“Major Lior” is the pseudonym for an Israeli Defense Force officer who testified in Dallas not long ago in what has been called the “largest terrorism financing investigation in American history.”  His name was pronounced “Major Lee-OR” at the trial.  Snarky commentators suggested that defense counsel should mispronounce his name to rhyme with “fire.”  After all, what defense counsel would not want to refer the jury to the testimony of a major liar?  But the joke exposed a real problem for the defense: how can you “attack a witness’s reputation for having a character for truthfulness or untruthfulness” under FRE 608 or engage in more typically frutiful areas of inquiry into credibility or expertise if — thanks to [...]]]>

What would the Daubert Hearing for "Shepherd X" look like?

“Major Lior” is the pseudonym for an Israeli Defense Force officer who testified in Dallas not long ago in what has been called the “largest terrorism financing investigation in American history.”  His name was pronounced “Major Lee-OR” at the trial.  Snarky commentators suggested that defense counsel should mispronounce his name to rhyme with “fire.”  After all, what defense counsel would not want to refer the jury to the testimony of a major liar?  But the joke exposed a real problem for the defense: how can you “attack a witness’s reputation for having a character for truthfulness or untruthfulness” under FRE 608 or engage in more typically frutiful areas of inquiry into credibility or expertise if — thanks to a court-sanctioned pseudonym — you don’t even know his name and must rely on your adversary for information in place of any investigative legwork of your own?

Last week, the Fifth Circuit handed down an important opinion upholding the convictions in that case.  The unanimous and enormous (172 page) opinion written by Judge Carolyn King (joined by Judges Emilio Garza and James Graves) received virtually no media attention.  That’s strange, considering that the convictions that the court upheld concerned an international conspiracy to fund Hamas and the defendants once ran the largest Muslim charity in the United States.

But the silence is stranger still when you consider the importance of the issue (one of many) before the court: Did the district court deprive the defendants of their rights to due process and to confront witnesses against them when it allowed two witnesses to testify using pseudonyms?  As far as I know, such a practice would be unusual but not entirely unprecedented were it to concern the typical fact witness.  Children, informers, and undercover agents are sometimes allowed various levels of shielding from the ordinary requirement of fully public testimony in a completely open court.  But these witnesses were far from ordinary.  Both were officers in the Israeli Defense Force.  “Major Lior” was a fact witness whose role was to authenticate documents obtained by the IDF during a military operation.  The other, “Avi,” testified as an expert witness, providing his opinion to the jury about the financial structure of Hamas.

After the break, I’ll give some background on the case and then explore the appellate court’s conclusion that this testimony worked no constitutional injury.  Given that the Supreme Court granted only 1.1% of the petitions for review last term, I doubt that the appeal will go any farther.  But I think it should and, though I certainly would give no quarter to Hamas or its allies, I think the use of these anonymous witnesses violated the defendants’ rights.

The Holy Land Foundation (HLF) was once a thriving organization operating out of Richardson, Texas, just north of Dallas.  The Government charged that HLF was no charity at all, but rather engaged in the criminal enterprise of funneling millions of dollars to Hamas.  Money is fungible, the United States argued, and even if money were being sent to Hamas-run schools or hospitals alone, those donations would simply free money to be spent on the other side of Hamas’s ledger, for suicide bombings and other terrorist attacks.  It was a winning argument, although the first jury trial ended in a mistrial and the second jury trial took six weeks to reach the convictions at issue in the case. 

Considerable time and treasure went into this prosecution, which was part of a multi-stage, decade-long effort by the United States to shut down financing for Hamas.  Months after 9/11, HLF was declared to be a specially designated terrorist under the International Emergency Economic Powers Act and all of its assets blocked by order of a special component of the Department of the Treasury, the Office of Foreign Asset Control.  This followed FISA authorized surveillance and wiretaps that started in 1994.  HLF had been fighting, and losing, the legal battle over those actions when the defendants were indicted in 2004.  Judge King’s opinion affirmed the convictions of HLF’s leadership on multiple counts of conspiring and violating the material support statute (18 U.S.C. § 2339B), the IEEPA provisions concerning transactions with Hamas, money laundering, and tax offenses.  The defendants received sentences ranging between 15 and 65 years.

