Towards Visual and Audiovisual Evidence in Criminal Proceedings
MMR-Aktuell 2010, 308737 - Towards Visual and Audiovisual Evidence in Criminal Proceedings: Reflections on Regina Austin’s Article “Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?” from the Standpoint of Multisensory Law and Therapeutic Jurisprudence.
Visual and audiovisual evidence is becoming increasingly important in civil and criminal proceedings. Since such evidence is still far from being understood, it has begun to attract greater interest among legal scholars and practitioners. Drawing upon the insights of multisensory law and therapeutic jurisprudence, this paper reflects on Regina Austin’s article about victim impact videos, which serve as audiovisual evidence in criminal proceedings in U.S. state jurisdictions. Providing an in-depth and original study on victim impact videos, this article fully deserves to be brought not only to the attention of the U.S. legal community. Members of other legal systems challenged with the incursion of legal (audio-)visuals into (criminal) courtrooms would also benefit from her broad insights. The greatest value of Regina Austin’s article lies in opening up a wide field of vital problems and related questions that legal research and training, practice and legislation are urgently called upon to tackle. In this context, it is necessary to look out for answers offered especially by multisensory law and therapeutic jurisprudence, or indeed answers which these fields could or rather should further develop.
I. Visual and Audiovisual Evidence in Criminal Proceedings
Establishing the facts of the case plays a crucial role in court proceedings. How this is done can have grievous consequences for the defendant and occasionally also for their victim(s) in criminal proceedings. These facts are mainly presented verbally before criminal courts, at least in German-speaking Europe. Sometimes, however, oral statements are supplemented with visual and audiovisual evidence, too. For instance, offenses that are photographed or videotaped by bystanders or surveillance cameras located in public spaces (video recordings of speeding drivers and/or other persons committing crimes). In private spaces, such as banks and commercial stores, offenses are also videotaped.
In the United States, legal and/or legally relevant visuals and audiovisuals serving as evidence are already used more in criminal proceedings. The kinds and amount of videotaped legal evidence admissible in criminal proceedings themselves are even growing. Additionally to the previously mentioned examples, in many U.S. state jurisdictions, for example, “video recording of confessions is required by law” (R. Austin, The Next “New Wave”: Law-Genre Documentaries, Lawyering in Support of the Creative Process, and Visual Legal Advocacy, Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 16 (2006), 809–868 (848)). There are further kinds of videos which are shown in U.S. criminal courts, so-called victim impact videos (“Opferfolgenvideos” in German) and mitigation videos (“Strafmilderungsvideos” in German). The purpose of mitigation videos is to obtain a better “result” for the defendant. For instance, she or he should get life imprisonment (without the possibility of parole) instead of being sentenced to death. As regards the victim impact videos, the prosecution employs them especially in the penalty phase where the jury decides on the sentence after finding the defendant guilty (in capital cases on death penalty or life imprisonment, at least in those U.S. states (still) allowing the death sentence).
To my knowledge, victim impact videos are subject to the statutes and court rules relating to victim impact evidence in general. Here, audiovisual or multisensory evidence is not mentioned. In other words, no legal basis (statutory law) directly related to victim impact videos exists to date. Instead, there is a rich jurisdiction in the United States on the admissibility of these victim impact videos. The U.S. jurisdiction has so far concerned itself with the (potential) emotional impact on the jury members, and thus with the prejudicial impact on the defendant. Hitherto, the content, respectively the probative value of their content has been discussed too little. Existing criteria are still not differentiated enough to decide either on the admissibility of such videos in court or on their probative value.
This raises the question according to which criteria the U.S. jurisdiction should decide on the admissibility of victim impact videos and on their probative value. At a later stage, there would be a strong need to raise the question which admissibility criteria and which probative value criteria a special statute on victim impact videos should formulate. Such a statute could regulate the use of legal (audio-)visuals in criminal procedure in general but might include a section where victim impact videos are given special consideration. The question how the use of (audio-)visuals in court procedures, particularly in criminal cases, should be treated, respectively ruled, might also be relevant to European legal systems or at least become (more) relevant, since the new media do not stop on the thresholds of European courtrooms but actually cross them (see, for instance, Beukelmann, S./Sacher, M., Zeig mal! – Der Einsatz von Multimedia im Gerichtssaal [= Let Me See! – The Use of Multimedia in the Courtroom], in: W. Hassemer, E. Kempf, and S. Moccia (ed.), In dubio pro libertate [= In Case of Doubt, for Freedom], 2009, 33–43). In these legal systems, the admissibility and probative value of (audio-)visual exhibits might give rise to intense debate as well. The taking of evidence constitutes a legal problem that is also ruled, for instance, in Swiss law. Here, the court must first decide on the admissibility of the criminal evidence and thereafter on its probative value (see, e.g., Ventura, P., Etude comparée du principe de l’intime conviction suisse et du doute raisonnable américain, in: Jusletter May 31, 2010, 1 sqq..; downloadable at: www.jusletter.ch).
