July 8, 2011

Why not show jurors edited videotapes?

During my adult lifetime, there has been some improvement in how potential jurors are treated by court systems. When I was first summoned for jury duty by Cook County in the 1980s, potential jurors were treated like cannon fodder. They're basically free to the court system, so their time was wasted by stupid inefficiencies. By a decade later in Cook County, potential jurors seemed to be treated better. In Los Angeles County, it's still clear that jurors come last in priority in the court system.

Here's a 1992 letter-to-the-editor in the NYT by a citizen named Robert E. Lupinskie suggesting videotaping trials without juries, then showing the juries the edited videotapes without all the disallowed testimony, sidebars, adjournments, and other time-wasting. Serving on a jury takes up a lot of days because the judge and lawyers work on other cases in the morning and afternoon when the trial is not in session. For example, on the trial I served on, we would normally be told to show up at 10 in the morning, but often the judge was conducted a very serious looking hearing with a defendant in a different case shackled to the defense table, so we'd go sit in the jury room until 10:30 or 11:00. We'd take 90 minutes for lunch and be out by 4:00. We didn't work very hard, but we were there a long time. Testimony in that trial lasted something like 9 business days, but we could have watched all the proceedings on edited videotaped in 3 or 4 days, working 7.5 hour days.

I can't think of any obvious reason this would be worse than the traditional system and several reasons why it would be better.

46 comments:

Anonymous said...

Yes, I can't imagine why jurors would need to make credibility determinations.

This hobby horse is disappointing. Can you get off it?

sabril said...

That's a good idea. Another thing to consider is that cases often settle during trial or after trial but before the jury returns a verdict. With a video system, you wouldn't need to even empanel a jury.

Also, it would get rid of the gamesmanship where attorneys and witnesses try to sneak in prejudicial inadmissible evidence, knowing that the jury will hear it before the other attorney can object. And knowing that the judge's instruction to the jury to disregard teh evidence will not "unring the bell."

Polistra said...

I can think of one practical reason, something that impressed me greatly when I was on jury duty a couple of times.
The system depends crucially on having 95% of defendants plead out. Any less, and trials would take all the county's money.

The trick is: Guilty dudes really don't want to face a jury.

Routinely, a cocky young d***head thinks he can pull something over on those dull unhip civilians, UNTIL he sees them face to face.

After a dozen or so potential jurors are voir-dire'd in his presence, looking him straight in the eye, he suddenly gets a lot less cocky, and tells his lawyer to go for a guilty plea.

elvisd said...

The Amar brothers have written extensively on jury reform, with some good ideas (limiting preemptive strikes, not discriminating against the educated, letting jurors take notes, etc):

http://writ.lp.findlaw.com/amar/20040220.html

http://digitalcommons.law.yale.edu/fss_papers/988/

International Jew said...

Your idea won't be adopted because those effectively-two-hour work days that struck you as so wasteful are, in government work, simply the normal daily routine.

Anonymous said...

I disagree. The jury must be able to see the defendant and witnesses live, to observe their and body language, and to hear subtle inflections in the voice and changes of facial expression. The jury must also be able to have the option of observing different people at their choice (for example a defendant who glared at a prosecution witness during that witnesses' testimony). This might be preserved in a taped court proceeding, but I doubt it. Also, just imagine the wrangling between the defense and prosecution over camera placement, microphone volume, and where to edit.

Anonymous said...

Who get's to set the rules for editing? Do you get to see how the suspects, witnesses and lawyers react to questions and answers. Who decides where the focus of the camera goes.

Seriously, without a VERY complicated set of rules around these things you'd be better off just reading a transcript of the trial than seeing an edited version on video.

You will always miss things as a juror and there will always be defendant or witness reactions which don't mean what you think they mean. If someone else get's to decide what you see then they'll be in a tremendous position of influence over the outcome of the trial.

Anonymous said...

The obvious reason is the people pay more attention to live human beings than to a video.

Bostonian said...

I'm not sure about videotaped trials, but I do wonder why trial transcripts are not given to jurors when they deliberate.

Christopher said...

Because while you might see the witness, you wouldn't be able to 'look' at him; there'd be no interaction between the witness, the interlocutor, the judge, etc.

Also, and I'm serious here, not that I know, but, smell.

Liesel said...

