Now that everyone from law enforcement to civilians with cell phones can take video, so we are all on camera all the time (an average Londoner is seen 300 times a day), a hot topic in appellate land is the standard of review, conscious or unconscious, when such video is used in a court of law. I've touched on this topic briefly before. Now it's hit the US Supreme Court and the Harvard Law Review, as summarized in this New York Times article yesterday: Supreme Court Enters the YouTube Erahttp://www.nytimes.com/2009/03/03/us/03bar.html
Obviously, there is an instinctive desire not to defer on appeal when you can see the event with your own eyes – which the comments from some of the Justices indicate might have happened in this particular case. The majority saw the recorded car chase one way – reflecting enough to take the issue of fault out of the jury's hands — , while the lower court had said there was enough to create a jury issue. (Perhaps the most ironic element of this particular episode iwas that Justice Scalia commented that the video shows "the scariest chase I ever saw since 'The French Connection'," while rumor has it Nino himself can be Hell on Wheels.)
But context can be key – not just the fact that video can be manipulated (even if not intentionally; you can only see from one angle, or one snapshot in time) — but, as the Harvard study shows, what you see is filtered by your own background and experience. As the Times story notes, the study shows that while 75% of the study group viewing the car chase video agreed with the majority of Justices that the risk the driver was posing as portrayed in the video merited potentially deadly force, a larger amount of African-Americans, liberals, Democrats, poor, and those living in the Northeast tended to see the police, rather than the driver as the source of danger.
We have juries reflecting a cross section of the community to ensure a peer-review of the parties' actions when deciding facts. Will the pervasive existence of video result in a less deferential review by appellate courts of what fact disputes go to the jury, or whether the jury erred on appeal?
More broadly, trial lawyers have known for years the value of graphics and demonstrating by showing, not telling. Appellate courts are typically the last to embrace technological advances – but does this mean that when they are confronted with video they are less understanding of its limitations? And what does this mean for appellate lawyers – how do you address these points on appeal and get graphic yourself?
A picture can tell a thousand words – but who should decide what it's saying?