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Monday, March 02, 2009

Courts - "Supreme Court Enters the YouTube Era "

Adam Liptak's column in tomorrow's NYT will be titled "Supreme Court Enters the YouTube Era ." The article begins:

The Supreme Court is entering the YouTube era.

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or legal precedent but rather to a video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Such evidence verité has the potential to unsettle the way appellate judges do their work, according to a new study in The Harvard Law Review. If Supreme Court justices can see for themselves what happened in a case, the study suggests, they may be less inclined to defer to the factual findings of jurors and to the conclusions of lower-court judges.

In 2007, for instance, the Supreme Court considered the case of a Georgia man who was paralyzed when his car was rammed by the police during a high-speed chase. The chase was recorded by a camera on the squad car’s dashboard, and that video dominated the court’s analysis.

The 70-page, Jan. 2009 Harvard Law Review article, "WHOSE EYES ARE YOU GOING TO BELIEVE? SCOTT V. HARRIS AND THE PERILS OF COGNITIVE ILLIBERALISM," by Dan M. Kahan, David A. Hoffman, and Donald Braman, is available here. More from the NYT column:
The court posted the video on its Web site. “I suggest that the interested reader take advantage of the link in the court’s opinion and watch it,” Justice Breyer said in a concurrence.

Three law professors accepted that invitation and made it the basis of an interesting study published in January in The Harvard Law Review. They showed the video to 1,350 people, who mostly saw things as the justices did. Three-quarters of them thought the use of potentially deadly force by the police was justified by the risk Mr. Harris’s driving posed.

But African-Americans, liberals, Democrats, people who don’t make much money and those who live in the Northeast were, the study found, “much more likely to see the police, rather than Harris, as the source of the danger posed by the flight and to find the deliberate ramming of Harris’s vehicle unnecessary to avert risk to the public.”

Video creates a danger, the study said, of “decision-making hubris” by judges.

Many judges do not seem to understand, said Jessica Silbey, a law professor at Suffolk University in Boston, that video is not categorical or irrefutable proof like DNA but only a partial, volatile and dangerously persuasive account of what happened.

Posted by Marcia Oddi on March 2, 2009 02:15 PM
Posted to Courts in general