Computers, Privacy & the Constitution
The weight of videos in trials

1. Introduction Since its beginnings, photography has been the subject of several discussions. While many considered photography as an art, others claimed that it was the only manner to proof reality. The latter approach marked the beginning of the use of photography (and latter video-recording) as a manner to objectively represent the reality in judicial trials, since photographers were deemed to be transparent observers that basically “plagiarized” what happened in the other side of the camera.

Although this perception of the photography and video recording was and is not yet totally accepted, since a picture or a video recording has the potentiality to distort reality depending on the angle from which the video or picture has been taken, the lighting and the speed at which events are portrayed, the Supreme Court accepted this way of proving reality, when video recording clearly contradicts the other party’s version.

Recently, the government decided to buy more police body cameras to record police activity. This decision can be problematic, taking into consideration the position of the Supreme Court and the existence, in some States, of limits for individuals to record police officers.

2. The version of the Supreme Court The Supreme Court in Scott v. Harris (Supreme Court of the United States, Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, April 30, 2007) reached a very important and criticized conclusion in connection with the use of videos in trials.

The facts of the case can be summarized as follows: In 2001, Harris was clocked exceeding speed limits in Georgia and a sheriff sought to pull him over. A high-speed pursuit by Scott and others was initiated. After traveling ten miles in six minutes, Scott received permission to perform a maneuver to cause Harris' car to spin to a stop. Instead, Scott bumped the rear of Harris' car; the car left the roadway, went down an embankment and crashed. Harris is now quadriplegic. (See Wasserman, Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, 91 Judicature 180.)

The issue was whether an officer using excessive force during a high-speed pursuit as a way of ending a chase, acted against the Fourth Amendment. The Court concluded that a "_police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment._" However, the real problem of the decision was that the Court used a video taken from the police car to grant summary judgment to the officer.

As the Court said, there was no issue of material fact as to the reasonableness of the officer's action and no reason or opportunity for a jury trial (Schwartz, Silbey, Ryan, Donoghue, Analysis Of Videotape Evidence In Police Misconduct Cases, 25 Touro L. Rev. 857).

The Court concluded, as if the video was their eyes, that "the record in this case includes a videotape capturing the events in question. Where, as here, the record blatantly contradicts the plaintiff's version of events so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a summary judgment motion." Once the Court viewed the video they claimed to be present at the scene and no other proofs were required. As Justice Breyer noted during oral argument “I see with my eyes that is what happened, what am I supposed to do?”

As mentioned by Howard M. Wasserman, after Scott v. Harris, the Courts currently approach video cases with a strong belief that such videos are “singularly powerful and unambiguous source of proof”, one that holds great sway with fact-finders and that may be difficult for a party to overcome. (Orwell's Vision: Video And The Future Of Civil Rights Enforcement).

3. Government's request for police body cameras The Obama administration asked Congress last year for funding to buy 50,000 body cameras to record events like the shooting of Brown. Obama proposed a three-year, $263 million to increase use of body cameras. The argument used by the President is that cameras are tools to increase "_the trust between law enforcement agencies and the people they protect_" (See:

Despite the apparent good intentions of the government, when putting together this governmental decision with the interpretation given by the Supreme Court in Scott v. Harris, it might be argued that the decision taken by the Obama administration is problematic, since videotaping is, in the words of the Supreme Court, the most useful tool to proof reality in a trial and a powerful manner to obtain summary judgments.

This decision, together with the fact that some States still prevent individuals from recording police officers acts and conversations even, within the citizens’ own homes, (Dina Mishra, Undermining Excessive Privacy for Police: Citizen Tape Recording to Check Police Officers' Power Comment), creates an unbalanced relationship.

Still, until the above restriction is lifted, the solution is for people to be ready to use their own cameras in order to move the discussion from a single and unique perspective of reality to a more “pluralistic” vision of reality, gaining the right to discuss with similar “arguments” before the courts. The result should be a balance of power in which all sides can record events and use the recordings in trials.


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r5 - 26 Jun 2015 - 20:26:16 - MarkDrake
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