Thursday, August 6, 2020
This is a post by the Hon. Pierre H. Bergeron, a judge on the Ohio First District Court of Appeals. Judge Bergeron will be joining us as a regular blogger.
We live in an era of instant replay. Every sports fan, when witnessing a close play in a game, reflexively thinks, “I wonder what the replay will show?” In our instant replay culture, with video coverage of almost every move we make, this begs the question of what standard of review should appellate courts use when assessing video evidence. In days gone by, several witnesses might have testified at trial as to what they saw when the crime occurred, and appellate courts rightly deferred to the jury or trial judge in their assessment of credibility of these witnesses. But now, in many cases, we have video evidence of the crime (or other critical events) that we can watch. As video evidence becomes an almost indispensable element of the modern trial, what does that mean for the modern appeal?
Some appellate courts apply a deferential standard of review to the trial court’s findings, rooted in how appellate courts historically have reviewed evidentiary matters, whereas other courts gravitate towards de novo review, as a pragmatic response to the power of video evidence. I would submit, though, that, more often than not, many courts do not squarely acknowledge the standard of review on this point and probably (maybe reflexively) default to a Potter Stewart-esque “know it when you see it” perspective. The debate on this point is real and legitimate but it is important to have it in the open. Our appellate courts should be asking the question of how should we review video evidence.
Courts applying deferential review generally do so on grounds that largely mimic accepted justifications for deferential review of a trial court’s credibility and factual determinations generally. Because video-recorded evidence may be susceptible to varying interpretations, reviewing courts typically highlight the trial court’s unique vantage point for resolving these conflicts. Courts also justify deferential review because it preserves a trial court’s role within the judicial system as the factfinder. Finally, appellate courts remain leery about the danger of making litigants essentially retry issues on appeal, needlessly squandering judicial time and resources. State v. S.S., 162 A.3d 1058, 1060 (N.J. 2017); Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014).
By contrast, when selecting de novo review over a more deferential approach, appellate courts begin their analysis with a cautionary tale about providing deference to a trial court’s factual determinations. Trailing closely behind this point is usually a caveat: when the appellate court sits in a similar position to review the content or significance of video evidence as the trial court below, the appellate court may independently evaluate that evidence under de novo review. Now what appellate courts deem a “similar” position is up for debate, but ordinarily courts consider whether the trial court primarily relied upon the video evidence, whether controlling facts contained within the video are in dispute, and the thoroughness of the trial court’s factual findings (some cases without factual findings pave the way for de novo review). See State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008).
I know there are at least a couple of cases during my tenure as an appellate judge when the video evidence swayed me from affirm to reverse (or vice versa). In these instances, the power of the video evidence was simply impossible to ignore, regardless of what standard of review governed. Even the staunchest supporters of deferential review would probably have allowed for such meddling with the trial results when the video paints a decisive picture. Powerful policy justifications certainly animate both sides of this debate. And, overall, there is some need for flexibility here. The important take-away is that, whatever side of this debate you prefer, courts need to be candid about this standard of review point. After all, the standard of review in a lot of these cases can prove dispositive. The parties need to understand what they have to work with, and the trial courts likewise need to internalize what is being asked of them (for example, if the appellate court faults the trial court for a lack of findings). I look forward to seeing this debate unfold, and to potential new and innovative ways to approach this evidence that is becoming prevalent in the modern appeal.