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Judges as Film Critics: New Approaches to Filmic Evidence
Jessica M. Silbey, Suffolk University
37 University of Michigan Law Review 494
ABSTRACT:
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" 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.
SUGGESTED CITATION:
Jessica M. Silbey,
"Judges as Film Critics: New Approaches to Filmic Evidence"
(January 26, 2004).
Suffolk University Law School.
Suffolk University Law School Faculty Publications.
Paper 17.
http://lsr.nellco.org/suffolk/fp/papers/17
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