By Dr. Ken Broda Bahm:
Cameras don’t simply record what is in front of the lens. Every movie director knows that the camera highlights, frames, hides, emphasizes and distorts. The Francis Ford Coppola’s among them know that they’re not simply filming, they’re ‘painting with light’ using the film as a canvas. The legal uses of cameras – interrogations, depositions, site visits — are a bit more prosaic than that, but they’re not immune to the camera’s lack of neutrality. In a legal setting, the consequences of mistaking the recorded image for unfiltered reality can be greater. And the practical need to check out the camera’s influence is great as well.
A long line of research led by Ohio University psychology professor Daniel G. Lassiter has documented the camera’s profound bias in interrogation settings. Studies over the past decade (see Lassiter et al., 2010) have shown that a “camera perspective bias” exerts a strong influence on the credibility of a confession. One could easily apply the messages in these research results to the settings where video recordings are most likely to be used in a civil setting: designated deposition testimony. In those circumstances, jurors are asked to assess the believability of a witness based on what the camera shows them. For that reason, it is a good practice when taking or defending depositions to take a close look at the setup and the framing to make sure the witness isn’t intentionally or unintentionally set up or distorted.
The Camera Perspective Bias
A recent opinion piece in the New York Times provides a good introduction to the research on the camera’s influence in video-recorded interrogations. In the view of the writer, UCLA law professor Jennifer Mnookin, the video recording “may in fact be too vivid and persuasive,” making it hard to doubt the testimony or place it in context. Sharing some of Dr. Lassiter’s research results, she reports on one study in which the same interrogation is viewed by participants, with some seeing just the defendant and others seeing the broader view that includes the interrogator as well. When the view is limited to the defendant alone, the confession is significantly more likely to be seen as accurate and truthful, and significantly less likely to be considered coercive. This effect holds up even when the interrogator is heard on the recording explicitly threatening the defendant.
I am not aware of comparable research being done on deposition video, but it isn’t a stretch to believe that the same dynamic may be at work: The camera’s blindered focus on the deponent alone could serve to de-emphasize the questioner and effectively blind viewers to the circumstances of the testimony. A questioner’s role in putting words in the witness’s mouth, for example, might be less salient when the deponent alone is on the screen. Specific research should focus on that factor, as well as other aspects of the recording like angle, framing, lighting, and background. But for now, it is safe to say that litigators are on solid ground assuming that the conditions of the recording are exerting at least some influence on the resulting credibility.
We have noted this effect ourselves at times when conducting mock trials. When we don’t have access to video-recordings of all the witnesses we want to test, we’ll often mock up a witness or two by getting an actor to portray that testimony in a brief video recording. But the problem is that we have state of the art recording equipment and the clips we invent can end up looking far better then the real deposition clips: better lit, better framed, and higher definition. That can have a measurable effect when those witnesses do better because they look better. In response, we have needed to ask Don Yost, our videographer, to dial it down a bit on the production value to avoid an unrealistic advantage for the mocked-up witnesses.
Recommendations
Let me end with a couple of ideas for litigators conducting and defending video-recorded depositions.
Check the Setup
One would think that things like camera placement, framing, angle, lighting, and backdrop would all be fairly standard. But in practice, they aren’t. Most deposition recordings end up okay, but over the years, I’ve seen all manner of questionable practices: cameras angled up (making the witness look powerful), or down (diminutive), lighting coming down from above (conveying a sinister look), or aimed at the witness’s eyes (making them blink like a nervous rabbit). Before you start a deposition, it is a good practice to sit in the witness chair and then look through the viewfinder yourself in order to see what you’re getting.
Put the Attorney in the Picture
I don’t know if there is a precedent for this, though I have heard secondhand that a very well-known Texas plaintiff’s attorney has tried the patience of defense counsel and witnesses so many times, that it is now common for a second camera to be aimed at him when he is taking a deposition. That is done, I’ve heard, in order to prevent the most extreme behavior and to support motions for sanctions. But based on Lassiter’s research, it seems like that practice of dual recording could be justified even in less abusive situations. A split screen deposition video showing both the questioner and the deponent would provide viewers with a broader perspective on the situation, making them more likely to appreciate the circumstances and the potential for subtle manipulation brought by the questioner.
There are still places in the country where video-recorded depositions are relatively uncommon. But as the persuasive benefits of the recording are more broadly understood, and as costs come down, that is likely to change fast. And as recordings become more common, they’re likely to be used more in court with designations serving as a way of reducing costs by allowing distant witnesses to stay home. That means that civil litigators should start applying the same scrutiny to deposition video that lawyers on the criminal side have been applying to interrogation video. Whether it is a criminal confession or simply a civil concession, seeing it can mean believing it.
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Other Posts on the Power of Images:
- Use Mental Images to Sway Moral Judgment
- Show, Don’t Just Tell: Part 4, Centrality (PersuasionStrategies Visual Persuasion Study)
- Careful, Your Animation May Be Promoting Hindsight
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Cite: Lassiter, G. D., Ware, L. J., Lindberg, M. J., & Ratcliff, J. J. (2010). Videotaping custodial interrogations: Toward a scientifically based policy. In Lassiter, G. Daniel (Ed); Meissner, Christian A. (Ed), (2010). Police interrogations and false confessions: Current research, practice, and policy recommendations. Decade of behavior/Science conference grant., (pp. 143-160). Washington, DC, US: American Psychological Association, xviii, 250 pp. doi: 10.1037/12085-009
Photo credit: Jsawkins, Flickr Creative Commons