In a path-breaking decision, the U.S. Supreme Court posted on its website a video along with text of its opinion in Scott v. Harris. Common sense is essentially multimodal. By including video along with its opinion, the Court provided a decision record that communicates its judgment more effectively than would just text.
The Court’s recording of its decisions has had significant effects. In the Court’s first copyright decision in 1834, the Court declared itself “unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” (Wheaton v. Peters, 33 U.S. 59, 668). The Court’s decisions thus became a legally secure component of the public domain. In Burrow-Giles Lithographic Co. v. Sarony (1884), the Court found, “this photograph [“Oscar Wilde, No. 18”] to be an original work of art, the product of plaintiff’s intellectual invention of which plaintiff is the author, and of a class of inventions for which the constitution intended that congress should secure to him the exclusive right to use, publish, and sell.” The Court did not however, include a reproduction of this photograph in its decision. It thus did not place in the public domain a work derived from a photograph of significant public importance. Not doing so, among other effects, lessened public understanding of its authoritative judgment
Verbal statements, whether in judicial opinions or elsewhere, are in some circumstances a poor substitute for video. Courts have long recognized the distinctive value of non-verbal evidence through their practice of admitting into evidence objects in addition to personal testimony and documents. A major issue in Scott v. Harris was the danger to the public from a driver fleeing from police cars signaling to the driver to pull over. Video from the police officers’ cars communicates extent and nature of the danger in a way that cannot be reduced to a collection of propositional statements of fact. The video also specifies an authoritative judgment with respect to the extent of danger much more clearly, especially to the general public, than does just a text.
The justices apparently did not consciously edit video in the Scott v. Harris case record in making their opinions. The case record included four color videos automatically recorded from police cars when they activated their sirens. The justices’ opinions included two very different descriptions of these videos. The decision record for the Court in this case includes, however, just one black-and-white video. That video (the “opinion video”) appears to be the video from one police car appended to the video from another.
Selecting relevant video is an important aspect of reasoned argument in Scott v. Harris. In the opinion video, a total of 3.9 minutes of video (24% of the total run time of the opinion video) showed the crash of Harris’ vehicle and the subsequent effects and actions (image of the overturned vehicle, the clouds of smoke rising from it, the police officers rushing toward the vehicle and desperately trying to open the car door to get Harris out of danger, etc.; for better understanding, watch the relevant segments of the video). Harris, who was only 19 years old, suffered permanent paralysis of his arms and legs from the crash. Irrespective of the legal issues associated with the crash, compassion is a natural and appropriate human reaction to Harris’ suffering. Nonetheless, this specific crash and its terrible human effect is not relevant to judging the reasonableness of the prior police decision to terminate the chase in a way that created a risk of serious injury or death for the fleeing driver. Including the video segment of the crash and its aftermath fosters well-recognized biases, e.g. hindsight bias, outcome bias, affective bias. Video for judging the reasonableness of the police action should excise the video segment showing the crash and its aftermath.
Camera viewpoint is an important, case-relevant aspect of video in Scott. The camera viewpoint of the video approximates that of the eyes of a police officer in a chasing police car. This video, as a resource for immersive, imaginative experience, is thus oriented toward persons imaginatively assuming the position of a police officer. Presenting the video in a way that helps persons imaginatively assume the position of a police officer is the best use of the video. Ensuring that viewers are conscious of that particular video viewpoint helps viewers to judge critically the effects of their viewing experience.
Diegetic time is another important, case-relevant aspect of the video. The video includes the period from when the police officers began to seek to stop the driver to when a police officer terminated the resulting chase. The dangerousness of the chase depends on specific circumstances occurring over time. These circumstances include the fleeing driver’s and the police officers’ physiological states. Since the human hormonal system has slower-acting but more general and longer-enduring effects than the human nervous system, events that trigger hormonal reactions associated with a situation of danger can shape subsequent actions and perceptions of time and danger. Hence judgments of public danger involve complicated temporal issues.
Watching and editing video can promote and communicate reasoned judgment of public danger. An important issue is the time span in which a judgment of dangerousness is reasonably made and revised. Whether unusual events are discounted in such a judgment, or weighted extra heavily, also is an important issue. Watching and editing video as if it were a transparently objective record of events (“naive realism”) obscures how video really works and impedes reasoned understanding of video’s truth value.
Included below are two videos created from video in the Scott case record. The first video includes segments of video from the beginning of the chase, and a segment of video up to the end of the chase. The second video highlights relatively dangerous events that occurred during the chase. Both videos are designed for the viewer to assume imaginatively the position of a police officer. Both videos use selective cuts of the action and connect the video segments with half-second cross dissolves to preserves sense of immersion. Both videos preserve real-world temporal sequence, except for one shift in viewpoint that is visually obvious. The second video stops action at two points to suggest a circumstance that would have been particularly salient in a model of accumulating indications of danger. These videos are not designed to be deceptive or to be propaganda. They are meant to foster rational argument about the danger to the public of allowing the chase to continue.