One needn’t have any opinion about the guilt of these defendants to worry about the use of anonymous witnesses to convict them.  This is especially of concern when it comes to the (to my knowledge) unprecedented use of an anonymous expert witness.  Expert witnesses, once qualified as such, are allowed under Federal Rule of Evidence 704 to testify about their opinions regarding an ultimate issue (except for a criminal defendant’s mental state as an element of the offense).  And, of course, they are presented to the jury with the imprimatur of the court qualifying them to do so. 

Judge King and her colleagues did not share these concerns of mine.  The court reviewed these constitutional claims de novo, unwilling to  reverse the lower court unless the defendants were clearly prejudiced.  The court began by distinguishing a 1968 precedent, Smith v. Illinois, that reversed a trial court’s decision to permit a fact witness to testify under a pseudonym about buying drugs from the defendant.  Justice Stewart, writing for himself and seven others, observed that “when the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives.  The witness’ name and address open countless avenues of in-court examination and out-of-court investigation.  To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”  

But according to the Fifth Circuit, Smith was easily distinguishable, a simple conflict of the he-said-she-said variety, in which “the only real issue at trial” was the credibility of the would-be anonymous drug buyer.  HLF was much more complex and multi-faceted, with issues of classified information and witness safety to consider.  But surely the logic of Smith applies especially to an expert witness, whose opinion ultimately will be accepted or rejected by the jury based on jurors’ evaluation of his credibility.  It may not matter much that the Government “disclosed to the defense over twenty volumes of material that Avi used to formulate his expert opinion about Hamas financing” if Avi has a reputation for exaggeration, false accusations, or other falsehoods that defense counsel could discover.

Satisfied that the defense was given ample access to all the information relied upon by Major Lior and Avi, the court conducted a balancing test to see if that was enough.  Courts tend to give great weight to government assertions of “national security,” especially in terrorism trials, and  that is what happened here.  Emphasizing what the defendants were allowed to know, the court gave short shrift to the “most rudimentary inquiry” that the defendants wanted to be allowed to conduct.  The court concluded that even if the witnesses’ true identities were disclosed to the defense, it was “unlikely [since they were classified] that anyone who knew the witnesses’ true names could or would discuss them with defense counsel.”  

On what basis the court reached this speculative conclusion is left unstated.  The Fifth Circuit cited two other cases to support pseudonymous testimony.  The first, United States v. Celis, 608 F.3d 818 (D.C. Cir. 2010), upheld the use of pseudonyms  to prevent retaliation by Columbian drug cartels who threatened to kill cooperating witnesses.  But even the Fifth Circuit conceded that the Celis court “allow[ed] defense counsel to learn the true names of the witnesses for investigative purposes only days before the testimony was to be given at trial.”  No such luck for the Holy Land defendants.  The second was a ruling by a trial court in United States v. Marzook, 412 F.Supp.2d 913 (N.D. Ill. 2006).  The Fifth Circuit does not quote its analysis because the opinion contained no analysis of the Sixth Amendment issue presented by anonymous testimony.  Perhaps it was cited for moral support.

Also unstated is any response by the court to the defendants’ assertion that the Government did not have to call Avi as an expert witness at all.  The defense noted in its appeal that the Government had noticed another person as an expert witness who could testify on the same subject and “whose identity was not classified” by anyone.  This left me to wonder why a court should not weigh in the balance “the probable value, if any, of additional or substitute” safeguards  (just as one would do in a Mathews v. Eldridge-style balancing about procedural due process).  After all, shouldn’t there be some weight given to the lack of necessity to balance the defendants’ constitutional rights at all?

 I wonder what life this opinion will lead?

Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:

Volume 58, Issue 3 (February 2011)

Articles

Comments

The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception.  As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx).  Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in [...]]]> For quite a long time, extensive empirical work in psychology, sociology, and behavioral economics has been revealing that many of the law’s most cherished rules are faulty.  They are based upon mistaken assumptions about human behavior.  They are often flat out wrong.  And yet they persist.

The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception.  As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx).  Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in their book, Nudge (2008).

As these studies increasingly make their way into legal scholarship, they are proving that many existing legal rules don’t work as they should.  And this is more than a mere normative critique.  The rules just fail because people don’t act or think the way the law thinks they ought to.  In fact, what we’re learning about the way people act and think is often counterintuitive.  It is hard to grasp and hard to deal with.

This research should be undermining many legal rules at their very foundations.  Yet the legal rules don’t seem to be shaken despite their foundations being annihilated.

