Measuring Criminal Premeditation

How long it takes a criminal to begin an illegal act to the time that the crime is actually committed is obviously relevant to determine criminal intent, and most importantly, premeditation. Mens rea, according to the Oxford Dictionary, is a noun that means “the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused. Compare with actus reus.” In the age of ubiquitous security cameras (CCTV – closed circuit television), amateur videographers and smart phones with video capacity, a surprising number of criminal acts are now recorded.

Seeing the images of criminal activity are amazingly persuasive to both judges and juries. “You did it. I saw that you did it. I’ve examined precisely your digitally recorded actions, in real time and in slow motion. I’ve seen every fraction of a second of your movements. You are guilty, guilty, guilty! And I watched you think about what you were doing. It was intentional, carefully plotted. I saw it with my own eyes!” Really? Did the mere act of watching a crime in slow motion have any impact on a juror’s or judge’s perception?

Absolutely, according to a study reported in the journal from the National Academy of Sciences (PNAS). “Researchers found that slowing down footage of violent acts caused viewers to see greater intent to harm than when viewed at normal speed… Viewing a killing only in slow motion made a jury three times more likely to convict of first degree murder [aka “capital murder”]...

“The importance of video evidence in courtrooms has grown in tandem with its supply in recent years…. As well as the mountains of smartphone recordings, CCTV also routinely captures assaults, robberies and even murders. Some police officers even wear on-body cameras.

“Courts all over the world are willing to accept these recordings in evidence and they are sometimes shown in slow motion, to help juries make up their minds about what really happened within the often chaotic environment of a crime scene.” Reported by the BBC.com, August 2^nd. First degree murder requires premeditation. Slow motion suggests the passage of sufficient time to meet that requirement, even if the actual event may have taken place in a second or two or a few more.

“A key point in many murder cases is the intention or otherwise of the accused. So the researchers carried out a number of experiments to determine the impact of slowing down the replay on observers.

“In their first study participants, acting as jurors, watched a video recording of an attempted robbery of a store, which ended with the shop assistant being shot dead.

“They were shown either a regular speed or a slowed down version. Watching the slow-motion version quadrupled the odds that these mock jurors would begin their deliberations ready to convict.

“The researchers believe that the slow motion version is giving observers the sense that those carrying out the violent acts on tape have more time to think and deliberate - and the observers therefore believe there is more intent in the violent actions.

“‘Slow motion can be a better version of reality, sometimes it's very helpful for seeing how actions unfolded,’ said lead author Eugene Caruso from the University of Chicago…. ‘But at the same time we found that it seems to have an effect on our perceptions of someone's inner mental states, and there it's really not so clear that slowing things down gives us a more accurate perception of what was going on in someone's mind at the time they were acting.’…

“‘This analysis of slow motion use in court cases fits into a broader pattern,’ said Prof Daniel Reisberg, an expert in psychology from Reed College in Oregon, who was not involved with the study… Jurors often seem ready to blame someone for things that (in the jurors' view) the accused person could have realised, or could have foreseen, even though the jurors' supposition is wrong - because the person couldn't have realised or foreseen where things would end up.’” BBC.com.

What’s the solution? At a minimum the judge’s instructions to the jury need to address the impact of this study and require jurors to deal with the actual elapsed time of the events, knowing that any slow motion review would otherwise color their perceptions. Without such clear instructions, where slow motion review has taken place and is relevant to intent, failure to give such instructions should be the basis for reversal and remand to the trial court for reconsideration.

I’m Peter Dekom, and justice requires constant refining, particularly as evolving technology introduces new issues into the criminal justice system.