The Death of Fact-finding and the Birth of Truth
Today’s Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?
The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott’s car, Scott spun Harris’ car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott’s qualified immunity defense; the Eleventh Circuit affirmed.
Justice Scalia, writing for the majority, noted that the “first step is . . . to determine the relevant facts.” Normally, of course, courts take the non-moving party’s version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape “quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.” Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate (“We are happy to allow the videotape to speak for itself.” Slip Op. at 5), the Court proceeded to reject the nonmoving party’s version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be “genuine”: the Respondent’s version of the facts is “so utterly discredited by the record that no reasonable jury could have believed him.” (Slip Op. at 8).
Let’s get a bias out of the way. At the Court’s suggestion, I watched the video. I lean toward Justice Stevens’ view: “This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.’” Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees “headlights of vehicles zooming by in the opposite lane.” (Dissent at 2, n.1 – and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.
But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a “verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.” (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.
First, if we take seriously the idea that experience in evaluating evidence brings skill, then appellate judges are likely to be worse at evaluating video evidence than trial judges. Certainly, there is no reason to think they are better. So, imagine a world in which the police routinely videotaped their searches and seizures of homes, and all resulting conversations with suspects. (It isn’t too hard to imagine.) Trial courts would make rulings on the admissibility of evidence based on that videotape, supplemented, perhaps, by testimony from the police and accused. Assuming that such videos would be put into the record, what kind of deference should an appellate court give a trial court on such judgments after this opinion? Current practice accords the trial judge deference because she is “in the room,” and “smells the same air” as the testifying parties. But that approach would seem to be significantly undermined by the Court’s formalation of the purpose of litigation: to determine what “actually happened.” The Scott rule starts to make trial courts into something like magistrates: useful for moving paper and effecting settlement, but ultimately not decision makers.
Second, Scalia’s opinion demonstrates its weakness by telling the reader to make their own independent evaluation of the video evidence. Opinions should stand on their own feet. In world where all opinions were freely available online to all citizens, complete with video embedding, we might not care. That world, of course, is coming, but only for those who can afford computers and broadband connections. This characterizes almost every reader of this blog, but only a minority of the rest of the population. To take only a small example, consider prisoners in the state jail. Prisons strictly control internet access, and time, on the theory that the law in the books is an adequate substitute for constitutional purposes. If most courts begin throwing questions from the page to the tape, will prisoners gain a constitutional right to computer access?
But this project is misguided anyway. The majority as much as turns its back on the courts’ ordinary role to determine legal facts, instead of the truth of the “event.” We don’t read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. The court’s opinion has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.
(H/T: Orin Kerr; More commentary at SCOTUSBlog, which notes that “this decision is a constitutional holding more than it is an essay about facts, and very likely will be applied by lower courts beyond its specific factual setting.”; Marty Lederman has charactistically great comments here.)