In many domains, when something is proven flat wrong, it is confronted and dealt with.  If evidence shows that bleeding the patient isn’t a good cure for disease, then we move on and stop doing it.  But in law, if the evidence shows that a rule doesn’t work, what’s the response?  Often, it is to just accept the evidence with a grin and continue on.  If science were like law, we’d be talking about how the earth is round yet continuing to behave as if it were flat.

I think that it is time to hold the law up to the light of contemporary understanding and bring it into the 21st century.  Many legal rules are based on crusty assumptions made back in the 19th century, such as the M’Naghten rule for insanity(1843).  Hardly any experts would contend that the  M’Naghten rule (inability to distinguish right from wrong) is consistent with contemporary understandings in psychology.  The law of evidence is replete with faulty psychological assumptions.  So many areas of law don’t stand up to modern understandings of science, statistics, psychology, or empirical studies.

The example I want to focus on primarily is eyewitness testimony.  Countless studies have shown that eyewitness testimony is very unreliable, yet the law routinely permits convictions based solely upon eyewitness testimony.  I dug out my copy of Wrightsman’s Psychology and the Legal System (my edition is older than the one I’m linking to).  Here are some interesting facts:

As many as 80% of the eyewitnesses in some studies choose someone, even when none of the lineup members is the true criminal. (p. 148)

Buckhout (1975) staged a simulated crime on a television news broadcast and asked members of the viewing audience to phone in their choise of suspects shown shortly after the crime.  Out of 2145 viewer-witnesses who called in, only 14.7% were correct, an accuracy rate that was no different from the one achieved by simply guessing. (p. 148)

Also, victims of crime are less reliable in identifying the perpetrators than bystanders (p. 149).  Compounding the problem:

Jurors put too much emphasis on witnesses’ statements about the confidence of their identifications.  In fact, Cutler, Penrod, and Stuve (1988) found that, for laypersons, the witness’s level of confidence was the most important criterion for judging the witness’s truthfulness. . . . [But] an eyewitness’s confidence is not a strong indication of accuracy. (pp. 149-50)

This is a big problem, yet the law doesn’t deal with it.  Instead, the law does just the opposite — it prevents defense attorneys from introducing evidence of all these studies that undercut the accuracy of eyewitness testimony, thus preventing jurors from being properly educated.

Perhaps the law could adopt one of the following rules:

1. Eyewitness testimony could be completely barred as more prejudicial than probative.

2. Eyewitness testimony could be allowed only if corroborated.

3. Eyewitness testimony could be allowed, but defendants would be permitted to school the jury about the studies showing its unreliability.

Moving down this path would be difficult.  Imagine the case with the parent who witnesses the murder of her child right before her eyes.  She is the lone witness and says she’s absolutely certain it was the defendant.  Should her testimony be not allowed?  To bar the parent from testifying about what she saw would be incredibly difficult to do — it seems almost inhumane.

But that’s what the studies are showing us.    Reforming the law so that it reflects contemporary understandings of psychology and human behavior is a difficult and daunting task.  But the law needs to be modernized.  It should be rationalized.

“If it doesn’t fit, you must acquit.”

– The late Johnny Cochran, September 1995.

Almost fifteen years have passed since O.J. Simpson was acquitted of the double murder of Nicole Brown Simpson and Ronald Goldman.  Called the trial of the century, the Simpson case is still seen as a key point in legal history, even though the case created no significant legal precedent.

Experts at the time were still debating fundamental questions about the reliability,  acceptance, and admissibility of DNA testing.  The Supreme Court had handed down its watershed opinion in Daubert only a few years earlier.  As Professor David Kaye explains in his new book The Double [...]]]> The Double Helix and the Law of Evidence by David H. Kaye.  Harvard University Press: Cambridge 2010, pp. 352. $45.00.

“If it doesn’t fit, you must acquit.”

– The late Johnny Cochran, September 1995.

Almost fifteen years have passed since O.J. Simpson was acquitted of the double murder of Nicole Brown Simpson and Ronald Goldman.  Called the trial of the century, the Simpson case is still seen as a key point in legal history, even though the case created no significant legal precedent.

Experts at the time were still debating fundamental questions about the reliability,  acceptance, and admissibility of DNA testing.  The Supreme Court had handed down its watershed opinion in Daubert only a few years earlier.  As Professor David Kaye explains in his new book The Double Helix and the Law of Evidence, Simpson’s attorneys challenged the admissibility of the DNA evidence on numerous grounds.  But, at the end of the day, the most memorable moment of the trial is not the arcane issue of whether experts correctly calculated genetic probabilities using statistical estimation methods but Johnny Cochran’s statement in his closing, “If it doesn’t fit, you must acquit.”

