to remain relatively slight. When Hitchcock showed moviegoers a shower scene in “Psycho,” most thought that they had seen Janet Leigh naked. They hadn’t. They had been duped. Perhaps someone manipulating their gaze in another way could have similarly duped them even if they had been standing in the bathroom at the Bates Motel. However, if there were numerous security and mobile phone cameras in the room, each independently capturing the event, I don’t think that such chicanery would be possible. | >
> | Limitations
The human agents recording videos might intentionally manipulate them to skew the representation of the depicted events. Nevertheless, as long as the number of manipulated videos is small compared with the total number of videos, then introduced bias ought to remain relatively slight. When Hitchcock showed moviegoers a shower scene in “Psycho,” most thought that they had seen Janet Leigh naked. They hadn’t. They had been duped. Perhaps someone manipulating their gaze in another way could have similarly duped them even if they had been standing in person in the bathroom at the Bates Motel. However, if there were numerous security and mobile phone cameras in the room, each independently capturing the event, I don’t think that such chicanery would be possible.
Perhaps an even more damning limitation of the foregoing model and its application is that video cannot directly prevent the conscious or subconscious biases of fact-finders from skewing factual interpretation of even the most indisputable evidence. This was starkly exemplified by the 1992 acquittal of the officers who beat Rodney King. Nevertheless, I believe that as factual evidence becomes more palpably indisputable, social forces far more powerful than the law may curtail the flexibility of fact-finders to disregard resonant Truth. | | | -- By KieranCoe - 22 Apr 2012 |
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KieranCoeFirstPaper 6 - 22 Apr 2012 - Main.KieranCoe
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| | | The Model | |
<
< | If we postulate that objective reality as to events exists, then the Truth about any crime can be represented as a random variable equal to a sequence of parameters, each of which is one element of observable objective reality. This is a gross simplification, but it allows for some intriguing suppositions. Every sensory observation of an event is essentially a sample of some parameters of the random variable called Truth. Meanwhile, Truth has an expected value calculated from the aggregation all of its parameters, which cannot all be sampled at once by any technology. Nevertheless, by the Law of Large Numbers, as the number of imperfect samples of Truth approaches infinity, the average of the results from all the samples will approach the expected value of Truth. This means that given an infinite number of imperfect witnesses (samples), we would be able to ascertain the Truth about any given crime. It also suggests that as there are more witnesses to any crime, the average of their observations will converge towards the Truth. | >
> | If we postulate that objective reality as to events exists, then the Truth about any crime can be represented as a random variable equal to a sequence of parameters, each of which is one element of observable objective reality. This is a gross simplification, but it allows for some intriguing suppositions. Every sensory observation of an event is essentially a sample of some parameters of the random variable called Truth. Meanwhile, Truth has an expected value calculated from the aggregation all of its parameters, which cannot all be sampled at once by any technology. Nevertheless, by the Law of Large Numbers, as the number of imperfect samples of Truth approaches infinity, the average of the results from all the samples will approach the expected value of Truth. This means that given an infinite number of imperfect witnesses (samples), an adjudicator would be able to ascertain the Truth about any given crime. It also suggests that as there are more witnesses to any crime, the average of their observations will converge towards the Truth. | | | A video is not “reality” is the sense that any individual video is a complete record of the full Truth. However, I presume that recording technology can indelibly capture more data than any human is capable of either measuring or retaining. If true, this means that a video of a crime is a larger sample of the Truth than a witness’ observation. Applying the Law of Large Numbers, if sample sizes are increased in every trial, then the rate at which the average of sample means converges towards the expected value of the population increases. Therefore, if I am right that video is a larger sample of reality than human observation, then adding videos of an event will lead to a faster approach towards the truth than adding an equal number of witness observations. | |
<
< | The essence of this sweeping argument is two claims: (1) Objective reality exists and can be represented by a random variable equal to all of its parameters and (2) Videos are larger samples of the Truth than witness observations. Robustly defending these two claims is beyond the limited scope of this exposition. Moreover, I am intentionally setting aside the complex problem of translating a record of the Truth into something presentable in a courtroom. Nonetheless, if the reader will stipulate to the validity of these two claims, then we may be able to do some work with their implications. | >
