It’s a curious notion, since we believe with all our heart that when something appears on video, we all see the same thing, and we do so fairly and objectively. Yet, as experience shows, that’s not necessarily the case.
See? See it? There it is. How can you not see it?
Apparently, that fragile device we all possess to some greater or lesser extent, our brain, continues to hamper our ability to be neutral and objective, even when watching a video. From Science Daily:
Where people look when watching video evidence varies wildly and has profound consequences for bias in legal punishment decisions, a team of researchers at New York University and Yale Law School has found. This study raises questions about why people fail to be objective when confronted with video evidence.
The study, which appears in the Journal of Experimental Psychology: General, focuses on following the eyes of the viewer, which it asserts, provides guidance into what the viewer perceives. Apparently, the choice of focusing on the police officer or the defendant distinguishes the outcome.
“Our findings show that video evidence isn’t evaluated objectively — in fact, it may even spur our existing biases,” explains Emily Balcetis, an assistant professor in NYU’s Department of Psychology and one of the study’s authors. “With the proliferation of surveillance footage and other video evidence, coupled with the legal system’s blind faith in information we can see with their own eyes, we need to proceed with caution. Video evidence is seductive, but it won’t necessarily help our understanding of cases, especially when it’s unclear who is at fault.”
One piece of the study involved a video of police misconduct from a case in which the officer was subject to prosecution. The video was ambiguous, according to the authors.
During these viewings, the researchers also monitored the participants’ eye movements without their awareness. Using eye-tracking technology, they gauged how many times participants fixated their gaze on the police officer.
After the viewings, researchers examined how the participants interpreted what they saw. Participants reported on the legal facts of the case, which would incriminate the police officer.
Their results showed that participants’ identification with the police officer influenced punishment decisions only if they focused their visual attention on the law-enforcement official.
Specifically, their results showed that frequently looking at the police officer exacerbated discrepancies in punishment decisions among participants.
Or in more comprehensible language, viewers who identified more with the officer as within their social group watched the officer more than the citizen, and were far less inclined to find the officer’s conduct blameworthy.
“One might think that the more closely you look at videotape, the more likely you are to view its contents objectively,” says Balcetis. “But that is not the case — in fact, the more you look, the more you find evidence that confirms your assumptions about a social group, in this case police.”
This, of course, flies in the face of common assumptions and beliefs. What is likely to exacerbate the problem is not only is the viewer, the judge or juror, less likely to be objective about what appears on video, but the person will believe he’s being entirely objective about what he sees. As in, “I watched the video three times, very closely, and after doing so, I’m absolutely certain that the officer did nothing wrong.”
If this study is accurate, it suggests that watching the video very closely, multiple times, does not demonstrate the viewer’s objectivity, but rather that he has now confirmed his bias to the point of certainty. In other words, he is certain in his belief of what he sees, not certain that his conclusions based on the video are objectively correct.
This is a potential disaster, given the strength, or as the authors of this study describe it, “the legal system’s blind faith in information we can see with their own eyes,” of video evidence.
This raises huge issues for criminal defense lawyers. Initially, when we view a video, do we interpret it in conformity with our own confirmation bias? We know what we see, and yet we suffer from the same deficits as anyone else when seeing what we want/hope to see. Are we deluding ourselves?
As for our inclination to present the video to the court and jury, believing with the certainty that only a lawyer on trial can possess, that it conclusively proves what we believe it does, are we actually confirming the viewers’ bias of something very different than what we believe it shows?
While it’s possible that someone can attempt to track the jurors’ eyes to see who they’re watching, who they’re focusing on while the video plays, we lack the sophisticated means to do so effectively, and thus can’t really say with any adequate level of certainty whether the jury is watching the person we would have them watch, focusing on the conduct we would want them to focus on, and seeing the video the way we want them to see it.
As the existence of video is a boon to the law, showing what before could only be described, subject to the credibility of the source of the description, it appears that ambiguities in video are no more likely to be objectively decided than was the case before video. We may think we’re proffering evidence that demonstrates one point, while any particular juror is watching a video that, to his eyes, demonstrates the opposite.
Even as video appears to serve the purpose of making the determination of what happened more objective, it carries pitfalls and problems that need to be recognized and, to the extent possible, addressed. For every upside, we keep finding another problem hiding in the shadows.
Attorneys should probably take some film studies courses in college, so they might properly dissect the mis en scene of the film for themselves and jurors.
This would actually be a serious idea for CLEs. There’s a lot to learn about using video at trial.
I did actually do film studies coursework for my humanities undergraduate focus. That might be a good way to get involved with the local bar here — to develop a lecture on the subject. Generally, how does one go about developing and offering up such a course?
Contact your local or state criminal defense bar association and offer your services. Or your local institutional defender. If you put on a good CLE, they’ll be knocking down your door.
I wonder if you could compensate for this by, as you show the video, asking the jury to focus on a particular person in it, and by so doing override any unconscious bias be shifting the jurors attention.
Of course. Except that’s kinda like having a big red button that says “Do NOT Push.” Or an invitation to the prosecutor to say, “now that the defense has asked you not to look at the stuff he doesn’t want you to know about…” So is it a good idea?
Yes it could backfire that way. Then again, you could actually explain the whole bias problem to the jury. Tell them if you just look at what the police officer is doing that will bias you in favor of the police and if you only look at what the defendant is doing that will bias you in favor of defendant so keep both in mind as you examine the video. Then if the prosecutor tried to get the jury to just look at the cop you can claim the prosecutor is the one trying to trick the jury while you are simply showing them the truth. Of course, my work friends who have done trials have a rather low opinion of the intelligence of juries so perhaps I am overly optimistic. I assume people are at least reasonably intelligent unless proven otherwise.
I think you misunderstand the cause and effect here. It’s not that bias is caused by whether you look at the cop or perp, but that the choice of who to look at reflects the bias, and the video confirms the bias.
And while we never underestimate the intelligence of a jury, overestimating it is death.
Then perhaps yoo tell the jury that if they find themselves looking more at the cop then they are biased in favor of the cop and they shouldn’t do that because they took an oath to be unbiased.
I would probably be terrible with juries as I tend to assume people are all smart and reasonable. Then again one would hope judges are even more so and from much experience with appellate practice I know they are often neither, at both the trial and appellate level and I am generally cynical about it.
Yeah, well…no.
Once again sociology demonstrates that the more we know about a problem, the more certain we are that its best solution is to burn modern society to the ground and, as a species, start over from scratch.
I believe it was Pierre Bourdieu who mathematically proved that we’re alone in the universe because every intelligent species is wiped out by a frusturated cabal of its own sociologists before they can spread their specific brand of irrationality across the stars.