Visual Literacy for Lawyers
By Richard K. Sherwin, JD
In courtrooms throughout the United States, the United Kingdom and elsewhere around the world, electronic screens are now playing a growing role in the search for truth and justice under color of law. Trials are increasingly multi-media events, with electronic screens being incorporated into live action inside the courtroom. In an age of smartphones and ubiquitous surveillance cameras, events that once would have gone unrecorded are preserved for posterity and, inevitably, for trial. At the same time, digital graphics and animations take decision makers anywhere and everywhere—into the body in medical malpractice cases, inside complex machinery in patent infringement cases, or on the scene as a virtual eyewitness to murder in a criminal case.
We recently witnessed an example of the latter in the Amanda Knox trial in Italy. Amanda Knox, an American college student studying abroad, was accused (and ultimately convicted) of murdering her roommate. In his closing argument at trial, Perugian prosecutor Giuliano Mignini played a computer-generated simulation that showed an avatar-Amanda Knox killing an avatar-Meredith Kercher. It ended with a gory crime-scene photo of Kercher's body. But was this implying a fantasy—an animated version of the prosecution's theory featuring Amanda Knox as a sex-crazed femme fatale, “Foxy Knoxy,” as the British tabloids called her, a “she-devil,” as many European journalists wrote — is appropriating the prosecutor's phrase? (Sherwin, Oct., 2011.) Good trial lawyers have always been good storytellers. But today, as law migrates to electronic screens inside the courtroom, the stories lawyers tell are increasingly visual. What does it mean to tell a law story visually?
What media logics are involved? What cognitive processes are operating? To what extent are social and cultural heuristics being triggered by rapid associations to visual images – those internalized patterns of cinematic, televisual, and computer-based pop culture that swirl within the popular imagination? How much of image-based judgment is driven by a decision maker's personal associations to memories and feelings – or perhaps fantasies and desires or constructed memories – prompted by potent visual images? Deliberation may be the ideal of legal decision making, but when emotional and other unconscious underpinnings of judgment elude analysis, the adversarial process of critique and counterargument weakens. Consider, for example, a closing argument video in a lawsuit against Price Waterhouse, which at the time of trial was the largest accounting firm in the world. The video begins with documentary shots of the largest ocean liner of its time, the reputedly unsinkable Titanic, which did indeed sink. The video then seamlessly shifts to clips from “A Night to Remember,” the 1958 feature film about the Titanic in which indifferent officers and a preoccupied captain appear to recklessly disregard a telegram warning about the presence of icebergs in the ship's vicinity. The plaintiff's visual summation then cross-cuts those clips with a stream of reenactments among other scenes describing how the defendant “sank” the plaintiff's takeover deal by carelessly failing to spot faulty loan practices by the bank the plaintiff acquired. The upshot is clear: Being the largest in the world is no safeguard against negligence. As this example suggests, the invisible codes and content of modern visual storytelling, from television dramas and news shows to advertisements, feature films and social media online, have infiltrated the courtroom. Fact and fiction, information and entertainment work hand in hand in the production of legal truth (Sherwin, Feigenson, & Spiesel, 2006; Sherwin, 2000).
Other complexities together with novel challenges abound. Consider, for example, the increasing use of two-way video-conferencing in lieu of live testifying inside the courtroom. Does this kind of virtual testimony fulfill the demands of the Sixth Amendment's confrontation clause (generally requiring “face to face” confrontation between the accuser and the accused)? To what extent does “virtual” testifying differ from the live presence of face-to-face confrontation? In a recent federal case, the defendants, the jury, and the judge were able to see the witnesses on a screen as they testified in real time from Australia. Likewise, the witnesses were able to see the defendants as the witnesses' direct and cross-examination unfolded in court. Nevertheless, a majority of the appellate court decided that this procedure fell short of what the Sixth Amendment required. But by what measure? What does the camera fail to show that live testimony would reveal? The answer remains unclear, and the courts currently are in disarray on the issue (Sherwin, 2012/13; Sherwin, 2011).
Or consider the insistent problem of naïve realism – the common sense predisposition to look at (or rather “through”) the screen as if it were a window onto reality rather than the visual construction that it is. This phenomenon played out recently before the Supreme Court in a case involving a high-speed chase in which police forced the speeding motorist off the road. The driver consequently became a quadriplegic and sued the police for using excessive force. The legal issue was whether lethal force was justified under the circumstances. The police video of the chase was the crux of the controversy. But what did it show? At oral argument, many of the justices claimed that the images “speak for themselves.” But how could that be? We all know that a camera begins and ends at a particular point in time, and that it occupies a particular place that provides its own particular (and partial) view onto the reality it shows. Does it matter, for instance, that we do not see the police cars that blocked other drivers from getting onto the road where the chase was taking place? Does it matter that we don't hear the police sirens warning cars to pull off the road thus lessening the threat to other drivers? Does it matter that the traffic lights that we see might not have been red when the speeding car reached them?
