Excerpted From: Nora G. McNeil, Perceptual and Cognitive Biases in the Uptake of Police Body-worn Camera Footage: Implications and Suggestions for Introduction of Video Evidence at Trial, 41 Quinnipiac Law Review 499 (2023) (278 Footnotes) (Full Document)


NoraGMcNeilPicture this: a scene in a film begins with a panoramic shot of an open, barren vista. Dry, scraggly bushes dot a mesa in the background. A closer shot shows three cowboys standing among headstones in a graveyard. One cowboy slowly walks away from the others to form a triangle. An even closer shot shows that the cowboy places a stone on the ground and looks up abruptly. The film's score intensifies as the camera shifts between close-up shots of the three cowboys: their dusty boots, hands on their holsters, and faces filled with anticipation for the climactic final duel.

For the film The Good, the Bad and the Ugly, world-renowned director Sergio Leone and his team of cinematographers artfully manipulated long shots, close-ups, and a variety of other filming techniques to elicit a variety of emotions in their audience. Telephoto close-ups, which flatten the image and focus the view on one of the characters, signal importance and tension. With only the face of the character visible, the close-ups also heighten suspense and invite the viewer to imagine what is occurring outside the frame. The precise attention to editing, sound, and music build-up also can create drama. Leone employed these techniques to create his “western masterpiece” because he knew what all filmmakers know: the shot matters. Close-ups, long shots, camera angles, and lighting, as well as movement, montage, dialogue, lighting, score, and more, all combine to convey the film's effects and meanings.

Characteristics of film footage instill connection, bewilderment, urgency, suspense, and more to the viewers in the theater, their homes, or wherever else they watch the movie. Viewers of film feel these emotions emanating from the movie's characters and may feel the emotions themselves in response to the events in the movie. Film viewers also may critically analyze the events of the movie. They may wonder what will happen next, why a character acted in a certain way, or whether a character's actions were reasonable.

The underlying psychological and sensory processes that encode cognitive and emotional responses to, say, a documentary film, traditional drama, or western adventure are the same processes audiences use to perceive and understand film in other settings, such as a courtroom. Lawyers have presented film and, later, video in courtrooms since the 1920s, but video evidence has become increasingly common as hand-held video cameras and smartphone cameras have proliferated. Specifically, footage from police body-worn cameras (BWC [body-worn cameras]s) has recently become more prevalent in court as more and more law enforcement agencies have adopted the regular use of BWC [body-worn cameras]s.

BWC [body-worn cameras]s are capable of creating images that are markedly different from images received by the unaided human eye or images captured using other types of cameras, such as smartphone cameras or those used by news and documentary filmmakers. BWC [body-worn cameras]s usually attach to the chest of an officer's uniform so that they can capture events from the officer's perspective. Due to the fact that the BWC [body-worn cameras]-equipped officer is often in motion and physically quite close to the person with whom he is interacting, video may include sudden movements and motion blur that may give viewers a distorted sense of the depicted events. These cameras use wide-angle, “fisheye” lenses that produce images different from what standard lenses produce or what the unaided human eye sees. This type of lens has the effect of making objects and events in the center of the field seem closer than they really are, while objects and events on the periphery can seem further away. Other factors, such as ambient sound and lighting, may also make BWC [body-worn cameras] video different from the video produced by other sorts of cameras. All these features can affect how judges and jurors interpret what they think they are seeing and hearing in the video, which shapes the meanings that they take away from their viewing.

This Comment focuses on the technical ways in which BWC [body-worn cameras] video fails to provide objective, dispositive, “speaks-for-itself” proof. Specifically, this Comment addresses certain features inherent in BWC [body-worn cameras]s and video that can affect interpretations of video imagery, and considers how footage can lead viewers to make inaccurate factual judgments about the events the video depicts.

Part II reviews the perceptual, cognitive, and emotional biases that the presentation of BWC [body-worn cameras] footage at trial is most likely to elicit. Many people think (or hope) that BWC [body-worn cameras] video is objective evidence that provides fact finders with more reliable and complete foundation for judgments than would testimony, which is often imperfect. Judges and jurors, however, approach video footage with their own preconceptions that can bias their perceptions and judgments. Therefore, biases induced by BWC [body-worn cameras] video preclude entirely objective or conclusive proof of the depicted events. Next, Part III explores solutions to reduce such problems, including judicial instructions and the framing of video evidence. Finally, Part IV summarizes the key biases and solutions derieved from the research.

[. . .]

Every video is a product of the camera that filmed it and reflects, to some extent, the distinctive qualities of that camera. As discussed, BWC [body-worn cameras] videos, an increasingly common and important type of courtroom evidence, depict events in ways that can bias viewers' perceptions and interpretations.

The consequences identified in this Comment have been deeply investigated by researchers. Camera perspective bias, due to the location of the BWC [body-worn cameras] on the officer's uniform, can lead viewers to overattribute causal responsibility to the person with whom the officer is interacting and to under attribute intentionality to the officer. Motion blur, due to the often-frenetic movement of the BWC [body-worn cameras] during an interaction, can exaggerate the volatility and apparent danger of the situation. Distance distortion, caused by the BWC [body-worn cameras]'s wide-angle lens, can make the confronted person appear closer and more threatening to the officer than he or she actually was. These features may hinder a legal fact finder's ability to accurately understand the recorded events or unreasonably bias the fact finder's interpretations of BWC [body-worn cameras] video evidence and disadvantage civilian-suspect.

Given the abundance and accessibility of the scholarship, there are tested tools available to assist in achieving fairness in the law. Jury instructions and expert testimony could increase awareness of the issues and educate jurors and judges about the potential biases and their impacts on judgments. Still, there is room for improvement. Continuous research and reporting on the psychological mechanisms that cause these biases could help drafters of instructions and experts better explain the effects of BWC [body-worn cameras] videos to an audience (or jury). Similarly, continuous and honest reporting by legal scholars can influence stakeholders, policymakers, and judicial authorities to balance the scales. These research developments and the information captured, if utilized, will lead to more accurate, less biased factfinding surrounding this increasingly important type of evidence.

J.D. 2023, Quinnipiac University School of Law; B.A. 2016, University of Connecticut.