II. “Documentation, Documentary, and the Law: What Should Be Made of Victim Impact Videos?”
1. Brief overview
Regina Austin, Professor at the University of Pennsylvania Law School and Director of the Penn Program on Documentaries & the Law, explores the problems and the questions related to victim impact videos in her recent article entitled “Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?” (see R. Austin, Documentation, Documentary, and the Law: What should be Made of Victim Impact Videos? Cardozo Law Review, Vol. 31 (2010), 979–1017; available online at: http://www.law.upenn.edu/cf/faculty/raustin/). In particular, she raises the question which content these videos should feature so that their probative value is conclusive. In other words, she asks which content-related criteria must be fulfilled so that the probative value of a victim impact video is not inconclusive. To answer this question, Regina Austin’s argumentation not only rests upon the standards of the Federal Rules of Evidence, Rule 403 (see http://www.law.cornell.edu/rules/fre/rules.htm#Rule403). But to interpret this Rule, she draws strongly on the insights of (documentary) film studies and (popular) cultural studies, too. Regina Austin’s methodological approach is not only remarkable from a historical perspective on law and jurisprudence. But her approach is also highly relevant to multisensory law. This new legal discipline welcomes the challenge to explore how to explore (audio-)visuals in the legal context in a methodologically sound manner, since neither the established disciplines of the applicable law nor the established basic legal disciplines offer (enough) pertinent insights.
Regina Austin’s Article is divided into five parts: “Sara Nokomis Weir: 1974-1993” (I.); Probing the Improbable Probative Value of Victim Impact Videos (II.); “’Angie’ and the Defendant’s Response to Victim Impact Videos (III.); “’Georg Henry Aulson IV’” (IV.), and Recommendations and Conclusions (V.). For the sake of readability, I will both summarize and comment on these five parts in the following section of my review.
2. The five parts – summary and comment
a) Part I (“Sara Nokomis Weir: 1974-1993”)
In Part I, Regina Austin comments on a Supreme Court decision to reject the appeal of Douglas Kelly (defendant). In this capital case (“Kelly v. California”), the defendant opposed the admissibility of a twenty-two-minute victim impact video featuring fragments of the victim’s life (with her family and friends) (see http://www.supremecourt.gov/media/media.aspx). The author reflects on the opinions of Justice John Paul Stevens (respecting the denial of the petitions for writs of certiorari) and of Justice Stephen Breyer (dissenting). With good reason, Regina Austin observes that the jurisdiction has so far concerned itself with the (potential) emotional impact on the jury members and thus with the prejudicial impact on the defendant. What strikes me as an outsider of the U.S. legal system is that the Supreme Court of the United States has not based its considerations on (documentary) film studies, particularly as regards the (potential) effects of music incorporated in such a video (the video about the victim Sara Nokomis Weir contains music by Enya (see http://en.wikipedia.org/wiki/Enya). In view of this, one is tempted to speculate whether the outcome of the appellate proceedings would have been different. To illustrate my point, I would like to quote Gorbman: “The psychological dimensions of film music have subtended much writing in the field. What effects does music have on the film’s spectator-auditor? […] Like the sonorous envelope, music’s bath of affect can smooth over discontinuities and rough spots, and mask the recognition of the apparatus through its own melodic and harmonic continuity. Film music acts as a hypnotist inducing a trance: if focuses and binds the spectator into the narrative world” (Gorbman, C., Film music, in: The Oxford Guide to Film Studies, ed. J. Hill and P. C. Gibson, Oxford [et al.] 1998, 43–50 (46 sq.)).
b) Part II (Probing the Improbable Probative Value of Victim Impact Videos)
c) Part III (“Angie” and the Defendant’s Response to Victim Impact Videos)
In Part III, Regina Austin analyzes a further case (“State v. Leon”), where a four-and-a-half minute victim impact video played a decisive role. First, she describes the facts of this criminal case: Abel Leon killed his wife Maria Evangelina Castellanoz Leon called Angie. In the following, the author comments on the proceedings before the first and second instance. In doing so, she focuses specifically on the argumentation strategy of the defense who had unsuccessfully attacked the video, which shows the victim interacting with her three little children. Although Regina Austin makes some critical points on this legal audiovisual, she comments as follows on its probative value: “The most significant contribution of the video was that it showed the most vulnerable victims of the defendant’s behavior – his children. At the time of trial, Angie’s son was six years old, his older sister was five, and Angie’s baby girl was two. For survivor’s as young as Angie’s children, family photos and home movies and videos of the victim represent their loss in a direct, concrete way” (Austin, Cardozo L. Rev. 31 (2010), 1008). Moreover, the author suggests how the defense lawyer might have integrated this video into his strategy to obtain mitigation for his client. I cite one of Regina Austin’s many examples: “Counsel could have pointed to the strong physical resemblances or character traits that link Abel to his children, each of which are likely to grow over the years and might someday call for a father’s guidance and support” (Austin, Cardozo L. Rev. 31 (2010), 1009). In present and future criminal cases, defense counsels could possibly orient themselves towards this and other argument(s) made by the author. Regina Austin concludes Part III by stating that “the more probative and pointed a victim impact video is, the fairer it is to expect the defendant to respond to it” (Austin, Cardozo L. Rev. 31 (2010), 1010).
