Book Review: Feigenson & Spiesel’s Law on Display

Neal Feigenson & Christina Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judgment (New York University Press, 2009) 252 pages.

Law has long been about words; today, increasingly it is about pictures as well.  This is the fence (or, if you prefer, the cliff) over which Neal Feigenson and Christia Spiesel want us to look, and the view is quite something.  Their warning, which could be taken as a leitmotif for the whole book, is that “pictures are different” — indeed, much more different, with an impact that is much more portentous, than might appear at first glance.

The authors begin by pointing out that “pictures in law” (their focus really is “pictures in court”) involves several critically different phenomena that need to be discussed in quite different terms.  The first, problematic but both obvious and increasingly common, is the use of videotape material as part of the package of evidence, whether these are surveillance videos, the dashboard cameras routinely  installed in police vehicles, or the product of the increasingly ubiquitous private cell phone.  The problem here is simply an extension of the age-old problem of eye-witness evidence, which is often taken far more literally and attributed much greater weight and reliability than it really deserves.  The most high-profile example so far — Scott v. Harris 127 Sup.Ct 1769 (2007), where the USSC attached an internet-accessible version of the videotape to its decision — splendid illustrates the problem, the USSC majority simply asserting that the video plainly spoke for itself.  But “speaking for itself” is precisely what videotapes cannot do, and the problems of framing, viewpoint and editing (if only with respect to start and end points) can never be overlooked.  The Court’s casualness, without even the excuse of being a crowded docket trial court, is not at all a promising start to an appropriate judicial response.

The second is the use of scientific evidence in picture form. The essential problem is that although videotape material is (or can be, or should be) largely an un-retouched representation of a physical reality, scientific evidence typically involves pictures that have been enhanced to focus on or emphasize relevant details.  Enhance them too little, and they tell judges and juries nothing; enhance them too much, and they become misleading or even dishonest, especially if the viewers underestimate the extent of the enhancement.  And all this, of course, operates in the shadow of the “CSI effect” and the high expectations of science-based examination that it inculcates, with a double risk: on the one hand, juries may punish litigants for failing to come up to the level of polished completeness that the TV show always delivers but real life often cannot; on the other hand, it may be too ready to take the science as more conclusive than it is, as a statement of simple facts rather than an informed assessment of probabilities.  A picture may be worth a thousand words, but scientific evidence in pictorial form needs to come surrounded by at least a thousand words if it is going to be assessed properly and used appropriately.

The third is the use of multi-media presentations to organize the material in a coherent fashion, and then to present it in a powerful and persuasive way.  This is increasingly common inside the courtroom, just as PowerPoint has taken over in the classroom; and in courtroom and classroom alike, one who resorts to the dated words-alone strategy of the “sage on the stage” has already conceded a competitive disadvantage.  The technical standards are becoming increasingly high and the software is constantly evolving; as in many other aspects of the trial process, this suggests a technological arms race in which amateurs, however inspired, must yield to the experienced and the professionals, and the deeper pockets enjoy yet another advantage.  More importantly, however, the techniques of presentation themselves often present problems involving the deliberate or inadvertent distortion of information — for example, the use of animations to create an alternative version of un-witnessed or incompletely witnessed events. Staying up with this moving target is a constant challenge for judges, juries and lawyers alike.

Finally, there is the new possibility of adjudicative interactions that take place entirely on-line, and therefore rely even more heavily on digital material.  To date, this is true less often for trials than for the other forms of adjudication — mediation, arbitration, settlement — that are often available, but the balance is steadily tilting away from trials in any event.   These services are already reality (examples include CyberSettle and MARS [Mediation Arbitration Resolution Services]), even if the more formal trial version of the Michigan Cyber Court never quite materialized.  Videoconferencing and remote or pre-recorded testimony are already seeing some use; more will no doubt follow.  But the challenge here has to do with the opacity of computer architecture.  Underneath every functional service is the world of the systems operator (not to mention his sinister obverse, the hacker) whose impact is hopefully benign but largely invisible; and the very virtues of digitally stored information (infinitely copyable, easily comparable with or combined with other data) carry with it the possibility of undetectable editing.  (As a curious footnote to Scott v. Harris, mentioned above: there were two different police car videotapes in the evidence base at trial, but the version attached to the Supreme Court decisions is identical to neither of them.)

The principles are illustrated through a limited number of focused case studies, both for emulation and for a criticism of techniques that should have been better controlled by the judge.  This is supported by 18 black and white figures, but more extended full-colour material is available on a supporting website, accompanied by online access to all of the videotape material discussed. For obvious reasons, this case study approach is both a strength and a weakness  — a strength because it moves beyond sweeping generalities to specific examples, but a weakness because it inevitably anchors itself in a specific (and steadily receding) time period, as technology and techniques evolve.

Having peeked over the fence, the authors seek to contain the dangers down the twin track of more rigorous judicial standards and rules, and clearer statements of lawyer ethics in the context of trial presentation.  Although entirely plausible, the mildness of the remedies sits strangely with the dramatic statements in the opening chapter; and it cheerfully ignores the USSC’s own experience, which suggests that judges themselves are much too sanguine about the problem.  More generally, it ignores its own early warnings, which is less that juries need help from judges to work with pictures in court, than that judges themselves may be less adept than many members of the general public at reading the multi-layered meanings the pictures convey in an increasingly visual culture.

The book is logically organized, well-written, and completely intriguing; my only complaint would be that it trails off into judge’s directions and lawyer ethics rather than directly tackling its own striking arguments about the “picturization” not just of law but of modern society, a shift that it introduced by directly comparing it to the massive cultural shift from orality to textualism several centuries ago.  But a provocative first introduction to such a large idea is a good thing in itself, and on that basis I would strongly recommend it.

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Peter McCormick is a professor of political science at University of Lethbridge in Lethbridge, Alberta.

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