One thing lawyers learn about juries is that they are often irrational. Jurors place a great deal of faith in eyewitness testimony that is often unreliable; conversely, jurors often disregard circumstantial evidence like DNA because it is, well, circumstantial.
In 2014 we had the debacle of the Ray Rice domestic violence case, where NFL Commissioner Roger Goodell botched the investigation of the Rice’s assault on his then-fiancée (he interviewed the two of them together, something no police investigator would do), then suspended Rice for two games. This was greeted by general derision, after which Goodell issued a policy that the proper suspension was 6 games. THEN the video of the assault came out, and suddenly the proper suspension was indefinite (it is two years and counting).
The video added NO NEW INFORMATION about the Rice assault; he had been perfectly candid about what happened. He punched her, she went down like a sack of wet cement, and he dragged her out of the elevator. Yet because Goodell now actually saw what happened, he decided a greater punishment was called for, a punishment that far exceeded the policy he himself established.
The tyranny of the video tape has once again reared its ugly head, not once but twice. Two years ago Oklahoma player Joe Mixon punched a woman and was suspended for a season. Now the video of the assault has come out, and Oklahoma coach Bob Stoops held a press conference and said in retrospect he didn’t think the one season suspension was enough. Stoops presumably saw the video when the suspension was handed down, but he was reacting to the new outrage the video had engendered.
But again, the video provided NO NEW INFORMATION. Everyone knew Mixon had punched a woman; seeing the punch is irrelevant. I don’t want to argue about the adequacy of the punishment, as that is the equivalent of debating the number of angels that can dance on the head of a pin. But, as with Rice, the punishment that was meted out shouldn’t be re-visited just because we have visual confirmation of what we already knew.
Video is also a factor concerning the Patriots signing of cut Arizona cardinal receiver Michael Floyd. Floyd had a DUI and was immediately axed by the Cardinals, and was immediately signed by the Patriots. Okay, the Patriots used to have a player on their team who is now serving time for murder, so a DUI seems like no big deal. The immediate reaction was sort of praise for the patriots to make a business decision to bring in a slightly tarnished player who can help them despite off-the-field improprieties.
But the video was released of Floyd being totally wasted when he was pulled over, and suddenly people were second guessing the move by the Patriots, and Belichick admitted he hadn’t known what Floyd’s BAC was at the time of his arrest. But once again, the video added nothing. Reports were that Floyd’s blood alcohol level was .217, over two and a half times the limit for being intoxicated, 0.08. Did people expect him to be slightly slurring his words, like Foster Brooks (okay, that reference is lost on anyone under 50; sorry)? With a BAC of .217, you know he was very drunk; why should seeing how drunk he was change anyone’s perception?
We seem to be moving to a paradigm where if there isn’t video, it didn’t happen, and if there is video, that makes it worse that we imagined (because apparently people have pretty weak imaginations). Decisions about issues like domestic violence or driving while intoxicated should be based on rational evaluation of evidence, not the visceral reaction to graphic footage. A woman who is beaten by an NFL player doesn’t deserve less justice because the incident happened when no cell phones were around.
The irrationality of jurors is well known, and that is why there are rules of evidence that prevent the presentation of “evidence” that would confuse them. But when it comes to the court of public opinion, there are no rules. All we can do is hope that Commissioners and Coaches display more rationality than the great unwashed mob.
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