{"id":2837,"date":"2020-11-03T13:53:53","date_gmt":"2020-11-03T18:53:53","guid":{"rendered":"https:\/\/www2.law.temple.edu\/aer\/?p=2837"},"modified":"2021-12-16T14:56:32","modified_gmt":"2021-12-16T14:56:32","slug":"brain-lessons-selectively-applying-science","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2020\/11\/03\/brain-lessons-selectively-applying-science\/","title":{"rendered":"BRAIN LESSONS: SELECTIVELY APPLYING SCIENCE"},"content":{"rendered":"

Given that the Rules of Evidence were developed without regard to, or prior to the development of, principles of cognitive science, one might expect courts to use scientific research to mediate those rules and, especially, to inform the exercise of discretion.\u00a0 But as two divergent lines of cases show, although each involves how a visual occurrence in the courtroom might impact jury decision-making, the turn to science is selective if not random.<\/p>\n

Let us start with shackling criminal defendants.\u00a0 This act has been condemned as a matter of constitutional law since 1970, in part because \u201cit [is] possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant\u2026\u201d\u00a0 Illinois v. Allen<\/u>, 397 U.S. 337, 344, 90 S. Ct. 1057, 1061 (U.S. 1970).\u00a0 That tentative statement became an affirmative assessment by 2005.\u00a0 \u201cVisible shackling undermines the presumption of innocence and the related fairness of the factfinding process\u2026\u201d Deck v. Missouri<\/u>, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013 (U.S. 2005).<\/p>\n

The science behind the assertion made in Deck<\/em> was recently relied on came in a federal habeas proceeding where the issue was whether the defendant was injured by being shackled, i.e.<\/em>, whether seeing a murder defendant in chains \u201chad a substantial and injurious effect or influence in determining the jury’s verdict[,]\u201d\u00a0 the Brecht<\/em> standard for post-conviction relief.\u00a0 The appellate court\u2019s assessment here had to be made in light of post-conviction protestations of there being no impact coming from testimony of the actual jurors.<\/p>\n

Several jurors recalled at the evidentiary hearing that they had thought Davenport might be dangerous when they saw him in shackles. Another juror recalled that she was sitting closest to Davenport when he testified and a fellow juror had asked her if that made her nervous. She also recalled that there were more guards when Davenport testified because he was not in shackles. But the jurors who testified that they saw Davenport’s shackles also all said that they believed shackling was\u00a0routine practice given that he was on trial for murder or because he was in pre-trial incarceration. Every juror asked also testified that Davenport’s shackling did not affect their deliberations.<\/em><\/strong><\/p>\n

Davenport v. MacLaren<\/u>, 964 F.3d 448, 453 6th<\/sup> Cir. 2020)(emphasis added)<\/p>\n

Rejecting the jurors\u2019 self-professed impartiality, the majority in Davenport<\/em> first turned to a generalized repudiation of the \u2018trust me\u2019 testimony.<\/p>\n

If a practice “‘involves such a probability that prejudice will result that it is deemed inherently lacking in due process,'” like shackling a defendant without case-specific reasons, “little stock need be placed in jurors’ claims to the contrary. Even though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.”<\/p>\n

964 F.3d at 466 (citation omitted).\u00a0 Importantly for this article, the majority then turned to what it called \u201cvoluminous\u201d social science to support this determination, concluding that \u201c[t]his research suggests that the shackling of Davenport, a 6’5″ tall black man weighing approximately 300 pounds, would tend to “prime” racialized presumptions of dangerousness and guilt.\u201d\u00a0 Id.<\/em>, at 466 n.13.\u00a0 Because the jury decision at issue -whether the crime was first or second degree murder- was not a slam dunk,\u2019 one, the prejudice could not be ignored.<\/p>\n

Intriguingly, the research cited by the majority was not shackling-specific, but instead dealt with the general problem of associating race with criminality, what the majority summarized as \u201cimplicit associations between Black and Guilty.\u201d\u00a0 Id.<\/em>, at 466 n.13.\u00a0 Yet when confronted with a type of proof where research has shown a clear biasing effect, courts have uniformly ignored the social science.\u00a0 The is the case with the use of slow-motion video replay.<\/p>\n

First, the research.\u00a0 Repeated studies have shown that slowing down a video when it is played to a decision-maker \u2013 be it a juror or, as in one study, experienced soccer referees \u2013 increases the perceiver\u2019s assessment that conduct was intentional.<\/p>\n

A main characteristic of slow motion is that it affects the impressions of the duration over which real-time events unfold. As suggested by Caruso et al., the temporal modulation of the dynamics creates the perception that the offender has much more time to contemplate his action than he actually does. Therefore, physical contacts and violent actions might be perceived more intentionally and seriously. Indeed, we hypothesized that slow-motion replays could disrupt normal perception of causality, which in turn could influence the perceived duration of the event.<\/p>\n

Spitz, J., Moors, P., Wagemans, J. et al.<\/em> The impact of video speed on the decision-making process of sports officials. Cogn. Research<\/em> 3, <\/strong>16 (2018). https:\/\/doi.org\/10.1186\/s41235-018-0105-8<\/a> (last visited September 4, 2020).\u00a0 An additional concern arises if the video is played in slow motion more than once.\u00a0 \u201cIf viewers’ perceptions adjust such that slow motion appears normal to them after extended viewing, then it is possible that viewers’ perceptions of the amount of time that subjects in video had to act and their evaluations of how intentional the subject’s actions were would also intensify with repeat viewings.\u201d\u00a0 NOTE: THE NOISY “SILENT WITNESS”: THE MISPERCEPTION AND MISUSE OF CRIMINAL VIDEO EVIDENCE, 94 Ind. L.J. 1651, 1675 (2019).<\/p>\n

The impact of repeated viewing is not cured by reminding jurors that they are watching an altered version of the events.<\/p>\n

[P]articipants reported similar results even when they were informed, by way of a timer in the video, exactly how much the video had been slowed. And, perhaps most surprising of all, viewers who watched a slow<\/strong>–motion<\/strong> video<\/strong> continued to report a higher degree of intent<\/strong> even after they watched the regular speed video: “allowing viewers to see both regular speed and slow motion replay mitigates the bias, but does not eliminate it.”<\/p>\n

Stoughton, POLICE BODY-WORN CAMERAS , 96 N.C.L. Rev. 1363, 1413 (June, 2018).<\/p>\n

Yet how have courts responded?\u00a0 Uniformly by rejecting challenges to slow-motion replay.\u00a0 A LEXIS search of “slow w\/2 motion w\/3 video w\/12 intent! or prejudic!” (last run September 4, 2020) produced eleven decisions at both the state and federal level.\u00a0 Of those addressing admissibility, none found an abuse of discretion; and disconcertingly not one cited to or otherwise acknolwedged the research on the distorting impact slow-motion replay generates.<\/p>\n

Some of these decisions may be proper, especially where slow motion was necessary to permit a better view of the perpetrator\u2019s face and therefore allow the jury to determine the identity of the perpetrator or otherwise assess whether certain conduct actually occurred such as whether a knife was used in a stabbing rather than slashing fashion. \u00a0But time and again the courts also talk of the need to prove intentionality, and then add reasoning that is a- or anti-scientific.\u00a0 Such sentiments include the following:<\/p>\n