Must Justice be blind to be objective?

Introduction:

Law as we know it has always been in the confines of text. The world that the law is meant to reign upon has relocated its focus from text to visual ways of understanding various happenings as the technology develops. But it is imperative that before one technologizes the law and uses visual media to drive the idea of justice, one must track the already existing instances of visual justice in courts of law. Therefore, in this article I chart the instances where the courts have relied on visual media to shape the idea of justice. I aim to look at instances where the judges, in American courts, have made use of images to redefine the nature and idea of justice. The instances I chart will reveal the larger than life existence of a person and the act in question, that gets created when the idea of justice takes on a visual look. The article wants the readers to check the pace at which they want justice to be imparted with the aid of visual understanding of events. 

Entry of Visual Media in Law-Courts:

The images made an entry into the judgments of the U.S. law-courts towards the end of the twentieth century. But the image then was not very substantially used in the giving of decisions by the judges, rather they were dovetailed as appendixes to the judgments with a running reference being made to them in the text. But overtime the judges started making efforts towards making justice more visual. In United States v. Kyllo the issue was with regard to deciding the wrong committed by the police by intruding into a person’s house without warrant. The form of intrusion here was clicking a bird’s eye view image of the said person’s house. The court of law to decide the extent of intrusiveness actually examined the image (Figure 1) that was taken and also included the image in its judgment. 

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                                                                 Figure 1

The judges in United States v. Kyllo annexed the image to their judgement, but they failed to use the image and engage with it in their judgment. Reflecting their perturbed relation with images, the judges generated a typographical version of the image closely explaining what the image portrayed, with a photographical clarity, and then used this typographical version of the photograph to make observations in the case, instead of using the actual picture. 

But overtime there came a positive change in the way that the courts dealt with the visual media that was available to them with regard to cases. A very glaring example of this shift in the behaviour of the court as compared to the 2001 decision of the Kyllo’s case, was the case of Scott v. Harris. In Scott’s case the court used a video tape depicting the whole happening that was in question and in its judgment made references to the video tape to make references and did not give its own typographical account of the happening as it did in Kyllo’s case. 

This positive change has only prospered. But this prospering might have come at the cost of objectivity of law. U.S. Supreme Court Judges have started making use of the electronic devices like an ipad to deliver justice. 

Revealing the Nature of Justice:

When one analyses the usage of visual media by a judge in the law-court, it reveals the nature of justice that prevails in the country and how the idea of justice is drawn out of the image to define ‘what is right/just?’. An instance of such derivation of the idea of justice from the images is the case of Omar Grayson v. Harold Schuler. Issue in this case was:

“The plaintiff, a former inmate of the Big Muddy Correctional Center, an Illinois prison, brought this suit under 42 U.S.C. § 1983 against a correctional officer who ordered the forcible shearing of the plaintiff’s dreadlocks. The plaintiff argues that the order (which was carried out) violated the free exercise clause of the First Amendment.”

Justice Posner in the aforementioned case used an image (Figure 2) of Bob Marley to portray the plaintiff along with the caption as mentioned in Figure 2.

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                                                            Figure 2

The usage of this image of Bob Marley fetches various observations as to how a judge/law deals with an image to extract justice out of it. Figure 2 was not used by either of the parties while making their arguments. It was rather picked by Justice Posner himself to make a point. Very preliminary and extremely ridiculous dealing of the judge with this picture was that he didn’t even bother to cite or attribute the credits of the picture to its photographer. Secondly, the judge/law/justice system very insensitively equated all the black men across the board, disregarding any difference in circumstances of the two different men involved here. The petitioner wasn’t a famous person. The image in this case actually mitigated the unbiased nature that should have been adopted by the law-court in giving their judgment; rather it slapped totally different kinds of biases on the character of the actual petitioner in the case. Merely having dreadlocks did not make the two men with the same skin colour, the same person.

