Judges as Film Critics: New Approaches to Filmic Evidence

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as “demonstrative evidence,” evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live witnesses in court with communications via video and film technology. Another anxiety is the public perception of the trial itself as undisciplined and capricious rather than as controlled and truth-establishing. The Article concludes by showing that these anxieties are not well-founded because, when filmic proffers are properly considered, they are admitted as substantive and testimonial evidence. As a result, they are (or should be) subject to hearsay rules and cross-examination and to other rules intended to safeguard the integrity of the trial. The analysis in Judges as Film Critics is a continuation of the author’s prior research and publications in the field of law and culture, and draws from evidentiary doctrine and legal scholarship as well as from contemporary film theory and history. This combination takes a fresh look at filmic evidentiary proffers and questions the very assumptions that govern the meaning they are said to project, in light of contemporary theory devoted to the interpretation of film. Such an analysis reconsiders the legal categories that regulate the use of filmic evidence—such as demonstrative, substantive, and real evidence—and begins the development of a more nuanced and common sense doctrine governing the treatment and meaning of film in the courtroom. In light of the long history of the use of film in court and the growing use of visual media in the courtroom, it is time to make sense of the case law purporting to explain the admissibility of filmic evidence in terms of a discipline devoted to the film medium