Violent Videos: Criminal Defense in a Digital Age

• Publication year: 2021

Violent Videos: Criminal Defense in a Digital Age

Amy Kimpel
University of Alabama School of Law, akimpel@law.ua.edu

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VIOLENT VIDEOS: CRIMINAL DEFENSE IN A DIGITAL AGE

Amy F. Kimpel^*

Abstract

Digital video evidence has exploded into criminal practice with far-reaching consequences for criminal defendants, their attorneys, and the criminal legal system as a whole. Defense attorneys now receive police body-worn camera footage, surveillance video footage, and cell phone video footage in discovery in even the most routine criminal cases. This Article explores the impact on defense attorneys of reviewing this avalanche of digital evidence. The author posits that the outsized role of digital evidence in criminal cases is taking a toll on defense attorneys in general—and public defenders in particular—resulting in increased burnout and secondary trauma.

This Article includes results from a recent survey by the author that indicate that public defenders are increasingly exposed to disturbing digital content—videos capturing violence by clients, police, and others. The survey further suggests that these images are impactful, increasing the emotional workload of defense attorneys and exacerbating burnout. Videos with violent or emotional content can also strain the attorney-client relationship by collapsing the distance between attorney, client, and crime. Implicit racial bias can also color what we see when viewing violent videos. These trends raise new concerns about defense attorneys' abilities to advocate zealously for their clients and meet constitutional standards, particularly for public defenders whose caseloads require more

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frequent interaction with digital video evidence and whose day-to-day practices have been reshaped dramatically by its presence. Finally, this Article suggests strategies to address the added toll of digital content on defense attorneys to ensure that defendants receive effective representation in the digital age.

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CONTENTS

Introduction................................................................................308

I. The Growth of Digital Content.........................................313

A. Mental Health Impact of Graphic Content.........................315
B. Police BWCs and Viral Videos of Police Violence.............321
C. Public Defender Survey Results..........................................327

II. Impact on Attorney Competence........................................338

A. Background Mental Health Concerns for Public Defenders ................................................................................................339
B. Impact of Digital Content on Individual Attorneys............344
C. Impact on Offices and Institutions......................................348

III. Tension in the Attorney-Client Relationship.................352

A. Identification with the Victim.............................................. 353
B. Dangers of Perspective Bias...............................................357
C. Voyeurism and the Attorney-Client Relationship...............368

IV. Strategies to Address Digital Content............................370

A. Change Criminal Defense Culture ..................................... 371
B. Educate and Train Attorneys .............................................. 378
C. Re-Evaluate Caseload Caps...............................................381

Conclusion...................................................................................385

Appendix A.....................................................................................386

Appendix B.....................................................................................404

Appendix C.....................................................................................414

Appendix D.....................................................................................421

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Introduction

• A public defender watches body-worn camera footage of her client being punched in the face, hit with a billy club, pulled out of a bathroom stall naked, and kicked while on the ground. His cries for help are captured in the recording.
• An attorney reviews surveillance footage of his client performing oral sex on a woman passed out on the sidewalk. Passersby do not stop to see what is happening but merely walk on.
• A public defender reviews police dash camera footage of her client's apprehension and arrest. Her client runs from the police, and they run him over with their police cruiser.
• A criminal defense attorney confides that he has not been able to have sex with his wife since reviewing the child pornography his client is accused of possessing. It has been a few weeks.¹

Digital media permeates both our world and criminal discovery practice. Fifty years ago, a public defender would typically receive a police report and written witness statements in discovery—perhaps photographs of a crime scene or a staticky tape recording of a post-Miranda confession.² Nowadays, public defenders routinely

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receive police body-worn camera (BWC) footage, surveillance camera footage, and cell phone-recorded video footage in addition to traditional reports and other paper discovery.³ No one has systematically explored the effect of this shift on individual criminal defense attorneys or public defender offices.⁴ This Article explores the impact this proliferation of video evidence is having on criminal defense practice, particularly on attorneys' mental health, their relationships with their clients, and their ability to be zealous advocates.⁵

The influx of digital media presents obvious benefits to public defenders and criminal defendants⁶ —most importantly, digital evidence's ability to exonerate and prove a defendant's innocence.⁷

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This Article should not be read as an argument against the use of police BWC footage or video evidence more generally⁸ —video evidence can make our system more accurate and police more accountable. Rather, the purpose of this Article is to document and address some of the challenges presented to public defenders by this technological shift in criminal practice.

Fairness in the American criminal legal system depends on competent defense counsel for the indigent.⁹ Being a criminal defense attorney has always been challenging.¹⁰ But being a criminal defense attorney or public defender has become more difficult in the digital era.¹¹ As BWC footage, surveillance video, and other "eyewitness media"¹² such as cell phone video play an increasingly large role in criminal discovery, public defenders must review larger volumes of digital content. Today, 96% of all Americans own a cell phone, and 96% of Americans aged eighteen to twenty-nine years old

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own a smart phone¹³ —digital surveillance and the potential for digital evidence abound. This presents new ethical challenges and puts defenders at risk for mental health conditions related to secondary trauma.¹⁴ If we do not address these new challenges, we threaten to further erode a cornerstone of the criminal legal system: the right to competent counsel.¹⁵

This Article proceeds in four parts. Part I discusses the impact of the increased presence of digital media on both our culture and the criminal legal system. This includes the expansion of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) definition of post-traumatic stress disorder (PTSD) to allow for a diagnosis based on contact with traumatic digital content, the proliferation of police BWCs, and the parallel phenomenon of viral videos of police violence.¹⁶ This Part also contains a discussion of a survey I conducted of over 200 current and former public defenders working in forty states that explores the impact of the increased presence of digital media in criminal defense practice.¹⁷ The survey results suggest that public defenders are facing new ethical, psychological, and institutional challenges because of the increased presence of digital media in their case work.

Part II discusses the impact of this increase in digital content on the mental health of public defenders. Videos containing violence inflicted on the client by the police or others can be traumatizing or

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demoralizing and cause burnout. Without mitigating interventions, traumatic video evidence could threaten attorney competence.

Part III inventories some of the negative impacts of digital content on the attorney-client relationship. Videos shot from the victim's perspective may cause the attorney to overly identify with the victim and create distance from the client—or worse, moral repugnance or revulsion—making it harder to effectively advocate for the client. Attorneys will also view videos differently based on their own characteristics, lived experiences, and biases. When attorneys are of a different race, class, or gender from their clients, they may have a difficult time watching the video with an open mind rather than relying on heuristics or stereotypes—a pressing concern given that public defender clients are disproportionately people of color though defenders are overwhelmingly white.¹⁸ These dynamics can undermine zealous representation.

Finally, Part IV includes proposals and strategies for addressing the new challenges presented by the increasing ubiquity of digital video in criminal defense practice. Some of these proposals draw from lessons learned in the context of war journalism and in lawsuits brought by content moderators against Facebook and Microsoft.¹⁹ others draw from public defender literature about implicit racial bias.²⁰ Caseload caps in public defender practice must also be recalibrated to reckon with the time-consuming work of reviewing video evidence.

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This Article looks at the impact of digital media on criminal defense attorneys and the ways in which both individual defense attorneys and public defender offices can adjust to respond effectively in the face of these new trends. Examining...