The rule regarding the admission of relevant evidence in the United State is almost universal. The terms of Federal Rule of Evidence 403, for example, are simple and representative of the law as a whole. It sets out a classic balancing test between the probative value of the evidence to be admitted and the prejudicial value that evidence may have. Rule 403 states in part -
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...
But, with each year that balancing act, in the right kind of case, becomes more difficult to apply. As John Schwartz and Katie Zezima point out in With Video Everywhere, Stark Evidence is on Trial, an article fromThursday's NY Times, the sheer ubiquity of video images are subjecting that balancing act to its own trial.
Consider the case from Massachusetts in which the trial judge has ruled that the video capture of a young boy at a gun show shooting himself in the head with an Uzi will be admissible in the prosecution of the organizer of the event. Judge Velis will allow the video but is still considering whether the audio will be heard. The video briefly went viral on the Internet until it was taken down by YouTube as being too grisly.
Quoted in the story, Stephen B. Bright, the president of the Southern Center for Human Rights, said -
"Every law student learns that there is a delicate balancing test to see if the prejudicial impact outweighs the probative value before such evidence is admitted,” but “they quickly learn that in practice the balance always comes out in favor of admitting gruesome crime-scene photos, autopsy pictures, 911 calls, everything."
The rules of evidence should be sufficiently flexible to withstand the test. But can the jurors? Schwartz and Zezima discuss the impact of such evidence on the juror in a case where such evidence is admitted. Some jurors admitted to a feeling of potential post traumatic stress. One way to prepare the jury is to voir dire for the emotional stress such evidence will certainly cause.
Valerie Hans, a law professor at Cornell, said the power of video evidence has to become part of jury selection — to find people who can withstand the emotional battering of the evidence and still do the job before them and not be “dominated by vengeful thoughts.”
“We really ask our jurors to do a lot,” Professor Hans said.