> | The essence of this sweeping argument is two claims: (1) Objective reality exists and can be represented by a random variable equal to all of its parameters and (2) Videos are larger samples of the Truth than witness observations. Robustly defending these two claims is beyond the limited scope of this exposition. Moreover, I am consciously setting aside the complex problem of translating any record of the Truth into something presentable/interpretable in a courtroom. Nonetheless, if the reader will stipulate to the validity of these two claims, then we may be able to do some work with their implications. | | |
Application
The rate at which our world falls under overlapping surveillance is rapidly increasing. Large entities feeling they have something to protect continue to erect more cameras. It has come to the point that certain cities like London or neighborhoods like Morningside Heights, rarely have any street corners that aren’t under observation. Today, crimes occurring on a street corner like Broadway and W112th St might be captured by six or more cameras from Chase Bank, Citibank, both bank’s ATMs, Columbia University, and Duane Reade. The limited nature of my simplistic analysis leaves me unable to ascertain whether the aggregation of the data in all six video feeds would produce some semblance of the Truth that could be claimed to be objective. What I can claim is that the more cameras added, the closer the composite observations approach the Truth and that the number of cameras is increasing over time. | |
<
< | Simultaneously there is a rapid proliferation of cellphone cameras, which have turned pedestrians into walking camcorders. On Saint Patrick’s Day, only a couple dozen feet in front of my former apartment in Baltimore, a man was brutally beaten, stripped naked in the street, and robbed. (Source). Numerous independently recorded videos of the event taken by cellphone cameras were posted to the web. Because some videos were taken at poor angles, poor resolution, turned on halfway through, or turned off halfway in, each individual video failed to capture all of the elements of the crime. However, aggregation of all of the myriad videos shed light upon the commencement of the crime, its aftermath, and even provided clear captures of the faces of the perpetrators in the act. These videos allowed the authorities to capture the perpetrator and bring charges for a crime that would have otherwise been very unlikely to have reached a courtroom because the perpetrators were only caught after social media users identified their faces by comparing posted videos to their profiles. | >
> | Simultaneously there is a rapid proliferation of cellphone cameras, which have turned pedestrians into walking camcorders. On Saint Patrick’s Day, only a couple dozen feet in front of my former apartment in Baltimore, a man was brutally beaten, stripped naked in the street, and robbed. (Source). Numerous independently recorded videos of the event taken by cellphone cameras were posted to the web. Because some videos were taken at poor angles, poor resolution, turned on halfway through, or turned off halfway in, each individual video failed to capture all of the elements of the crime. However, aggregation of all of the myriad videos shed light upon the commencement of the crime, its aftermath, and even provided clear captures of the faces of the perpetrators in the act. These videos allowed the authorities to capture the perpetrators and bring charges for crimes that would have otherwise been very unlikely to have reached a courtroom because the accused were only caught after social media users identified their faces by comparing posted videos to public profile pictures. | | | | |
<
< | I cannot address how to deal with the fact that the human actors recording videos might intentionally manipulate them to skew the depicted events. Nevertheless, as long as the number of manipulated videos is small compared to the total number of videos, then introduced bias ought to remain relatively slight. When Hitchcock showed me a shower scene in “Psycho,” I thought that I had seen Janet Leigh naked. I hadn’t. I had been duped. Perhaps someone manipulating my gaze in another way could have similarly duped me even if I had been standing in a bathroom in the Bates Motel. However, if there were numerous security and mobile phone cameras in the room, each independently capturing the event, I don’t think that such chicanery would be possible. | >
> | I cannot fully address how to deal with the fact that the human actors recording videos might intentionally manipulate them to skew the depicted events. Nevertheless, as long as the number of manipulated videos is small compared with the total number of videos, then introduced bias ought to remain relatively slight. When Hitchcock showed moviegoers a shower scene in “Psycho,” most thought that they had seen Janet Leigh naked. They hadn’t. They had been duped. Perhaps someone manipulating their gaze in another way could have similarly duped them even if they had been standing in the bathroom at the Bates Motel. However, if there were numerous security and mobile phone cameras in the room, each independently capturing the event, I don’t think that such chicanery would be possible. | | | -- By KieranCoe - 22 Apr 2012 |