Testing the effects of a video without carefully analyzing the form of the video in relation to the test isn’t reasonable. For example, a recent scholarly text described an “empirical test” of the Court’s conclusions in Scott. Or perhaps an empirical test of “who sees what in the Scott tape,” or of how a representative sample of jurors “would decide a real-life lawsuit,” or of whether the police or Harris were more at fault “for the risk posed to the public by the chase.” Perhaps the design of this surely quite expensive study was intended to determine “whether the Scott tape admits of competing interpretations” (a question that the justices opinions in Scott v. Harris would seem to have already decisively answered). The study’s scholarly text of course does not speak for itself. The most charitable interpretation I can formulate of what’s written in the text is that the scholars studied naive realism in video.
The study presented to subjects a poorly reasoned, edited version of the Scott video. The edited video included at its end nine seconds of video of the crash and its aftermath. Why nine seconds of the crash rather than the available 231 seconds of video of the crash, or no video of the crash? No reason is given, nor is one readily identified. After a stimulus procedure that positioned a subject as a juror, the subject was presented with the edited Scott video that begins in media res with the camera viewpoint of a police officer. That’s an imaginative inconsistency.
The study’s edited video also has a broken imaginative stream and suppresses a key affective segment for no good reason. At 4 minutes, 52 seconds into video, it has a jump cut to the displayed text “a second police car takes the lead.” This silent, fixed text holds for two seconds, then there’s four frames of this text overlaid on four silenced frames of chase video, and then a jump cut eliminating the text and bringing in chase sound. A short but non-obvious overlap of real-world time follows the cut. The text interruption literally suggests a naively realistic recording of the chase. The interruption, however, breaks the temporal and emotional continuity that supports immersive imagination. The edited video does not include the emotionally affective video segment of the fleeing driving heading directly towards the camera and the subsequent recorded collision. No reason is given for excluding that video segment. Perhaps concern for maintaining the naive realism of following the fleeing driver is the reason. Editing to preserve naive realism is not a good reason for excising this video segment.
In light of this study, the Court’s pointing to common sense from video appears particularly important. Experimental studies of human behavioral economics have uncovered sharp deviations from standard models of rational behavior. Moreover, game-theoretic models and empirical results have shown that human behavior is highly sensitive to details of information, task framing, and circumstances. Most persons have neither time, training, or interest to evaluate meaningfully these and other issues. Careful empirical work can generate useful knowledge. But empirical work can also easily serve as a veil for ideology and have deliberative force primarily through the positional authority of its authors.
Watching video and editing video, in contrast, have some significant advantages. Many persons today have extensive experience watching video. The number of persons with experience in editing video is also growing rapidly. Video can communicate broadly judgments that are difficult to verbalize. Editing video can allow persons to engage in argument and counterargument concerning such judgments. Some forms of reason require extensive resources and training and are entrenched in social hierarchies of prestige and attention. Watching and editing video allows for reason and argument more equally accessible to the public.
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Video Note: The Court posted the opinion video as a large (93 megabyte) RealMedia format download in black-and-white at 720×480 resolution. The color video used in the video above is from the Kahan, Hoffman, and Braman (2008) study video posted on Youtube (320×240 resolution). I downloaded this video, converted it to AVI format, edited it and added a relevant segment from the Court’s opinion video (converted to AVI format), and then converted the resulting video back to Flash video format (320×240 resolution) for posting on YouTube. Video format conversions typically generate some loss of video quality. If I have been able to work directly with the case record video, the above videos could have been produced in color at 720×480 resolution with only one format conversion for online streaming. Such video would have provided a more immersive, more affective viewing experience.
To make it easier for persons to watch and edit the Scott v. Harris video, I uploaded the opinion video to the Internet Archive, as well as the above two videos (opinion video, judgment video 1, judgment video 2). From there, these videos can be streamed, downloaded, and edited in convenient formats. Securing and uploading the case record video to the Internet Archive would be a valuable additional contribution to public discussion.
Update: On Feb. 11, 2008, I sent an email to Profs. Kahan, Hoffman, and Braman alerting them to what I perceived to be serious weaknesses in their article. None of them responded. The article was subsequently published, with the problems described above, in the January 2009 issue of the Harvard Law Review. See 122 Harv. L. Rev. 837 (2009).
 Silbey (2004) provides a useful, if rather diffuse, discussion of case law concerning the use and admissibility of film as evidence. It also discusses important aspects of film and appreciates the work of film scholars and literary critics. Particularly given communication industry developments, it’s worth noting that learning by doing is a common and effective way for better understanding how audiovisual media work.
 See Kahan, Hoffman, and Braman (2008) pp. 4, 12, 17-20.
 Id. p. 2 states that in the oral argument of Scott v. Harris at the Supreme Court, the justices “were making clear that their inclinations rested on a foundation that simply does not admit of counterargument: brute sense impressions.” Similarly, id. p 63 states, “To our knowledge, Scott v. Harris is the only case in which the Supreme Court has invoked brute sense impressions to justify its decision.” Sense impressions are no less brutish than any other aspect of human functioning. Moreover, sense impressions do admit possibilities for reason and learning. Common human sense naturally integrates different levels of sensory processing.
Kahan, Dan M., Hoffman, David A. and Braman, Donald (2008), “Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris” (January 6, 2008). Available at SSRN: http://ssrn.com/abstract=1081227.
Silbey, Jessica M. (2004), “Judges as Film Critics: New Approaches to Filmic Evidence,” University of Michigan Journal of Law Reform, Vol. 37, p. 493. Available at SSRN: http://ssrn.com/abstract=556981.