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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