Don't slow me down - CCTV in murder cases

In this short article, Peter Doyle QC discusses the issues surrounding the use of CCTV in murder cases, in the light of a recent study carried out in the USA.
DON'T SLOW ME DOWN
Such might be the plea of many a defendant whose actions are caught on camera given the findings of a recent USA study, that they have a greater chance of being convicted of first degree murder if their actions caught on camera are played back to a jury in slow motion. According to the study published in the Proceedings of the National Academy of Sciences, viewing a killing only in slow motion resulted in a threefold increase in the risk of being convicted.
In a world of CCTV, police body cameras and smart phone recordings is there a lesson for us to learn here? In a case where identification and actions at the scene are not in issue but intent is, could objection be taken to slowing down the footage because of a risk of distorting the evidence and causing unfairness?
According to the study, US courts often permit playing such footage in slow motion to assist a jury to decide what happened and why within an often chaotic event.
Given that intent was a frequent issue in murder trials researchers carried out a number of tests to see what if any impact slowing down a replay had on the observers who acted as mock jurors.
Some observers were played footage of the fatal shooting of a shop assistant in the course of an attempted robbery in real time and others were shown the same footage in slow motion. Those in the second group had a fourfold tendency to begin their deliberations thinking that the defendant was guilty.
The study concluded that the slow motion version gave a false impression that the shooter had more time to think and deliberate before firing the fatal shot and this impression fed into a feeling that he must therefore have formed the required intent.
The dilemma is to be found in the fact that although a slow motion replay can potentially present a better version of physical action and how it unfolded, it can also give a false perception of the defendant’s state of mind at the time.
The first may prove relevant and beneficial but the second may distort the evidence resulting in an unreliable inference as to what the defendant must have been thinking at the time.
The study found that when compared with mock jurors who only saw the footage in real time the odds of a unanimous guilty verdict were 3.42 times greater than those in the second group.
Did it make any difference that the footage had a time display so that the duration of the scene was known? Worryingly the study found that this supposed aid to reality did not eliminate the subjective belief that the defendant had more time to think than was in fact the case.
Mock jurors who saw the footage in both real time and in slow motion were still found 1.55 times more likely to return a verdict of guilty than if they had only seen the footage in real time.
In 2007, long before the study, John Lewis was convicted in the USA of the first-degree murder of a police officer during an armed robbery. Key to the verdict appeared to have been the slow motion playing to the jury of a surveillance video that persuaded them that the defendant’s actions were premeditated and not as he claimed reflexive. He was sentenced to death.
On appeal the court rejected the defence submission that the footage played in this way created a false impression because the court concluded that the jury not only saw the footage in real time but also had the assistance of a time display. Lewis remains on death row.
Post R v Jogee a defendant charged with murder as a secondary party can only be convicted if he had the same intent or common purpose as the principal. No longer is foreseeability of itself enough to secure his conviction.
However, the Supreme Court far from dismissing foreseeability as irrelevant emphasised that it was important evidence that may assist a jury to decide what if any intention the defendant had.
It may therefore follow that the longer a defendant contemplates the scene the more likely a jury will or may conclude that his actions must have been pursuant to a common purpose or shared intent with the principal.
The question that the study poses is whether a defendant accused of being a secondary party to murder where his presence and actions at the scene are admitted is prejudiced or may be prejudiced if his actions are (i) only played in slow motion to a jury or (ii) played in both real time and in slow motion with a time display?
In the absence of expert evidence or an unlikely agreement that the study be placed before the court, an objection to either course may prove at best problematic.
However, even without expert evidence or any such agreement a case may emerge which on its facts could support an objection based on the application of simple commonsense.
If there is no dispute as to presence at the scene nor any as to the actions taken, then the only issue for the jury is intent. A respectable submission might in an appropriate case be advanced that to play the event in slow motion is irrelevant to that issue and given the risk that it may leave a lasting but false impression that the defendant had a longer time to form the necessary intent than was the case could result in a distortion of the evidence and unfairness.
The suggested remedy afforded by a timer and playing the footage in real time may not dispel the subliminal impact on the mind of a jury resulting in a false perception that there was far longer to think than was the case. Such thoughts are unlikely to be cured by any judicial direction.