Video and The Nation-Jury

Video makes all citizens participants in the justice system

By , Starting this fall, Ronald K. L. Collins will be a visiting associate professor of law at George Washington University in Washington, D.C. David M. Skover is a professor of law at the University of Puget Sound in Tacoma, Wash. They are co-authors of a just-published article in the Stanford Law Review on the impact of video on law.

GEORGE HOLLIDAY. He is the man who on March 3, 1992, made a video of the police beating Rodney King. What he recorded on the balcony of his Lake View Terrace apartment has changed our very conception of the rule of law. Our traditional icon of justice - Justicia Blindfolded - has been replaced by a new image of justice - Justicia Seeing. In time, the dead letter of the law may yield to the dynamic eye of the video.

"[It] is hard to understand how the verdict could possibly square with the video," President George Bush told the nation last week in a televised address. And that's precisely the point. Ever since KTLA in Los Angeles first aired the Holliday video, people of all colors and classes wondered how the electronically recorded event could be other than what it appeared - raw and unrestrained police brutality.

Again, President Bush: "What you saw and what I saw in the TV video was revolting. I felt anger. I felt pain. I thought, 'How can I explain this to my grandchildren?' "

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The simple truth is that there is no way to explain the gap between the video and the verdict. Why? Because all the legal maneuvering in the world cannot nullify an age-old maxim - seeing is believing. As Los Angeles mayor Tom Bradley put it: "Our eyes did not deceive us. We saw what we saw, and what we saw was a crime."

When Michael Stone, attorney for officer Laurence Powell, told the Simi Valley, Calif., jury that "you're not going to be able to look through the eye of the camera," he invited them to dismiss the seeing is believing maxim. They did, but the rest of the world did not, indeed could not.

Mr. Holliday's 81 seconds of video, and its televised airing, transformed the nation into the real jury in the Rodney King case. Justice was no longer localized. Rather, the nation-jury effectively became the second trier-of-fact, and its verdict would be based exclusively on the video.

The video altered our long-standing and automatic deference to the wisdom of the local jury. When the truth of the video collided with the verdict, deference gave way to defiance.

What is at stake here is more than lawyerly tactics, e.g., whether the prosecution erred in not calling King to the stand or whether the defense triumphed in securing a particular set of jury instructions. Such legal logic may have tilted the scales in the minds of the local jurors.

But in the eyes of the nation-jury, visual logic, as Marshall McLuhan labeled it, trumps legal logic, with the result that the Simi Valley verdict can only be explained as either bizarre or racist. When defense counsel Stone urged the jury to ignore what their eyes told them, he unknowingly invited scrutiny beyond any not-guilty verdict. And a "stunned" Bush accepted the invitation when he said that the verdict "was not the end of the process."

Video justice portends much for our legal system. For one thing, it encourages all triers-of-facts to be more mindful of context and less mindful of abstract rules. Ultimately, video justice is more aligned with rules of equity than with rules of law. In that sense, Justicia must remove her blindfold. This is not to say that justice will not proceed by the book, but rather that technology has made it possible for it to proceed beyond the book when fairness so demands.

Incredible as it seems, video justice may well create a functional presumption of guilt. And future appellate courts may, like the nation-jury, actually reverse a jury verdict on the grounds that it is clearly against the weight of the best evidence, namely, video evidence. Of course, such legal developments carry both promising and disturbing implications. But the larger point remains, we have entered a new era.

The Holliday video precedent could soon be followed. Recently, a KCOP helicopter videotaped the brutal reality of four men beating Reginald Denny, an innocent Los Angeles truck driver. If and when these civilian thugs are brought to justice, then they too will face the electronic record of their crime. And wherever the venue, video justice is not likely to let stand any local jury's verdict of not guilty.

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