Unfair (14 page)

In truth, none of us are immune to these dynamics of perception and judgment. They influence every player in the courtroom. And they shape the public response to jury verdicts.
When O.J. Simpson was acquitted of murdering his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman, the reaction of many was to find a flaw in the jury. Why did they acquit?
Well, nine out of the twelve jurors were black, and they must have voted based on racial allegiance, consciously disregarding all the evidence.
Or maybe it had to do with intelligence—after all, only two of the
jurors had college degrees; they probably didn't understand the scientific evidence or were easily manipulated by the masterful con men led by Johnnie Cochran. Few people were willing to entertain the notion that other people might simply look at the same evidence, develop a genuine “reasonable doubt,” and feel that the prosecutors had failed to prove their case.

If different people with different backgrounds and identities can look at the same events and see very different facts, is it also possible that the same person can look at the same events and see very different facts depending on how information is presented? It seems highly doubtful—as long as we are looking at “reality,” the frame shouldn't matter. A human witness can forget, get confused, or lie, but we assume that a photograph or video provides us with an accurate record of exactly what happened.

It was precisely this confidence in the objectivity of videotape that led the Supreme Court to decide
Scott v. Harris
on its own.
As Justice Scalia explained, by presenting a neutral, unfiltered account of events, the video of the police chase revealed Victor's version of events to be a “visible fiction.”
And the dawn of the “video age” has been hailed by many people across the political spectrum as a clear path toward improving accuracy in our legal system: finally, juries will be able to see key interactions with their own eyes.
Even Marge Simpson has weighed in: “You know, the courts may not be working anymore, but as long as everyone is videotaping everyone else, justice will be done.”

But are Marge and Justice Scalia right?

Unfortunately, the latest scientific evidence says they are not. Unless you're a film critic or an artist, you don't tend to think about how the particular camera angle or viewpoint influences the way we make sense of the scene in front of us. We get caught up in what we are seeing, without considering
how
we are seeing it or what we might be missing.
But all of our seemingly neutral
media hold the potential to bias assessments of what transpired and who was to blame.

Over the last few decades, researchers have conducted a number of experiments showing how this happens.
When we view events as if standing in the shoes of the person experiencing them, we are much more likely to attribute the actor's behavior to forces and constraints in the surrounding environment than when we adopt the perspective of an outside observer, in which case we tend to make attributions that focus on the individual's disposition and character.

Imagine that you are impaneled on a jury and have to decide whether the defendant's confession was voluntary or coerced by the police.
As luck would have it, the entire interrogation was recorded, and you are provided with a videotape from one of three cameras in the room: a camera directed at the interrogator, a camera directed at the defendant, or a camera positioned to the side, showing both parties. It would seem reasonable to assume that regardless of the footage you were shown, you would come to the same conclusion, since all three cameras capture the exact same scene.
When scientists conducted a number of studies using such a setup, however, they found that perspective made a big difference.
By simply shifting the point of view from the person being questioned to the interrogator, researchers were able to significantly reduce the number of people who thought the resulting confession was coerced.
Watching the interrogator through the eyes of the suspect, it was a lot easier to see—and feel—the menace and pressure.
Those who watched the videotape that showed both sides made assessments that fell in between the two conditions.

Camera perspective bias can also influence our assessments of whether the defendant is guilty and how severely he should be punished.
In one experiment, moving from a confession videotape showing both the suspect and the interrogator to one focused solely on the suspect doubled the rate of conviction.
What's more, the bias seems to occur both for minor offenses like shoplifting
and for more serious crimes like burglary, rape, and manslaughter.
And it's surprisingly sticky: greater expertise (being a law enforcement officer or a judge), increased accountability, and judicial instructions aimed at encouraging people to be more mindful of perspective bias all appear to be largely ineffective. People just cannot see what they are missing.

Could camera perspective bias have played a role in the outcome of Victor Harris's case?

Justice Scalia thought he had rooted out any potential unfairness by noting that “there are no allegations or indications that this videotape was doctored or altered in any way,” but he and the rest of the majority were wrong.

The video camera mounted in Officer Scott's cruiser seemed to offer an unfiltered lens on the core facts of the case.
But it didn't just record a high-speed chase; it recorded a chase
from the perspective of the lead police officer involved in the pursuit
.
Watching the tape, we sit where he sat and hear what he heard: from the taillights of the suspect's Cadillac reflecting off those wet Coweta County roads to the crackling voice of the dispatcher telling us to “take him out.”
Having adopted the officer's physical perspective, it becomes extremely easy to share his assessment of the situation and understand why he acted the way he did.

What if the Supreme Court had watched another, different videotape—say, a clip taken by a pedestrian standing at an intersection or footage from a news helicopter hovering above?
What if there had been a recording taken from inside Harris's car, looking back at the police cars hot in pursuit?
Each of these tapes would be a true, accurate depiction of the police chase, but the research suggests that we would reach very different conclusions about the level of risk the chase created, whether deadly force was reasonable under the circumstances, and who was to blame for putting the public in danger.

Seeing events through Victor's eyes would have put his actions in a whole new light.
Viewers might have considered what it must feel like to be a nineteen-year-old black man in Georgia being pursued late at night by multiple police cars with lights flashing and sirens blaring.
It might have triggered feelings of empathy and raised challenging questions: “How would I have responded under the circumstances, after making that initial mistake of not pulling over, knowing how officers tend to treat those who flee, and seeing no witnesses to intervene if things got out of hand?” With such a video, it would have been easier to see Victor as a young man influenced by powerful situational pressures.