Another case where the court of law made use of an image of a person who was neither a party to the case and nor was she the concern of the case, when an  image was used by the attorneys in their arguments, is the case of  35 Bar and Grille, LLC, Et. Al. v. City of San Antonio. The aforementioned case is also famously known as the strip club case. The court while giving its ruling in the strip club case used the image (Figure 3) of a stripper from the 1960s, named Miss Wiggles. She was not even alive when the decision was given.

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                                                                   Figure 3

The judgement of the strip club case made use of sexual innuendos along with the aforementioned image. An instance of such double entendre is revealed in this line from the judgment, 

Plaintiffs clothe themselves in the First Amendment seeking to provide cover against another alleged naked grab of unconstitutional power.

The reasoning used in the said case in no way mandated the usage of the image above or innuendos as a pivot. But still it was used by the court to make the judgment a popular one. It would be safe to conclude the image actually baffled the law and the court failed to link the idea of justice with the image that it used. Moreover, the issue in this case was about the naked dancing of girls in the strip clubs whereas the image that was used, portrays Miss Wiggles covered all-over with clothes from neck to ankles. 

Therefore, even if the introduction of visual media has made things very ‘clear’ for the law to look at, this kind of court-craft comes with its own set of stumbling blocks. 

The Stumbling Blocks of visual court-craft:

The major drawback that arises, in my view, due to usage of visual media in the legal discourse is because of the wildness of the visual media. Visual media has a tendency to stir up emotions in the viewer more than the text. Law is an arena that is supposed to be objective and is supposed to work out based on strictly rational grounds. Whereas the visual media when allowed to convey the idea of justice or derive the answer to the question as to ‘what is right/just?’  militates against the idea of objectivity and the foundation of legal rationality. Examples are the images above. Ideally, the facts that should have been presented for justice to be delivered should have been about a person who was in prison and had challenged the act of the prison authorities of chopping off his dreadlocks, whereas the introduction of the image imparted the person concerned a totally different personality and added the element of being a Rastafarian and famous person. Therefore, although the image might have been used by the judge to invoke a certain sense of justice that the image tried to put forth, but still the idea of introducing it stripped the trial of its objectivity and the objective of basing it solely on legal rationality. It has also been found by research work that the jurors who are exposed to the visual media related to the commission of a gruesome offence are more likely to convict the accused person than the ones who haven’t been exposed to such visual imagery.

The most likely tool that can be used to pacify the wildness and unruliness of the image are “words”. But the usage of words itself can lead one towards conclusions which are at bay from reality. The words that are used as captions with a view to have an objective approach to an image can themselves lead people to have a guided/colourable approach to understanding the visual media. A real life example that proves the point is as follows:

In one well-known experiment, participants shown a film of an automobile accident who were asked how fast the cars were going when they “smashed” into one another gave higher estimates of speed than participants who saw the identical film but were asked how fast the cars were going when they “collided with” one another – and, one week later, were likelier to recall having seen broken glass in the film, even though none was present. Captions guide the interpretation of pictures and suggestive questioning can induce not merely biased but entirely false visual memories.

In a way the law fails to have any tenets that must guide the interpretation of an image in a courtroom because often we take an image, or any visual media for that matter, to be a direct representation of what is reality. But that is not always the case because an image has a very convoluted relationship to reality. It depicts a version of reality, and therefore, an unchecked usage of images to exercise justice, to answer the question of ‘what is right/just?’ can lead one to jeopardise the rectitude of decision-making process. 

As it is clear from the example and analysis above the relationship between the law and the visual is a much nuanced one. One can enter the field of another but it is a volatile exercise to do so. The wildness of the visual can lead justice to different ends based on the judicial bench that it presents itself to. Therefore, in a world that is quickly pacing towards making everything virtual and visual, there is a need for the law to operate and for the justice to be delivered, objectively. Hence, the question remains, must justice be blind to be objective?

Sahil Bansal is a final year law student, at Jindal Global Law School, Sonipat. 

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