d) Part IV (“George Henry Aulson IV”)
Part IV explores “a victim impact video that was made by the young adult son of a murder victim in connection with a parole hearing, not a sentencing” (Austin, Cardozo L. Rev. 31 (2010), 1010). The author explains how this nine-minute video (see, for instance, http://www.youtube.com/watch?v=uATxCVAAik0&NR=1) “satisfies some of the criteria that courts might demand to insure the probative value” of such legal audiovisuals (Austin, Cardozo L. Rev. 31 (2010), 1010).
e) Part V (Recommendations and Conclusions)
In Part V, Regina Austin postulates requirements that victim impact videos should meet and draws conclusions. I would like to take up some of these requirements and comment on them. Insights from multisensory law will affect my response. In addition, I will try to take insights from therapeutic jurisprudence into account. Within the scope of this review, it is not possible to outline the subject matter and cognitive interest of the two disciplines. Since I have already indicated some points on multisensory law, I would like to restrict myself to quote the beginning of David B. Wexler’s introductory paper on therapeutic jurisprudence. Together with Bruce J. Winick, Director of the Therapeutic Jurisprudence Center in Miami, Florida, (see http://www.law.miami.edu/tjcenter/), he originated therapeutic jurisprudence: „Therapeutic jurisprudence is the ‚study of the role of the law as a therapeutic agent.’ It focuses on the law’s impact on emotional life and on psychological well-being. These are areas that have not received very much attention in the law until now. Therapeutic jurisprudence focuses our attention on this previously underappreciated aspect, humanizing the law and concerning itself with the human, emotional, psychological side of law and the legal process. Basically, therapeutic jurisprudence is a perspective that regards the law as a social force that produces behaviour and consequences. Sometimes these consequences fall within the realm of what we call therapeutic; other times antitherapeutic consequences are produced. Therapeutic jurisprudence wants us to be aware of this and wants us to see whether the law can be made or applied in a more therapeutic way so long as other values, such as justice and due process, can be fully respected” (Wexler, D. B., Therapeutic Jurisprudence: An Overview; at http://www.law.arizona.edu/depts/upr-intj/). In what follows, I will give reasons in favour of Regina Austin’s postulates, if need be, and present counter-arguments. I will try to offer other solutions as well.
Regina Austin claims that victim impact videos should have a time limit. As a rule, “no longer than three to five minutes” (Austin, Cardozo L. Rev. 31 (2010), 1014). Exceptionally, such video could be two or three minutes longer “when the video deals with specific issues related to rehabilitating the victim’s character or explaining the victim’s involvement in the circumstances surrounding her or his death if the defense raises or is likely to raise such issues when arguing mitigating circumstances” (Austin, Cardozo L. Rev. 31 (2010), 1014). Thanks to the new media, it has become more simple and cheaper to produce videos – also in private life (see Austin, Cardozo L. Rev. 31 (2010), 989). Nevertheless, for those who do not have the necessary equipment at their disposal, they must either borrow or rent it, or have the video made by someone else. Anyway, to limit the victim impact video in time, might be economically beneficial to those having to commission another person. Even if such a video fulfills the requirements of the (established) practice of criminal courts, it might always have a certain emotionalizing impact (after all, not too different from purely oral victim impact statements). The longer this video lasts, the greater the danger is of being emotionalized by it. A time limit would be one kind of countermeasure. Creating a victim impact video can have, as Regina Austin puts it, a “beneficial cathartic effect” (Austin, Cardozo L. Rev. 31 (2010), 1013). From the viewpoint of therapeutic jurisprudence, this creation process might promote the emotional, cognitive, and physical well-being of the victim’s survivor(s). Hence, the question needs to be raised whether the proposed rather rigid time limitation might not have antitherapeutic consequences for the survivors. For that reason, I would recommend not limiting these videos or at least substantially enhancing their timeframe. To compensate for this, the judge should be obliged to thoroughly inform the jury and the defendant about the potential emotional impact of the video. Probably, this would require training criminal judges accordingly.
