In Duck Soup, Chico Marx, disguised as Groucho Marx says "Who ya gonna believe, me or your own eyes?" A recent decision from the Florida Supreme Court supports that a judge, and even an appellate judge, is free to believe her or his own eyes, in some circumstances. However, the careful adjudicator will nonetheless recognize limits on that license.
The era of technology is upon us. Video is past ubiquitous, see Evolving Issues with Body Cameras (July 2018). The implications of video were recently demonstrated by the Florida Supreme Court in Wiggins v. Florida Department of Highway Safety, 209 So.3d 1165 (Fla. 2017). The case involved a driver accused of driving under the influence of alcohol. The driver refused to submit to a sobriety test and a driver's license suspension followed. The driver appealed the administrative hearing officer's decision to the Circuit Court, which was reversed based upon the Circuit Judge's review of video evidence demonstrating the vehicle operation that led to the traffic stop.
The decision in the case is intriguing, first because a driver's license suspension merited review by the Supreme Court. There is a perception that small issues do not make it to that altitude. But, it is also interesting because the hearing officer upheld the license suspension, the Circuit Court reversed the suspension, the Florida First District Court upheld the suspension, and ultimately the Supreme Court reversed the suspension. These outcomes, like the back and forth on a tennis court, are intriguing. Beginning with an August 2011 traffic stop and ending with a 2017 Supreme Court decision, this demonstrates challenges with the legal process. The average observer might well be fascinated.
The appellate process is governed in large part by "standards of review." When an appellate court is faced with a dispute about what a law says, about a "question of law," it provides no deference to the lower tribunal(s) interpretation. Its review is "de novo," meaning "over again" or "anew." But, when an appellate court is faced with a question of fact (did he or didn't he, was it or wasn't it, etc.) the standard of review is a question of whether "competent substantial evidence" supported the conclusion of the trial adjudicator. There is more deference afforded by the Court regarding the facts than the law.
In Wiggins, there was disagreement between the testimony of the arresting police officer and the video recorded by the police vehicle dashboard camera (the arresting officer failed to activate a "body camera" during the interaction with the driver). The Court noted that the recording was thus limited to video without the audio component (the only activated microphone was inside the car).
The arresting officer testified that "the vehicle appeared to swerve." Further, "that Wiggins drifted within his lane, traveled thirty miles per hour in a forty-five mile per hour zone, and crossed over the outside lane line—nearly striking a right-side curb before swerving back into his lane," “braked hard for no apparent reason and then accelerated back to about 30 miles per hour.” There was thus detailed testimony regarding Wiggins' driving. Wiggins declined a field sobriety test, and was arrested for driving under the influence. The refusal of testing led to his license suspension, which he appealed to a hearing officer. I am periodically surprised how few understand that such an appeal of an "automatic" suspension is possible.
At the hearing, the arresting officer "admitted that there were inconsistencies between his arrest report and the video" evidence. Despite this, the hearing officer accepted the officer's interpretation of perceptions during the stop and arrest over the illustration on the recording itself. The Supreme Court "embedded" that video into its opinion: (https://efactssc-public.flcourts.org/CaseDocuments/2014/2195/DashVideo.wmv).
The Court's action in that regard, is likewise somewhat novel and interesting. In the vast majority of legal opinions, a reader is left with what a court perceives and describes. The pictures of a crime scene or video of a traffic stop are not a usual part of the written opinion in this manner. The publication of such evidence, in a publicly accessible method is innovative, a result in part of the digital age in which we live (that we can do it effectively).
The Court's action in that regard, is likewise somewhat novel and interesting. In the vast majority of legal opinions, a reader is left with what a court perceives and describes. The pictures of a crime scene or video of a traffic stop are not a usual part of the written opinion in this manner. The publication of such evidence, in a publicly accessible method is innovative, a result in part of the digital age in which we live (that we can do it effectively).
The Court concluded that
"video showed Wiggins driving totally within the proper lines. Wiggins did not cross any lines, nor did he nearly hit the curb. Wiggins did change lanes only once in an apparent attempt to clear the lane for Saunders, but he utilized his turn signal before doing so. Wiggins then activated his turn signal to move into a left turn lane, braked in preparation to turn at a traffic light, and made a normal left turn once the traffic light turned green."
The video, according to the Supreme Court, "totally contradicted and refuted the testimony and arrest report of" the arresting officer. Despite this, the license suspension was affirmed by the hearing officer, relying upon the testimony of the officer rather than upon the video evidence.
