Violent Videos: Criminal Defense in a Digital Age

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 footage, and cell phone video footage 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 outsized 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 that 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 advocate zealously 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 practices have been reshaped dramatically by its presence. Finally, this Article suggests strategies to address the added toll of digital content on defense attorneys to ensure that defendants receive effective representation in the digital age.

Keywords: public defense, criminal practice, body-worn camera, video evidence, secondary trauma, implicit racial bias

JEL Classification: K14