At the time of the accident, Victor was working at a temp agency to support himself as a full-time student at Griffin Technical College.
He had left home at four in the morning and had been working all day.
By 11 p.m. he was completely exhausted and was not paying attention as he passed the speed trap.
When he suddenly saw the lights in his rearview mirror, he “panicked.”
His license had been suspended for unpaid tickets, and he was afraid he'd go to jail.
Running from the police is the last thing many Americans would ever do, but for young African American men—for whom the threat and fear of harassment, capture, and incarceration is ever present—it can be a basic instinct, learned as a kid.
There is no expectation that things will work out, that you'll get a fair shake, that you can trust in the police and the system.
For many black teens, when you see a cop, you just go.

In a fateful instant, Victor pressed down on the gas.
As he explained later, “It wasn't my intention to put anyone's life in danger or to scare anyone. My only plan was to get home….As I was running, I saw other police cars that were blocking off the streets, and I felt like I was being trapped….I couldn't believe this was actually happening to me….The last thing I wanted to do was hurt myself or anyone else. I was nineteen years old and I was scared.”

Victor Harris made a terrible error in judgment that rainy night, but he did not deserve to be paralyzed, and he did not deserve to have his case taken away from a jury. The system failed him because of the psychological limitations of the people who operate it—limitations we all share.
We see, in the words of the Bible, the speck in the eye of our brother but fail to notice the beam in our own eye. We blindly trust in the objectivity of our technologies because they seem to deliver reality, when, in truth, they may distort our perspectives.

Reasonable jurors can differ radically in how they perceive a case, and if you draw the “wrong” panel, you might be convicted of a crime when twelve other jurors would have found you innocent. Similarly, efforts to protect suspects from police abuse, like taping all questioning, can, paradoxically, have the effect of unfairly tipping things in favor of the prosecution if the camera happens to always be placed behind the interrogators.

Moving forward, both of these concerns warrant dedicated reforms.

With respect to perspective bias, the time to act is now.
Every year, more squad cars are outfitted with dashboard cameras, more jurisdictions require interrogations to be taped, and more officers are wearing recording devices on their bodies as standard procedure. Most of these recordings will show events from the perspective of the police, and each one will hold the potential to sway those who watch it later, whether that is a prosecutor deciding whether to charge a suspect with resisting arrest, an internal-affairs detective reviewing the conduct of an officer, a juror trying to figure out who the aggressor was, or an appellate judge reviewing a case.

But the solution isn't to eliminate cameras altogether. Used in the correct manner, cameras may offer ways to make our system fairer.

In 2012, a program was introduced in Rialto, California, to place small cameras on the bodies of police officers (in this case, on their sunglasses).
Over the next year, both the number of complaints filed against officers and the number of incidents where officers used force decreased by well over 50 percent.
Knowing that they were being watched seemed to encourage cops and members of the public to behave more civilly.

The proliferation of video footage may also help us to avoid certain biases (for example, by eliminating the need to rely on faulty eyewitness memory to identify a suspect). And once we understand how footage can influence perception, we can change how we use cameras to address that distortion.
Since camera angles that offer a third-party perspective can eliminate biased assessments of whether a confession was coerced, that should be the first choice.
Since it's often not possible to employ dashboard cameras—or those attached to an officer's glasses—in a neutral manner, such video footage shouldn't be used in a conclusive fashion, as it was by the Supreme Court.
We should be particularly careful when footage doesn't show all parties in the frame or when it captures only some of the key events.
Alternatively, we might allow it to be entered into evidence only with the consent of the defendant.

Unfortunately, controlling for the influence of each juror's unique background and set of experiences presents a more vexing puzzle.
The Sixth Amendment provides the defendant in a criminal trial with the right to “an impartial jury.” It's a promise that we do not keep and may never be able to deliver. Still, we can do better.

Shifting more responsibility for determining the facts to judges has always been a possibility. But when judges usurp the jury's role on the grounds that something appears clear and uncontroversial, as the Supreme Court did in
Scott v. Harris
, they run the risk of simply substituting their own backgrounds and experiences for those of the jury.

Rather, we should focus on jury composition. If different jurors perceive the key facts and legal issues of a case differently, then juries ought to be diverse.
It is not fair that certain groups—such as white Americans—are currently overrepresented in jury pools while other groups are underrepresented. That is not fair to prospective jurors from disadvantaged groups, and it is not fair to people like Victor Harris who would face better odds in court with more inclusion. To treat the problem, we need to look hard at why—decades after reforms were put in place to address the exclusion of certain groups—jury diversity continues to be an issue. Multiple reforms may be in order, including paying jurors (or employers) enough to ensure that no one loses income, providing transportation and childcare to those who need it, and rethinking how we screen jurors.

Under our current system, during the
voir dire
process prior to trial, the lawyers and the judge attempt to remove certain people from the jury pool whom they expect to be biased toward one side or the other. The challenge, as I'll explore in greater detail later, is how to get
voir dire
to serve its intended purpose as we learn more about how particular identities, experiences, and values may influence juror perceptions and judgments at trial.

Imagine a case of check fraud against a forty-two-year-old obese African American mother of six living on welfare. How should we go about sorting through potential jurors?

Recent research suggests that a person's weight can influence juror assessments, with male jurors more likely to reach a guilty verdict when the accused is an overweight woman than when she is thin.
Female jurors, by contrast, do not exhibit this body-size bias, nor do men who are judging other men.
What's more, slim men appear to be particularly skewed against heavy female defendants: they are not only significantly more likely to conclude that an obese woman meets the criteria for the crime than a slender woman, but also inclined to judge her more likely to reoffend.