Wiggins appealed that decision to the Circuit Court. That court "recognized that . . . it was not permitted to totally reweigh the evidence de novo." Its job was to determine if competent evidence supported the hearing officer's decision, not to view the evidence and make new determinations in weighing evidence. But, concluding that "the objectivity and neutrality of the video evidence placed the circuit court in the same position as the hearing officer," the judge reviewed the video and concluded it "refuted both the arrest report" and the arresting officer's testimony. The Circuit Judge concluded that the officer's testimony was therefore not "competent, substantial evidence," and concluded, "it was unreasonable as a matter of law for the hearing officer to accept the report and the testimony as true."
The First District Court of Appeal reviewed that decision. It concluded that the Circuit Court had "essentially reweighed the evidence," contrary to the requirements of the law. The First District afforded the hearing officer's conclusions "deference because she is experienced on such matters and heard the live testimony herself." The District Court reversed the Circuit Court and instructed the Circuit Court to "apply the law," rather than reweigh the evidence itself. However, the District Court also certified to the Supreme Court that the questions presented were "of great public importance," which is one method by which the Supreme Court may gain the jurisdiction to review a decision.
The Supreme Court noted that "video evidence has become increasingly prevalent" in some proceedings. This evidence has an "objective nature" that allows review in the appellate process "without the need for interpretations of the hearing officer." Essentially, the Court concluded that truth, like beauty, maybe "in the eye of the beholder."
In light of the "reality of human imperfection," the Court concluded that "a judge who has the benefit of reviewing objective and neutral video" as in this setting "cannot be expected to ignore that video evidence simply because it totally contradicts the officer's recollection." The Court concluded that not reweighing the evidence in this setting "would produce an absurd result." However, the Court specifically held that the review of the evidence and the decision not to accept the officer's testimony was not "a reweighing of the evidence." Instead, the Court concluded
In light of the "reality of human imperfection," the Court concluded that "a judge who has the benefit of reviewing objective and neutral video" as in this setting "cannot be expected to ignore that video evidence simply because it totally contradicts the officer's recollection." The Court concluded that not reweighing the evidence in this setting "would produce an absurd result." However, the Court specifically held that the review of the evidence and the decision not to accept the officer's testimony was not "a reweighing of the evidence." Instead, the Court concluded
"the circuit judge here did not engage in a reweighing of the evidence, but rather, determined that the contradicted testimony of the officer was not sufficient to amount to competent, substantial evidence."
This distinction, if it is one, will not sit well with all observers. The Court suggested that more deference might be due to the hearing officer, had the evidence contradicting the officer's testimony been other testimony or documents, a credibility issue, or at least a dispute with less objective clarity. But here, the Court noted yet again, the contradictory evidence was "objective and neutral video." Such evidence can, in Florida, now render eyewitness testimony "to be not 'competent, substantial' evidence."
A dissenting opinion suggests that the video and the testimony of the arresting officer are each "competent, substantial evidence." Therefore, the "circuit court went beyond" the appropriate scope of review in "reweighing of the evidence." This essentially agrees with the First District decision. This dissent urges that "this is not a case in which video evidence indisputably establishes the controlling facts" and therefore that there is conflict in the evidence that must be reconciled. It takes issue with the Court's conclusion that the video utterly and patently contradicts the officer's testimony. The dissent argues that this reconciliation of conflicting evidence is the job of the hearing officer and not the appellate process.
The dissent urges that "just like any other type of evidence, video is subject to conflicting interpretations.” (citations omitted). An example is described in which two United States Supreme Court Justices expressed distinct and contradictory interpretations of a particular video. Might two reasonable persons view a video and disagree regarding what it portrays? That hearkens perhaps to the "beholder" adage cited above. Time will tell whether the Court's decision regarding the infallibility of video stands as Florida law or whether the dissent's "interpretation" argument gains acceptance with time. What is seemingly beyond debate, is that cameras will continue to proliferate and therefore recordings of events likely will also.
Where might this impact workers' compensation? Certainly, there is the potential for a dashcam to be implicated in some cases. But perhaps more likely for premises security cameras to contradict testimony: of what happened and when, of who was present at the time of accident/injury, and more. Perhaps there are implications for those who would video a medical examination, physical therapy session, or functional capacity evaluation? And there is always the potential for surreptitious surveillance video obtained in the course of someone's pursuit of workers' compensation benefits.
I recall an intriguing case years ago where a client had experienced issues with disappearing time cards. Its solution was a surveillance camera that focused on the hallway (entrance/exit) in which the clock and cards were kept. The video was reviewed whenever a time card issue arose, and rarely otherwise. Following a reported arm/shoulder injury, a manager reviewed the recording to see whether the employee favored his arm when he clocked out and left work the day he claimed to have fallen. That demonstrated him clocking out with normal movement and pace.