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KieranCoeFirstPaper 5 - 22 Apr 2012 - Main.KieranCoe
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<
< | Is Objective Fact-Finding Possible Under the Camera Lens? | >
> | Can Video Make Fact-Finding More Objective? | | | | |
<
< | What Frank Saw | >
> | What Frank Foresaw | | | | |
<
< | Jerome Frank might be persuaded to qualify his position that fact-finding is an inescapably subjective process if he were given the opportunity to pierce the veil of time and live in our world of ubiquitous video recording. A man of tremendous foresight who trusted the power of scientific instrumentation, he opined in Law and the Modern Mind in 1930: | >
> | Frank might be persuaded to qualify his position that fact-finding is inescapably subjective if he could pierce the veil of time and live in the world of ubiquitous video recording. A man of tremendous foresight who trusted the power of technology, he opined in Law and the Modern Mind that video records of trials might one day ease a Judge’s ability to discern facts from the record. Thus, twenty years before penning Courts on Trial, Frank suggested an avenue through which fact-finding might become more objective. I posit that the rapid growth in video recording will lessen the subjective nature of fact-finding to the point where courts may aggregate vast numbers of videos containing such large samples of information that fact-finding in the courtroom will begin to approach some semblance of the “Truth.” | | | | |
<
< | "It is no easy task for the judge to bring together in his mind for the purpose of finally reaching his conclusions as to facts, what is frequently a voluminous body of testimony… It may well be that the courts will some day adopt a recent mechanical innovation and that we shall have ‘talking movies’ of trials, which will make possible an almost complete reproduction of the trial so that the judge can consider it as his leisure." | >
> | The Model | | | | |
<
< | 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. | >
> | If we postulate that objective reality as to events exists, then the Truth about any crime can be represented as a random variable equal to a sequence of parameters, each of which is one element of observable objective reality. This is a gross simplification, but it allows for some intriguing suppositions. Every sensory observation of an event is essentially a sample of some parameters of the random variable called Truth. Meanwhile, Truth has an expected value calculated from the aggregation all of its parameters, which cannot all be sampled at once by any technology. Nevertheless, by the Law of Large Numbers, as the number of imperfect samples of Truth approaches infinity, the average of the results from all the samples will approach the expected value of Truth. This means that given an infinite number of imperfect witnesses (samples), we would be able to ascertain the Truth about any given crime. It also suggests that as there are more witnesses to any crime, the average of their observations will converge towards the Truth. | | | | |
<
< | Are you the world's last
believer in the "reality" of video? | >
> | A video is not “reality” is the sense that any individual video is a complete record of the full Truth. However, I presume that recording technology can indelibly capture more data than any human is capable of either measuring or retaining. If true, this means that a video of a crime is a larger sample of the Truth than a witness’ observation. Applying the Law of Large Numbers, if sample sizes are increased in every trial, then the rate at which the average of sample means converges towards the expected value of the population increases. Therefore, if I am right that video is a larger sample of reality than human observation, then adding videos of an event will lead to a faster approach towards the truth than adding an equal number of witness observations. | | | | |
<
< | What I saw | >
> | The essence of this sweeping argument is two claims: (1) Objective reality exists and can be represented by a random variable equal to all of its parameters and (2) Videos are larger samples of the Truth than witness observations. Robustly defending these two claims is beyond the limited scope of this exposition. Moreover, I am intentionally setting aside the complex problem of translating a record of the Truth into something presentable in a courtroom. Nonetheless, if the reader will stipulate to the validity of these two claims, then we may be able to do some work with their implications. | | | | |
<
< | 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. | | | | |
<
< | What Other Courts Saw | >
> | Application | | | | |
<
< | 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. | >