One downside is the loss of non-verbal communication. Jurors would only have the view of the camera. For example, some may watch the defendent at the table while an expert testifies to see theri reaction while others would focus on the exper's body language or a lawyer or the judge's facial expressions.It would be very difficult to capture this all on film.

Also, you would lose smells. Sounds strange but sometimes smell affects how people think.

For better or worse, it could affect the outcome.

Polichinello said...

Part of the job of a juror is to evaluate credibility, and you do that by watching the person and hearing inflections in the voice. Video has greatly improved its capabilities over the past few decades, but a 2d version of a 3d person just isn't the same thing.

Anonymous said...

It would help avoid the possiblity that jurors would be influenced by coercion, because nobody could identify them. Also, throw in professional jurors who all would have to meet certain educational and background check requirements, and who are randomly assigned to cases, and you have a much better system.

Built-In Inefficiencies said...

I can't imagine lawyers like Racehorse would like that format. It would nullify the power of their personality, charisma and presence to influence people.

Besides, I bet a lot of attorneys like Racehorse really enjoy performing before a live crowd.

Professor Hale said...

An interesting proposal. What would be lost is the eye contact that an experienced lawyer would use to make a connection with jurors to get them to "side" with him. Also, all his coaching of the defendent to act innocent with head nods, posture and crying would be wasted since they would all be off camera.

What should be added is the ability for jurors to ask questions of witnesses, defendents and lawyers. When judges are asked to make summary judgements, they get to ask questions. Why are jurors expected to only hear what opposing counsels want them to hear?

Example: I served on a drunk driving case. I would like to have asked, "was there a BAC test performed and what did it show?" As it was, niether side mentioned this so I had to assume that both counsels agreed earlier to not mention it. Either one wasn't done or the results were marginal or the results were inadmissible because of some procedural error. But all of that information would have been good to know.

AllanF said...

Well, hate to be the carper about what seems an earnest attempt to solve a real problem, but... I guess I will. ;-)

There is the issue of limited attention spans. Breaking up the trial at they do keeps the jurors able to pay attention when it's time.

Of course the flip side, as you pointed out with the Racehorse case, is that they can't remember stuff that was said at the beginning of the trial 1 to 3 days earlier.

Also, think of all the arguing and appeals the lawyers can instigate over the editing. And who is going to do the editing, and what's that going to cost? Video editing is at least an order of magnitude more difficult than stenography.

outlaw josey wales said...

For criminal cases this scheme possibly violates the 6th Amendment, which states in relevant part "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..."

The trial must be public, and presumably the jury is part of said trial, so their presence must also be public.

Might be ok for civil trials, however.

Anonymous said...

Question for you: Why are so many firefighters white?

You've got an unfair advantage and inside track into the job. That's not fair.

carol said...

Well the lawyers will never go for that...they count on the juries hearing the inadmissable stuff, both sides.

Besides, videotape is boring. I think jurors look forward to the real thing, since everything else in their lives is TV-centric.

MSG said...

The standard reason given for the traditional system is that subtle cues revealing dishonesty or unreliability are more obvious when the witness appears live before the jury. This value is considered so high as to outweigh the advantages of the videotaping alternative. In fact, I think most lawyers would feel queasy even about subjecting the traditional system to such cost-benefit analysis -- the value of live witnesses appearing before the finder of fact is considered quasi-sacred, perhaps even constitutionally protected, as under the confrontation clause in the federal constitution. Compare this with the admission of other forms of evidence. A photocopy, for example, is usually not admitted when the original document is still available.

Anonymous said...

A fantastic idea--without an advocate of any power.


Nothing happens in govt without an advocate of some power pushing for it to happen. Simple efficiency doesn't have any advocates anyone cares about.

Would love to be proven wrong.

Andrew said...

Jurors should be paid by the court system for their time at their normal hourly salary rate. Loser pays costs for civil torts.

Then you would see the pace of trials and quality of jurors pick up and the quantity of cases drop.

Nadaav said...

Hmm...it could have some unwanted long-term effects on the legal system due to all the catering to the camera that would occur. Unphotogenic witnesses might be downplayed, unphotogenic lawyer more likely to lose, etc. Not sure how severe any of this would get, though.

