Source of article Overland Consulting Blog.

Several recent high-profile trials, including Rod Blagojevich’s corruption trial and the murder trial of Oakland police officer Johannes Mehserle, have featured video- and audio-taped evidence of the alleged crimes. In the case of former Illinois governor Blagojevich, an audio tape of a telephone conversation appears to record the then-governor discussing ways to profit financially from his power to name the successor to Barak Obama’s vacant Senate seat. In the case of Mehserle, cell phone video footage shows the officer draw his sidearm and shoot Oscar Grant, who was lying face-down on a train platform at the time of the shooting. 

But in both of these cases, despite what would seem to be clear factual evidence of the defendants’ guilt, juries found the defendants guilty of only lesser crimes. Blagojevich was convicted on only one count of lying to federal agents, and the jury could not reach a unanimous verdict on the other twenty-three, more serious charges. Mehserle was convicted of involuntary manslaughter, but was found not guilty of second-degree murder and voluntary manslaughter. 

These cases are stark reminders that “facts,” even facts as powerful as video and audio recordings, never speak for themselves. All factual evidence, even evidence as apparently clear as video footage, must be placed in context. In different contexts and to different jurors, these recordings can mean very different things. 

In the Blagojevich trial, the phone calls could be seen as clear evidence of corruption to someone who sees a political quid pro quo as unethical. To someone else, who sees political horse-trading as a normal part of political life, the audio recording could seem to be rather unremarkable. In post-trial interviews, the Blagojevich jurors have also criticized the prosecution’s case, calling it “meandering” and disorganized. In other words, it would seem that the prosecution failed to tell a clear, persuasive story that put the audio-taped evidence in context. 

In the Mehserle case, the defense claimed that the officer meant to draw his Taser to subdue an unruly and inebriated Grant during a melee in the early hours of New Year’s Day, and that he drew and fired his pistol by mistake. However, different people could have very different interpretations of what happened. To a juror suspicious of the police or with first-hand experience with racial discrimination, this defense might seem unpersuasive. The video would then appear to be a police execution of a helpless suspect. To another juror, perhaps one sympathetic to the demands of police work, the video could seem to be a terrible mistake made in a moment of extreme stress. Jurors in this case clearly thought the latter was the more persuasive story. 

Both the Blagojevich and Mehserle cases, and many more like them, consistently demonstrate that the facts of a case, even powerful video and audio evidence, do not speak for themselves. Attorneys must always place the evidence in context and should remember that the same evidence may have a very different meaning for different jurors.