Professor Kaye, distinguished professor of law and Weiss Family Faculty Scholar at Penn State Law, offers far more than just an account of the Simpson DNA evidence.  Kaye provides an in-depth review of how the law of DNA evidence progressed from its beginnings in the 1980’s to its current state.  His book is, in his own words, “part history, part legal analysis, part popular science, and part applied statistics.”  Kaye provides vignettes of many key developments in DNA evidence, from the first conviction and first exoneration based on DNA evidence in the 1986 Pitchfork case to the Simpson case to the use of mitochondrial DNA in analyzing the remains of Tsar Nicholas II and his family.  Kaye also examines legal milestones, such as People v. Castro, 545 N.Y.S. 985, 999 (Sup. Ct. 1989), in which Barry Scheck and Peter Neufeld convinced Judge Gerald Scheindlin to restrict the admissibility of the prosecution’s DNA evidence because the private testing laboratory “failed in several major respects to use the generally accepted scientific techniques and experiments for obtaining reliable results, within a reasonable degree of scientific certainty.”

Kaye’s book is not what I expected from the title, but surprises can be pleasant, as was this one.  Kaye draws from his substantial experience and his prior legal scholarship to create a concise and highly readable text devoted to the basics of DNA evidence and its historical development.  The book is not a comprehensive analysis of legal precedent governing DNA evidence, but that was not Kaye’s goal.  As Kaye explains, his work “is a tale of scientific egos, journalistic hype, lawyerly maneuvering, and judicial doctrine and disposition.”  Kaye starts the tale with biological evidence before DNA, such as the common A, B, and O blood types, and moves through the various stages of how courts and litigants reacted to the new actor on the legal stage.

Kaye’s explanations of the intricacies of DNA evidence are accessible to lawyers not having any specialized scientific training.  Kaye details the contributions of the major players, including experts such as Richard Lewontin, Daniel Hartle, and Eric Lander, lawyers Scheck and Neufeld, and the 1992 and 1996 reports of the National Research Council.  Kaye similarly explains the now classic “prosecutor’s fallacy” as applied to DNA evidence.

A fundamental question is whether certain differences in probabilities of guilt or innocence based on DNA evidence matter.  What struck me, particularly when reading certain sections dissecting the legal arguments pertaining to genetic probabilities, was whether jurors can rationally distinguish between various degrees of certainty in DNA testing.  From a reasonable juror’s perspective, is there any meaningful difference between one-in-a-million odds version one-in-a-billion odds?  Perhaps the average person cannot cognitively discern any difference between such odds.  Furthermore, the fact that Cochran’s mantra pervaded the theme of the Simpson trial underscores the effect of personal perceptions on conclusions about scientific evidence.  Other evidence may overshadow real and substantial disputes about the DNA evidence.  How jurors view the evidence is the ultimate question in any jury trial.  And what’s now called the “CSI effect” certainly colors (or taints?) the juror’s perspective.  See, e.g., Hon. Donald E. Shelton, et al., Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the CSI Effect Exist?, 9 Vand. J. Ent. & Tech. L. 331 (2006-2007).

At the start of the book, Kaye recognizes that his “conclusions are colored by my own biases and beliefs, including the conviction that it is possible to grade, at least roughly, the truth of competing claims about what is scientifically known and unknown.”  Kaye touches on the issue of jury perception of DNA evidence near the end of the book with some discussion of jury experiments and jury polling.  But, for me, this is one of the most intriguing questions about DNA evidence, which often reduces to a simple statistical data point.  Statistics are built on assumptions in data gathering and analysis, and thus have inherent margins of error.  Understanding when a juror can comprehend statistical distinctions and when certain statistical evidence is overly persuasive is crucial to ensuring that the legal process achieves justice.

Indeed, perception and personal experience often are the determinative factors in how one views a historical fact.  Consider, for example, the discovery of DNA.  Ask the average trivia buff who the father of the genetic code is, and the answer you’ll probably receive is “Watson & Crick,” for James Watson and Francis Crick.  But that answer is wrong.  Those two Nobel laureates discovered the structure of DNA, which was groundbreaking, of course.  But the structure did little in setting the stage for DNA profiling and genetic analysis.  DNA’s potential as a powerful evidentiary tool began only when Marshall Nirenberg discovered the genetic code.  Nirenberg, along with Robert W. Holley and H. Gobind Khoran, won the Nobel Prize in 1968 for this work.  The father of the genetic code passed away earlier this year, but the public’s recognition of his legacy may not change.