Another issue might be security. Certain trials are not currently allowed to be videotaped (thus the courtroom watercolors that are so iconic). I'm not sure about the specifics on that rule either, though. Maybe confidentiality isn't really the reason for it? Anyway, videotaping trials means some of them will wind up on Youtube illegally.

Kylie said...

I suspect your idea would go over like a lead balloon, particularly with defense attorneys. Delays and delaying tactics are part of the game.

Alternately, I can imagine the delays that would ensue before an edited version of the proceedings would be approved by both sides and the judge.

The ability to waste another person's time is a sign of power. You can't seriously think anyone would willingly relinquish it.

Anonymous said...

I'm gonna ask the same question that I'm sure everyone else will ask: who's going to being doing the editing? They'd have a lot of power.

Brent Smith said...

It wouldn't work. Most judges in my part of the world try the best they can not to waste the jury's time. Lawyers that want to win try not to waste the jury's time either. The experience of watching an edited video is totally different than watching a live event. Also, juror's watching a video would be even more likely to not pay attention to evidence. They would be unable to see facial expressions. They would be less likely to perceive the subtle hesitations and other cues that folks use to determine whether they believe someone is credible.

K(yle) said...

I think the downside would be the borderline ADD jurors not being able to focus on a video tape for 7.5 hours straight.

Although you could just as easily break up viewing sessions into shorter blocks and it would still be a good idea.

Anonymous said...

Who will edit the videotapes? To replicate the traditional jury box perspective, will 12 cameras and microphones need to be mounted in a 6 x 2 array on one side of the court room? What about 3D? HDTV? Will the jurors watch the video together? What if some jurors get a headache from watching video screens? Will jurors have access to a transcript as they watch or be able to rerun parts of the video -- that would tend to give an advantage to the prosecutor since jurors would be able to reread the evidence to correct false impressions.

All these possibilities could affect the verdict.

Geoff Matthews said...

Sounds like a good argument to me.
This may work against the defense, because it will cut down on the grand-standing that some engage in.
I'm sure that John Edward's channeling of a dead (or brain-damaged, I forget) child's experience during childbirth would be less compelling on film than it would be live.
Racehorse might've been less compelling as well.

rjp said...

Drawback, trying to stay awake though the tapes.

But I agree with the idea. Like the jury really can "disregard the last statement".

Crawfurdmuir said...

Maybe instead of edited videotapes, it might be better to reduce the procedural complications that have entangled criminal trials in recent times. It was, after all, not until the mid-nineteenth century that most trials for offenses other than treason took longer than a day.

Appellate procedure could also be streamlined fairly easily. As late as 1957, Lord Chief Justice Goddard dismissed six appeals in one hour. American courts could profitably follow his example of "justice-in-a-jiffy."

Nanonymous said...

Why not get rid of juries?

PR Intern/College Slacker said...

The most important aspect a jury should consider is the attractiveness of the defendant.

Would general society be disadvantaged if this good-looking guy/girl was put away out of view?

:-)

Robert Holmgren said...

Better yet sell lawyer ads on the tape and turn a profit.

Anonymous said...

http://www.nybooks.com/articles/archives/2010/sep/30/slump-goes-why/

What to make of this? Kruggy says government had almost nothing to dow ith the Great Recession.

Anonymous said...

The problem is who edits the tapes? Convenience vs security.

Douglas Knight said...

Sounds like a definite improvement, but a drawback is that people would not take as seriously faces on a screen as they would people in the same room.

This claim would be easy to study in mock trials. Also, sometimes victims, mainly of sex crimes, are allowed to testify in absentia to avoid confronting the accused. I wonder if this has been studied?

Roman Polanski managed to win a libel suit in England without setting foot there. I don't know if he testified, though.

Anonymous said...

You might lose some of the body language/emotional content you get in person, e.g., maybe it's easier to tell if someone's lying in person vs. on tape because it's easier to see the queues live in person. But I've never been on a jury, so I'm not sure how important this is.

But it still sounds like a good idea, and maybe the higher quality of jurors you could get would make up for the above issue.

Antioco Dascalon said...

The only objection I can think of is that some like juries because they can "read" the expressions of the defendant, witness or prosecutor, in order to figure out if that person is telling the truth. So in a live jury trial, a juror can look at the defendant while an expert is offering testimony or look at the prosecutor while the defense is making a statement. To do this in videotape you would need multiple cameras, which would add time to the footage and defeat the time-saving purpose. Or you would have to have a wide-angle shot which would reduce the ability to see details in people's expressions.

