Legal Commentary: Trials on Videotape

Yesterday, I sat through a jury selection (yes, even attorneys occasionally get called for those). This was my first trial experience through "that" side of the box and my impressions probably merit a separate blog entry all on its own. All in due time.

Before the judge began questioning the panel, a court reporter addressed the jurors, asking them to verbalize their responses, instead of nodding heads and using the usual "ahas". As I listened to this painfully familiar speech (it is given at every deposition and trial), I asked myself: "Why aren't the trials videotaped?"

It cannot be for lack of feasible affordable technology - depositions are routinely videotaped. Perhaps, it is a question of money? But I doubt it would cost that much to put a decent camera that would focus on the witnesses and / or the judge and the attorneys.

Now, it is true that there may may be increased costs from this use of technology if the caseload of appellate courts increases. Here is what I mean by that. It has been routinely held that appellate courts do not re-weigh the evidence and rule on witness credibility. The reason for this rule is that the trier of fact is closer to the action then appellate judges reading "cold" transcripts months / years afterwards. But if trials are videotaped, that rationale would seem to disappear. While watching the trial on television is not exactly the same as being there, it should be very damn close to it. So, the appellate courts would be placed in a position to effectively determine if the trier of fact resolved the factual issues correctly. If so, our appellate system would truly become what most lay people now believe it to be - a judicial body that decides if the lower court decided the case correctly.

Also, videotaped trials would be of some use to trial judges and juries. Instead of asking for a readback, the jury would ask for a "playback." That should aid their recollection much more effectively than reading pages of transcript or trying to recall the witness' demeanor. Also, the judge, who effectively sits as a "13th juror" on a new trial motion, would be able to play back the entire trial to help him decide if a new trial is warranted.

Is this a full-proof idea? Probably not. For example, some people (like the author of this blawg) come off really bad on camera. If their credibility were to be judged by that performance, the right to a fair trial might be compromised. But the idea certainly something that, I believe, should be studied.

Comments

I don't think that coming off good on camera is much of an issue since it's an acquired skill just like public speaking and everything else that already goes in to make a decent lawyer. If trials are taped, you'll simply have to get good at it, which isn't that hard for the most part.

Posted by: the_furman | November 18, 2005 at 11:44