As regards the video’s content, the author postulates that it “should be probative of the issues pertinent to sentencing in the particular case. It should be directed at: (1) highlighting the victim’s unique qualities ([…]) as evidenced by specific acts, behaviour, or events; and (2) describing the impact of the victim’s death on survivors as evidenced by their history of interaction with the victim” (Austin, Cardozo L. Rev. 31 (2010), 1014). Furthermore, the author says that the video’s content should not be “redundant of other evidence, or unnecessary” (Austin, Cardozo L. Rev. 31 (2010), 1015). Basically, her requirements make sense. If I am not mistaken, the great danger lies in the defense using videos that are “redundant of other evidence, or unnecessary.” The defense counsel could, for instance, argue that the video repeats the oral statements of the prosecution and/or the survivors of the victim. Or the defense could request that these legal actors restrain themselves to oral, that is, purely verbal victim impact statements, without being able to express themselves audiovisually. I doubt that this danger would contribute to fostering the well-being of the persons involved in the sentencing phase of the trial. I would therefore suggest renouncing these two criteria. Instead, I would recommend differentiating the content criteria even further. The French sociologist Pierre Bourdieu’s concept of the different types of capital might be useful in this respect. Starting from Regina Austin’s content criteria, victim impact videos could feature, for example, the social, cultural, symbolic, and perhaps the physical capital of the victim, too.
Regina Austin also suggests narrowing down the group of people qualified to produce victim impact videos. She urges these persons to act consciously and (self-)reflectively. Moreover, she argues for the need “to accommodate the limited capacities of children to testify in person” (Austin, Cardozo L. Rev. 31 (2010), 1015). All these postulates are intelligible. As regards the limited abilities of the children, there would be a need to further substantiate Regina Austin’s claim. The question is which concrete possibilities the U.S. jurisdiction would envisage in this respect.
Her postulate that the „defense counsel should certainly be given advance notice of and access to victim impact videos or photo slide shows“ (Austin, Cardozo L. Rev. 31 (2010), 1015), and that she or he “should be allowed to inquire as to whether the slide show or video was compiled by the victim’s survivors or by a professional, and if a professional was involved, who directed or shaped the message” (Austin, Cardozo L. Rev. 31 (2010), 1015) helps provide both parties of the criminal trial with equal fighting chances.
The author calls for explaining the different content and function of victim impact and mitigation videos to the members of the jury. There is no reason not to support this claim. Regina Austin’s postulates illustrate in commendable detail that there is a great need for providing the court members, lawyers, prosecutors, and the laypersons involved, such as the defendant and the survivors of the victim, with relevant insights into legal (audio-)visuals used in criminal courts. From this arises the question who should be tasked with the duty to provide such information. From my Continental European or rather Swiss legal viewpoint, it would be the judge’s obligation, if need be, after having received the necessary (further) training in multisensory or specifically visual and audiovisual law. The (American) Federal Judicial Center (see http://www.fjc.gov/), for instance, might even offer a video introduction to this topic so that the judge could refer all persons involved to this video.
III. De mortuis nil nisi bene (Of the dead, nothing unless good)?
In a most impressive way, Regina Austin’s article presents an in-depth study on victim impact videos. Her original and rich thoughts fully deserve to be brought not only to the attention of the U.S. legal community. Members of other legal systems challenged with the incursion of legal (audio-)visuals into (criminal) courtrooms would also benefit from her broad insights. To me, the greatest value of her article lies in opening up a wide field of vital problems and related questions that legal research and training, practice and legislation are urgently called upon to tackle. In this context, it is necessary to look out for answers offered especially by multisensory law and therapeutic jurisprudence, or indeed answers which these fields could or rather should further develop.
Before finishing my review, I would like to raise some of these questions quite generally in relation to the use of legal (audio-)visuals in (criminal) procedures:
De mortuis nil nisi bene (of the dead, nothing unless good)? I hope that the weighty answers to these difficult and terribly delicate legal or legally relevant questions do not lead to totally throwing over board this moral-ethical principle, whose observation also has the survivors’ well-being or their recovering it in mind. I think legal documentaries can audiovisually express subjectively colored truths about the person(s) portrayed and still remain authentic, at least to the legally required, respectively permitted degree. In comparison to purely verbal rhetorical strategies in (criminal) courts, the law should not raise the bar too high with respect to multisensory persuasion strategies just because lawyers are still not familiar (enough) with them.
Dr. Colette R. Brunschwig, University of Zuerich, Department of Law, Legal Visualization Unit. In Memory of Bruce J. Winick