Anonymous said...

I'm trying to think of a reason. "Dehumanizing the legal process"? Defendant gets to see the jury of his peers (ha ha) and goes through the process with them?

Okay, I got one. I don't trust the editors. And I want to make my own judgments about how much judicial activism I want to apply to what I should and should not disregard.

Svigor

Antioco Dascalon said...

A more subtle but interesting philosophical point, to follow up on Douglas Knight's comment is that people don't have the same expectations in person as on video. I think the CSI effect would be magnified since the context would be even more like what they see on TV, since they are seeing it on TV. Think of watching an instructional video as opposed to being there. There would be no judge/jury interaction, for example to prevent sighing or mutterings that might subtly influence the other jurors. But it is certainly worth looking into as there are many benefits. But the benefits are for average citizens, whereas the costs would be bourn by the government, so good luck with that.

genemachine said...

I see a problem with this idea.

With most jury systems, a clerk will make a transcript for the jury to read and discuss. If you replaced or augmented this with a video system then there's a danger that people will judge guilt more superficially.

It's not uncommon for people to think that they have the ability to identify when someone is lying. In limited circumstances most of us probably can - we have seen a close family be caught lying and may notice patterns in their body language if they happen in the future - but it is extremely unreliable for strangers whose mannerisms we are not familiar with.

Some of us are easily fooled, some are accomplished liars, and some of us just look like we're lying at times. At timers, all of us accidentally judge truth on superficial cues that we are not fully concious of. Some of us have watched Big Brother or read a popular book on body language. We are all familiar with how actors look when they pretend to lie or tell the truth but deliberately forget that they are actors. Often, psychopaths are the most accomplished liars.

Do we rally want to accentuate this "ability"?

Gc said...

What about those Homer Simpsons in the jury? At least peer pressure on the spot makes them pay some attention, but in their homes they can sit on the couch and same time they try watch the tape drink a 12-pack of bud light.

NOTA said...

I suspect the tv idea would be an improvement. Most people imagine themselves far more able to "smell" a crook than they really are. The video should be done with no editing, or with only editing to block inadmissible stuff.

The videos should be available online, with exceptions for specific cases, perhaps with some editing done to protect private information. Trials are supposed to be done in public, so we can see what kind of justice is being dispensed in our name.

Further, jurors should be paid the same as their normal job, or minimum wage, whichever is greater. Those two changes would get us a higher quality of juror.

Practicing Business Litigator said...

I am a practicing litigator specializing in business disputes, and do almost all bench trials (i.e., just the judge, no jury), so take this for what it's worth:

1. Paying jurors their normal hourly rate means you'll never see a doctor, a lawyer, an accountant, an engineer, etc., on a jury. Why pay me hundreds of bucks an hour to sit on your jury when you can have a burger-flipper or a welfare bum at 1% of the cost?

2. The commenter that said that the ability to waste someone else's time is a sign of power is absolutely right, and has identified the essence of litigation practice. That's the hammer that causes a majority of business lawsuits to settle before trial. It bugs me to no end that the system permits a $2 million dispute to cost $5 million in dead weight lawyer fees and expenses to bring to trial over three years, but I have zero confidence that reforms like loser-pays will change that. Half of my cases involve contracts with loser-pays clauses, and the level of lawyers d***ing with each other and dragging the process out for no good reason is about the same whether a provision like that exists or not.

3. With regard to videotaping criminal trials, that's just wrong. (Civil disputes, including all of my cases, I couldn't care less.) Our society is already candy-a**ed enough. If we're going to send the dirtbag to prison or hang him or whatever, twelve honest citizens ought to look him in the eye and say they have no reasonable doubt that he did it. But then I'm one of those old-fashioned people that would restrict both the franchise and jury service to married men who either own property or have served honorably in the military.

Tscottme said...

As long as the video always shows the defendant, lawyers why not? The video shouldn't be like a TV show with the camera cutting to this person and then that person. The video should be more like a TV producer's wall of video where one camera is always showing the defendent, another camera is always showing the witness box, and other cameras for other players or evidence. At any time any juror can see any participant. This preserves the body language observation and judging of credibility.