Preserving the Principles of Fair Trial in a 24/7 Video World

Aldous Huxley spoke of a "brave new world," Marshall McLuhan said "the medium is the message," and Orwell, of course, warned of Big Brother. For all their insights, however, none of these twentieth-century thinkers - not even Orwell - remotely anticipated the advent of the 24/7 video technology that permeates our culture today. We are awash in images that, without the proper safeguards, threaten to undermine long-held principles at the foundation of the criminal justice system.

Courtroom Video Evidence and Avoiding Undue Prejudice

For decades, the courtroom has been the accepted forum for achieving finality in contested criminal cases. Though many, if not most, cases are resolved through plea bargains, the right to a fair trial has always been fundamental to the American justice system. The right to a trial before a jury of one's peers is not merely a high school civics catch phrase; it is a guarantor of liberty.

Judges strive to oversee a process that admits evidence within clearly accepted rules. If evidence was illegally obtained, in violation of the Constitution, it cannot be admitted. Judges also use their discretion to exclude evidence that is likely to inflame the passions and unduly prejudice a defendant's right to a fair trial. Federal criminal defense often involves posing these decisions properly for judges, as does defense against state charges.

Video Technology in the Courtroom

Where do judges draw the line in deciding which images are so violent or graphic that they should not be admitted into evidence because the jury's ability to make a rational decision would be compromised by the emotions unleashed by the images? These judgment calls are never easy - not in the days of Perry Mason in 1950s and not today.

With so many quantum leaps ahead in technology, however, increasingly there is high-resolution video evidence available to the prosecution containing images that are shocking to jurors. In addition to simply capturing alleged criminal activity "on tape," today's digital video recording technology can capture details not even apparent to the human eye. Furthermore, this video evidence can be enhanced and otherwise manipulated after the fact to focus attention on gory, disturbing, or otherwise potentially prejudicial aspects of the event. In a real sense, exposure to the virtual crime scene of enhanced video can be more traumatic than the eyewitness experience.

In a manslaughter trial in Massachusetts, the judge admitted into evidence a video showing in horrific detail a 9-year-old boy shooting himself in the head by accident at a gun show. In Las Vegas, jurors wept after the judge allowed prosecutors to show a video of a man molesting a toddler. A juror, in that case, told the New York Times that this evidence was not necessary to convict the defendant on multiple charges.

These are not isolated examples. In Oakland, California, jurors watched video taken on a cell phone of a subway shooting. In Boston, it was surveillance video showing the shooting of a teenager waiting for a bus. The list goes on and the images proliferate - to the detriment of defendants. The more horrific the images are, the more they threaten to overwhelm a rational fact-finding process.

Impact on Jurors of Violent Videos

Allowing video of terrible, brutal acts of violence into evidence isn't only a problem for defendants; it's also a problem for jurors. Terrible video images expose jurors to experiences so intense that they are at risk for post-traumatic stress. Indeed, some courts are now offering to counsel to jurors after particularly grueling cases, such as after a recent triple-murder trial following a home invasion in Cheshire, Connecticut.

Independent scholars are concerned about where the video parade is heading. Clay Shirky, an expert on the new media who teaches at New York University, points to the greatly enhanced visceral impact that video often have compared to oral testimony and still photographs. "It seems like it's happening while you're watching," he said.

Shirky and others are concerned that the over-reliance on video evidence will shift the balance of power at trial overwhelmingly to the prosecution. With video, so paramount, juries may make rasher, perhaps harsher decisions - and justice will be compromised.

Role of Judges Remains Crucial

No matter how seemingly definitive the video is, judges need to keep doing what they have been doing for decades: balancing the prejudicial impact of evidence that one side seeks to introduce against the probative value in establishing the truth. Video evidence that is technologically enhanced after-the-fact requires even more careful scrutiny and screening.With especially gruesome images, judges may think they are doing the right thing in admitting the evidence and letting the jury decide.

But that is true only if jurors are prepared to handle the emotional battering unleashed on their brains by the violent images they are exposed to. This reality must be taken into account in the jury selection process. Defense attorneys must seek out tough-minded jurors who can still make fair decisions despite the storm of disturbing images shown at trial.

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