Is Objective Fact-Finding Possible Under the Camera Lens?

What Frank Saw

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."

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.

What I saw

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.

What Other Courts Saw

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.

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.

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.

-- By KieranCoe - 13 Feb 2012