But, seconds after clocking out it showed him stopping to purchase a soda from a machine in the hall. When the machine failed to dispense as desired, the recording showed the employee shaking the vending machine, then repeatedly hitting it with his forearm, and eventually repeatedly ramming his shoulder into it. He then walked out of view holding his arm gingerly. That case was denied, and never proceeded to a hearing. But, if it had a judge might well have believed the workers' reported fall at work, and found the injury compensable. In that hypothetical setting, should the appellate court view the recording, or rely upon the trial judge for that reconciliation of testimony versus video? The Supreme Court in Wiggins suggests that such appellate review and independence would be absolutely appropriate.
Will appellate courts become increasingly prone to review of such videos, or at least willing to view "objective and neutral video?" Will the willingness question depend upon the determination that a particular video is indisputable and subject to one interpretation only? Or, as illustrated by the United States Supreme Court case argued by the dissent, will the persuasiveness of video always be in the eye of the beholder, as is beauty, or so we are told?
Some will perhaps argue that the Wiggins majority has conceded the dissent's "interpretation" argument by publishing the video as an embedded element of the Court's opinion. They may assert that if the video is absolute and indisputable, then what is the point of the public independently interpreting it in this unique proffered manner? While a court might explain the evidence, appellate opinions have not traditionally included pictures, documents, or other evidence representations. Does this signal a trend toward greater transparency and evidentiary support?
Others might similarly, but conversely, argue that the publication of the video merely supports that it is unassailable; transparency of the Court being equated with indisputable truth. Of course, one retort to this might be the dearth of instances in which such a link to the actual evidence exists (was the evidence less compelling in all those cases?)
In the age of the Internet, each argument might find advocates. And for now, in Florida, we are returned to Chico's question for judges and appellate courts: "Who ya gonna believe, me or your own eyes?"
Where might this impact workers' compensation? Certainly, there is the potential for a dashcam to be implicated in some cases. But perhaps more likely for premises security cameras to contradict testimony: of what happened and when, of who was present at the time of accident/injury, and more. Perhaps there are implications for those who would video a medical examination, physical therapy session, or functional capacity evaluation? And there is always the potential for surreptitious surveillance video obtained in the course of someone's pursuit of workers' compensation benefits.
I recall an intriguing case years ago where a client had experienced issues with disappearing time cards. Its solution was a surveillance camera that focused on the hallway (entrance/exit) in which the clock and cards were kept. The video was reviewed whenever a time card issue arose, and rarely otherwise. Following a reported arm/shoulder injury, a manager reviewed the recording to see whether the employee favored his arm when he clocked out and left work the day he claimed to have fallen. That demonstrated him clocking out with normal movement and pace.
But, seconds after clocking out it showed him stopping to purchase a soda from a machine in the hall. When the machine failed to dispense as desired, the recording showed the employee shaking the vending machine, then repeatedly hitting it with his forearm, and eventually repeatedly ramming his shoulder into it. He then walked out of view holding his arm gingerly. That case was denied, and never proceeded to a hearing. But, if it had a judge might well have believed the workers' reported fall at work, and found the injury compensable. In that hypothetical setting, should the appellate court view the recording, or rely upon the trial judge for that reconciliation of testimony versus video? The Supreme Court in Wiggins suggests that such appellate review and independence would be absolutely appropriate.
Will appellate courts become increasingly prone to review of such videos, or at least willing to view "objective and neutral video?" Will the willingness question depend upon the determination that a particular video is indisputable and subject to one interpretation only? Or, as illustrated by the United States Supreme Court case argued by the dissent, will the persuasiveness of video always be in the eye of the beholder, as is beauty, or so we are told?
Some will perhaps argue that the Wiggins majority has conceded the dissent's "interpretation" argument by publishing the video as an embedded element of the Court's opinion. They may assert that if the video is absolute and indisputable, then what is the point of the public independently interpreting it in this unique proffered manner? While a court might explain the evidence, appellate opinions have not traditionally included pictures, documents, or other evidence representations. Does this signal a trend toward greater transparency and evidentiary support?
Others might similarly, but conversely, argue that the publication of the video merely supports that it is unassailable; transparency of the Court being equated with indisputable truth. Of course, one retort to this might be the dearth of instances in which such a link to the actual evidence exists (was the evidence less compelling in all those cases?)
In the age of the Internet, each argument might find advocates. And for now, in Florida, we are returned to Chico's question for judges and appellate courts: "Who ya gonna believe, me or your own eyes?"