> | The rate at which our world falls under overlapping surveillance is rapidly increasing. Large entities feeling they have something to protect continue to erect more cameras. It has come to the point that certain cities like London or neighborhoods like Morningside Heights, rarely have any street corners that aren’t under observation. Today, crimes occurring on a street corner like Broadway and W112th St might be captured by six or more cameras from Chase Bank, Citibank, both bank’s ATMs, Columbia University, and Duane Reade. The limited nature of my simplistic analysis leaves me unable to ascertain whether the aggregation of the data in all six video feeds would produce some semblance of the Truth that could be claimed to be objective. What I can claim is that the more cameras added, the closer the composite observations approach the Truth and that the number of cameras is increasing over time. | | | | |
<
< | 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. | >
> | Simultaneously there is a rapid proliferation of cellphone cameras, which have turned pedestrians into walking camcorders. On Saint Patrick’s Day, only a couple dozen feet in front of my former apartment in Baltimore, a man was brutally beaten, stripped naked in the street, and robbed. (Source). Numerous independently recorded videos of the event taken by cellphone cameras were posted to the web. Because some videos were taken at poor angles, poor resolution, turned on halfway through, or turned off halfway in, each individual video failed to capture all of the elements of the crime. However, aggregation of all of the myriad videos shed light upon the commencement of the crime, its aftermath, and even provided clear captures of the faces of the perpetrators in the act. These videos allowed the authorities to capture the perpetrator and bring charges for a crime that would have otherwise been very unlikely to have reached a courtroom because the perpetrators were only caught after social media users identified their faces by comparing posted videos to their profiles. | | | | |
<
< | 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. | >
> | I cannot address how to deal with the fact that the human actors recording videos might intentionally manipulate them to skew the depicted events. Nevertheless, as long as the number of manipulated videos is small compared to the total number of videos, then introduced bias ought to remain relatively slight. When Hitchcock showed me a shower scene in “Psycho,” I thought that I had seen Janet Leigh naked. I hadn’t. I had been duped. Perhaps someone manipulating my gaze in another way could have similarly duped me even if I had been standing in a bathroom in the Bates Motel. However, if there were numerous security and mobile phone cameras in the room, each independently capturing the event, I don’t think that such chicanery would be possible. | | | | |
<
< | 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.
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?
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 | | | \ No newline at end of file | |
>
> | -- By KieranCoe - 22 Apr 2012 |
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KieranCoeFirstPaper 4 - 15 Apr 2012 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
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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. | |
>
> | 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. | |
<
< | 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. | |
>
> | 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? | |
<
< | 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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KieranCoeFirstPaper 3 - 16 Feb 2012 - Main.KieranCoe
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| | | What Frank Saw | |
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< | Frank might be persuaded to qualify his position that fact-finding is an inescapably subjective process if he were given the opportunity to pierce the veil of time and live in our world of ubiquitous video recording. A man of tremendous foresight who trusted the power of scientific instrumentation, he opined in Law and the Modern Mind in 1930: | >
> | Jerome Frank might be persuaded to qualify his position that fact-finding is an inescapably subjective process if he were given the opportunity to pierce the veil of time and live in our world of ubiquitous video recording. A man of tremendous foresight who trusted the power of scientific instrumentation, he opined in Law and the Modern Mind in 1930: | | | "It is no easy task for the judge to bring together in his mind for the purpose of finally reaching his conclusions as to facts, what is frequently a voluminous body of testimony… It may well be that the courts will some day adopt a recent mechanical innovation and that we shall have ‘talking movies’ of trials, which will make possible an almost complete reproduction of the trial so that the judge can consider it as his leisure." | |
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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 use legal magic may be partially overcome by a meaningful step towards objective fact-finding. | >
> | 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. | | | What I saw | |
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< | On the morning of February 10, 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. 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. | >
> | 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. | | | What Other Courts Saw |
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