Justice Scalia and the supporting majority of justices decided no reasonable viewer could conclude anything else but that the police used reasonable force in the face of such a dangerous situation. But when Justice Scalia said, if you don't believe me watch the video for yourself, a researcher at Yale Law School took Scalia up on the invitation (Kahan, Hoffman, & Braman, 2009). He showed the video to a diverse sample of approximately 1,350 Americans. He then asked them to say what they saw, and give their views on the issues that the Court had identified as dispositive. A majority agreed with the majority on the Supreme Court. But members of various sub-communities did not. African Americans, low-income workers, and residents of the Northeast, for example, tended to form more pro-plaintiff views of the facts than did the Court. So did individuals who characterized themselves as liberals and Democrats. In other words, what the study showed is that “seeing is believing” but what we see depends, to a significant extent, on who we are, where we live, how much we earn, what education we've had, what our political beliefs are, and so on. By saying there was only one reasonable way to view the police videotape in the Scott case, the Supreme Court effectively silenced significant cross-sections of the community.
When lawyers and judges lack visual literacy the truth-testing process of adversarial justice can fail in spectacular ways. We saw this in the criminal case against the officers who beat Rodney King. On March 2, 1991, George Holliday fortuitously filmed a group of Los Angeles police officers surrounding and furiously beating and occasionally stomping on King. We now know that this violent encounter followed a high-speed chase on Interstate 210, in San Fernando Valley, California. Holliday's shaky images would soon spread, via the news media, around the U.S. and the world. Four of the officers involved would eventually be indicted for assault with a dangerous weapon. The state trial resulted in an acquittal that, in turn, sparked one of the worst race riots in American history, leaving 53 people dead and over $1 billion in damage. The trial crucially depended on visual evidence. As the prosecutor in the case repeatedly told the jurors in his summation, “You have the videotape. Watch it, ladies and gentlemen. What more do we need?” And watch it they did. Yet, the state lost the case. Given the stark images of violence available to the prosecution how did this happen?
The defense theory can be boiled down to a very simple claim: “If the officers did what they were trained to do how can you find them guilty of a crime?” So what were they trained to do? They were trained in the controlled ‘escalation' and ‘de-escalation' of force. They were trained to protect themselves from violence, and to restrain those who resist arrest. And in this situation, even after two Taser jolts, at 10,000 volts each, King was still rising up off the ground. At one point he even charged one of the officers. So, of course, he needed to be subdued. If King had followed orders to lie prone on the ground, the defense theory continues, none of this would have happened. And then the defense showed its theory through Holliday's images.
By digitalizing the analogue tape the defense was able to slow down the images. This not only allowed them to remove the sight and sound of violence in the impact of multiple police blows. It also gave the defense the freedom to re-choreograph the images. What the jury now saw was that every time Rodney King rose up off the ground the police batons came down, and every time King laid prone the police batons rose up. In short, the jurors saw “causation”: by rising up off the ground, King caused the officers to beat him. Or, as several jurors put it after their verdict of acquittal, King was in charge. Visual meaning is highly malleable. As photojournalists know, captions can turn a photo's intended meaning on its head. So, too, legal advocates need to know that if you do not provide a context of meaning, if you do not wrap a sequence of images in a narrative of your own, you will leave open the possibility that their meaning will be captured by your adversary. In the King controversy, the defense's visual strategy was never even spotted by the prosecutor much less cross-examined by him. His lack of visual literacy may well have cost him the case. What remains of the past, and what among the past's remains are more reflective of fantasy and desire than historic reality? We need to know more about what visual images are actually doing inside the courtroom and how they are doing it, using what visual codes, producing what reality effects, based on what emotional and other unconscious associations? The judgments we make are better judgments when we know more about how and why we make them. In order to decode visual images, lawyers need to be visually literate. And in order to fulfill their gatekeeping function, judges need to understand with greater sophistication what makes visual evidence reliable or unduly prejudicial. That's why I have been urging that visual literacy skills be taken more seriously in law school. Social scientists can help jurists and educators deal with this new challenge by adding to our knowledge of how visual meaning making works, particularly by laying out in closer detail its efficacies and pitfalls inside the courtroom. The search for truth and justice in contemporary, intermediated legal practice requires no less.
Kahan, D., Hoffman, D., & Braman, D. (2009). Whose eyes are you going to believe? Scott v. Harris and the perils of cognitive illiberalism. Harvard Law Review , 122 , 837–906.
Sherwin, R. K. (2000). When law goes pop: The vanishing line between law and popular culture. Chicago: University of Chicago Press.
Sherwin, R. K. (2011, October). The digital trial. Project Syndicate , http://www.project-syndicate.org/commentary/the-digital-trial .
Sherwin, R. K. (2011). Visualizing law in the age of the digital baroque: Arabesques & entanglements. Routledge: New York.
Sherwin, R. K. (2012/13). Visual jurisprudence. New York Law School Law Review, 57 , 137–65.
Sherwin, R., Feigenson, N., & Spiesel, C. (2006). Law in the digital age: How visual communication technologies are transforming the practice, theory, and teaching of law. Boston University Journal of Science and Technology Law, 12 , 227–70.