I vaguely remember when “Making A Murderer” appeared out of nowhere, and people would ask me what I thought. My answer was “not much.” While the arguments raised to suggest how Steven Avery was railroaded might be novel to outsiders, they were fairly banal as far as I was concerned. These were the usual arguments made at trial, and they almost invariably got crushed when the jury returned a guilty verdict.
But to the unwashed, they were novel and shocking. So why did they capture public interest and attention, why were they so much more persuasive in a show than they were in real life? The first reason is obvious: shows present only one side of the argument, and they present them in a way that creates the appearance that there could be no reasonable doubt as to their truth.
A second reason, however, is that in a world that believes what it “sees,” people believed that what came out of “Making A Murderer” was real. People believe that the television show CSI is real. People believe that the genre of “true crime” is true.
Where they do have influence, [Kevin Jon Heller, a professor of criminal law at Soas University in London] says, is on how ordinary people perceive the criminal justice system. He points to the “CSI effect”, the theory that forensic science television dramas such as CSI: Crime Scene Investigation influence American jurors to believe in the “infallibility” of DNA evidence and to expect more of it to convict defendants.
“To some extent that is healthy given the majority of wrongful convictions are because of faulty witness testimonies. Then again, if juries could never convict on the basis of witness testimony alone many guilty people would get off scot-free,” he says.
In many ways, this has proven an enormous boon for the defense, where people have “learned” to question assumptions that have long worked to prejudice the defense at trial. The cops wouldn’t have arrested the defendant if he wasn’t guilty? Police witnesses don’t lie? That the accused never confess to crimes they didn’t commit and that eyewitness identifications by victims are often flawed and unreliable.*
Breaking down the assumptions that have long made defending false accusations difficult, if not impossible, by way of media has had a valuable ameliorative impact on people’s perception of guilt. It wasn’t that these issues weren’t raised and argued a million times before, but they just didn’t work. With dramatic presentations on television and in the movies, people are beginning to recognize that deeply embedded beliefs about crime, police and science might not be accurate. Yay.
At the same time, the power of this tool could just as easily wreak havoc with the public’s understanding of reality, people being too easy to convince, too susceptible to the notion of “seeing is believing.” This was driven home when I took the controversial position that the dreaded former head of sex crimes in Manhattan, Linda Fairstein, had an extremely legitimate complaint about the false and defamatory presentation of her involvement in the Central Park Five case.
The reaction was surprising, as fellow criminal defense lawyers responded, “but it’s the truth; we saw it.” What they saw was the Ava DuVarney dramatic presentation, When They See Us. Yet, some believed, despite all reason, that they were watching a documentary, the actual footage of conduct and conversations that were neither recorded nor sourced. Nor could they be. But they saw it, they insisted. They saw it.
The use of visual drama to create the appearance of reality, to put into the minds of the public that what they’re seeing isn’t just the product of a script writer, a producer, a director, but reality is remarkably powerful. But just as it can be used to create the appearance of a documentary, of being able to watch as reality unfolds before your eyes, that appeals to your sensibilities, it can also be used to create the same false sense of reality that can be used to persuade you that an innocent person is guilty, that junk science is infallible, that the police really possess some “sixth sense” that allows them to “just know” when someone is lying.
Much as we can “like” it when it serves our palliative purposes, the same weapon can be used against us, and by promoting the power of the weapon because this time we like where it was aimed, the weapon will be just as powerful when it’s aimed at us.
The lack of critical scrutiny toward outcomes we prefer, like blaming Linda Fairstein for being the evil racist who railroaded innocent black boys into prison, because we want to believe we actually saw it even though it was nothing more than someone’s fertile imagination given life on a screen, presents a danger. We embrace it now, because we like its outcome.
But when the winds turn and it’s used to promote belief in a complete fabrication that doesn’t serve your cause, the power of its persuasiveness will remain even though the outcome will be the opposite. Seeing what you want to see isn’t good enough. We still need to distinguish whether we’re seeing a one-sided story, a fabrication, or seeing what actually happened, even if we really want the latter to be true. A dramatic presentation may be a powerful weapon, but it cuts both ways. Eventually, it will slit our throats if we let it.
*Except when it’s a “victim” of sexual misconduct, where the “science” has been completely reversed.