From cell phones to police body cameras, today’s courts increasingly use video as evidence. Yet U.S. courts, from state and federal all the way to the Supreme Court, lack clear measures on how video can be used and presented as evidence in court in ways that reduce biases in judgment. The underlying pervasive assumption is that video evidence need not be governed by unified standards because seeing is believing—that is, what we see is the truth. This prevalent logic of naïve realism prevents court systems from incorporating safeguards to ensure rigorous visual interpretation. As a result, judges, attorneys, and jurors treat video in highly varied ways that can lead to inconsistent renderings of justice.
January 26, 2022 Feature
Through the Lens of the Law: Interpreting Video Evidence in U.S. Courts in the Digital Age
By Sandra Ristovska
As a Mellon/ACLS Scholars & Society Fellow this bar year, I am working on a systematic study of the use of video as evidence in state and federal court trials (1990–2020) in criminal, immigration, and American Indian law. This is the first interdisciplinary study that seeks to understand methodically how, when, and to what ends the logic of naïve realism has informed the rhetorical strategies guiding the presentation and use of video as evidence in court. As part of the study, I am also building an original database of the aforementioned court cases and the video evidence used in each case. The fellowship provides the means for a unique partnership with the Scientific Evidence Committee of the Science and Technology Law Section through which ABA members and I can collaborate, interact, and learn about each other’s work, motivating questions, methods, and practices. I bring in my expertise in visual communication and media studies, and I look forward to learning from the members’ practical legal expertise.
The overarching goal of the partnership is twofold: to provide a basis for guidelines to inform how video evidence is assessed under the law in criminal matters and to open a new realm of PhD career pathways that can leverage visual analysis into various law and policy domains.
This project builds on my prior work on video evidence in international criminal courts and tribunals and my advisory work with the Visual Law Project at Yale Law (2016-17). Born out of current issues in the public sphere (e.g., technology’s outpacing of the law; cell phone images increasingly offered as evidence in legal cases; growing concerns about deepfakes), this project seeks to provide foundational research for the development of guidelines that facilitate better evaluation of video as evidence in court. Responding to the Mellon/ACLS’s commitment to strengthening the broad potential of doctoral education in the humanities and humanistic social sciences, this project will incorporate the lessons learned in the fellowship year to develop programming for doctoral curricula innovation at the University of Colorado Boulder in 2022–23.
Overall, this project is part of my long-term career vision to engage academics and broader constituencies for public good so that legal and institutional stakeholders use evidence-based approaches when evaluating the benefits and pitfalls of visual technologies.
If you have an interest in this area or experience working with video evidence, please feel free to contact me at [email protected]. I’d love to hear from you.