Towards the end of the book, in a chapter titled “Learning from DNA,” Kaye explores the broader issues of evidence relating to nascent technologies, and what can be learned from the courts’ experiences with DNA evidence.  Will courts make the same errors when considering the admissibility of new technologies, such as facial recognition software or brain scanning technologies?  Will the ability to identify liars by microexpressions someday achieve “general acceptance”?  Those specific questions are beyond the scope of Kaye’s book, but the history of DNA evidence Kaye details will inform future debates about new types of scientific evidence.  In the words of Harry Truman, “The only thing new in the world is the history you don’t know.”  Or as Ziggy Marley crooned, “If you don’t know your past, you don’t know your future.”

One issue on which Kaye’s views would be particularly enlightening is the possible creation of a national DNA database.  In early March, President Obama announced his support of a national DNA database during an interview with John Walsh, host of the popular America’s Most Wanted show and father of murdered six-year-old Adam Walsh.  Not surprisingly, the database proposal has its proponents and opponents.  If abused, a national DNA database could raise significant privacy concerns.  One also has to weigh the detrimental effects of false positives—that is, people incorrectly identified as criminal suspects based only on an incorrect DNA test result.  At the same time, using an investigative tool as powerful as DNA profiling can conserve scarce resources, particularly when many local governments are reducing law enforcement budgets.  Kaye has written on the topic, see Rounding Up the Usual Suspects: A Legal and Logical Analysis of DNA Database Trawls, 87 North Carolina Law Review 425 (2009), but he leaves it for a subsequent book, which may be coming sooner rather than later.  Technology advances and inexpensive computing will, before long, pressure lawmakers to implement some form of a comprehensive DNA database for criminal purposes.

Overall, Kaye provides a highly readable volume about the development of DNA as legal evidence.  As a former-scientist-turned-lawyer (who now lives vicariously through my scientist/professor wife for my science fixes), I thought Kaye’s book struck an excellent balance between law, history, and science.  The Double Helix and the Law of Evidence offers something for lawyers and non-lawyers alike (including judges and judicial clerks), and should be a particularly welcomed resource for an upper-level seminar class in law school.

___________________________________________________________________

Matthew J. Dowd is an attorney at Wiley Rein LLP.  He represents clients in appeals before the U.S. Court of Appeals for the Federal Circuit and in district court litigation, including patent and general commercial litigation.

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they [...]]]> I wanted to flag a terrific new paper on SSRN that will be coming out in NYU Law Review next year.  It’s by Andrea Roth (currently a fellow at Stanford Law School) and entitled “Safety in Numbers?  When DNA Alone is Enough to Convict.”  The Abstract follows the jump:

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable standard of proof – for determining sufficiency of the evidence in such a case. This article is the first to interrogate the relationship between “reasonable doubt” and statistical certainty in the context of cold hit DNA matches. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, I argue that astronomically high source probabilities, while fallible, are capable of meeting the standard for conviction. Nevertheless, the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. While any threshold will be arbitrary, I argue – citing recent juror studies and the need for uniformity and systemic legitimacy – that the threshold should be no less favorable to the defendant than a 1 in 1000 chance that the defendant is not the source of the evidence.

While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to [...]]]> Perhaps my favorite news story of late (apart from the Somali pirates and their spokesperson) is the Colombian government’s seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, “I KNOW I had that memory stick around here somewhere.” And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.

While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for perpetrators but also for prosecutors of international crimes.

Of course, the Evidence professor in me is skeptical about the admissibility of such data without proper authentication. While the authentication of computerized data is very much a live question before American courts, the evidentiary rules applied in international criminal tribunals are generally derived from civil law jurisdictions and therefore allow broad admissibility under the assumption that the judge can determine whether the evidence is reliable and weigh it accordingly. While this approach may be sensible in its inclusiveness, judges should trace the chain of custody carefully and rely on techie experts to ensure that nobody has tampered with computerized data. Particularly in the complex political situations that give rise to international crimes, it would be all too tempting for political foes to create a memory stick full of false information . . .

Cross-posted at IntLawGrrls

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of [...]]]> Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.