Reality, Experience, Video and the Law

A recent article in the New York Times (here) caught my attention.  The article tells the story of John Lewis, who plead guilty to killing a police officer that interrupted Lewis’ armed robbery of a Dunkin’ Donuts.  A key issue in penalty portion of the case was whether Lewis acted with premeditation. He argued that he did not; he simply panicked when he saw the cop on the scene and shot him. The state, on the other hand, argued that the murder was premeditated. 

A key piece of evidence for both sides was the store's videotape of the crime.  The videotape showed Lewis shooting the officer within 2 seconds of seeing him—which allows (but does not require) the conclusion that the killing was not premeditated.  But would your view change if you watched the video in slow motion? That’s exactly what the state did in this case.  Lewis opposed the slow motion replay, arguing that it would prejudice him because it would make it look like he had more time to think through his actions.  Lewis argued the point all the way to the Pennsylvania Supreme Court, where he lost.  The court held that the video was more probative than prejudicial. A short news story is here.

My first thought on this issue was: if the state has the right to play the tape in slow motion, does Lewis have the right to play it in fast motion?  He wouldn’t actually want to do this, of course, because it would suggest that he was trying to obscure something. But why?  Why aren't we assuming that the prosecutor is trying to obscure something by playing it too slow?  I guess the answer here is comes down to our general appreciation for slow motion.  We tend to think that slow motion, generally speaking, helps us better assess what actually happened. Slow motion replay is a big part of many sports, for example.  In those contexts, we seem to think that slow motion helps us “get it right.” So why not use slow motion in the courtroom?

The authors of the New York Times article give us a reason.  In a study they conducted, they found that “juries who saw the slow-motion video were nearly four times more likely to return a unanimous first-degree murder verdict than juries who saw the regular-speed version.”  (The video they are referring to was not Lewis’ video, but a video from a different incident.  You can view the regular-speed and slow motion versions here.)  This makes sense, doesn’t it?  When you slow down the tape, the viewer’s sense of time is distorted.  And time is relevant to discerning premeditation. 

I’m on board with this, but it seems to complicate our assessment of video evidence.  If a court were to rely on this study to prohibit slow motion replay, the court's holding would be based not on the video itself, but rather the viewers’ experience of the video.  Put differently, the court would be holding that, even though the video is factually accurate, it is experientially inaccurate.  That may be a defensible holding in cases like Lewis (where we have some scientific data) but what do we do with the all other video evidence out there?

Consider Kelly v. California, a California Supreme Court case involving the admissibility of a victim impact video. After obtaining an conviction against Douglas Kelly for the murder of 19-year-old Sara Weir, prosecutors put on a 20 minute video that described Sara’s life mostly by using still photos set to music. Here. If you have the time, I encourage you to watch it; I’ve seen it several times, but watching it again today reminds me how we (or, at least I) too often forget the pain and suffering that crime inflicts on families.

The video illustrates the possible stakes in choosing between factual and experiential accuracy. Consider the last scene of the video (it starts at the 19:00 mark): it's a scene from southern Alberta with two horses riding across a river.  Sara was Native American and her ancestors apparently haled from this area, and she also loved to ride horses.  So the scene made a lot of sense.  But what’s odd here is that the scene is just stock video; the video is not of Sara or any of Sara’s family.  Nor, apparently, had Sara ever ridden horses in this place.  The final scene is thus factually inaccurate, but I think all of us can appreciate that it might nonetheless be experientially accurate.  The scene conveys much about who Sara was, what she loved, how she saw the world. 

But how far will we let this go?  What if the entire video were stock footage?  Or better yet, what if Sara’s uncle was Steven Spielberg and he created an entirely fictitious movie that, through skillful metaphor and allegory, powerfully conveyed the essence of Sara?  The question, in short, is this: when should factual accuracy give way to experiential accuracy, if ever?  I don’t have an answer here—I’m not an evidence guy and I don’t know metaphysics.  But it’s a question that I think will somehow have to be answered as video evidence becomes more and more ubiquitous.