Title

Violent Videos: Criminal Defense in a Digital Age

Document Type

Working Paper

Publication Date

9-28-2020

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law & Society eJournals; LSN Subject Matter eJournals; Criminal Justice Research Network; Political Science Network

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, and cell phone video 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 out sized 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 which 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 zealously advocate for their clients and meet constitutional standards — particularly for public defenders whose caseloads require more frequent interaction with digital video evidence and whose day to day practice has been reshaped dramatically by its presence. Finally, this article suggests strategies to address the added toll of digital content on defense attorneys to try to ensure that defendants receive effective representation in the digital age.

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