Video in Law
Inexpensive and easy to use video technology has made it possible for video to move out of television studios, and its use is now ubiquitous and pervasive: institutions and persons in the street record whatever they choose to turn their cameras on. So audiences are becoming accustomed to seeing video that is no longer just a vehicle for news and drama on television, which are controlled for production values and are highly edited to create and sustain audiences. They are used to seeing video clips that may be hard to see, that may have bad audio, that stop and start chaotically, that feature mundane or unusual content that someone somewhere thought was interesting for whatever personal reasons. This is web video on YouTube, Vimeo, Google Video, and so on. This is the context for the emerging legal video culture – not the stuff of law and film, with its clear narratives and complex expression of its themes – but video entangled at every level of legal culture and practice.
Courts, like the rest of society, use available technology to help accomplish various functions. Video is used to document court proceedings (even, at times, to substitute for court stenography), present evidence (particularly depositions, visits to scenes, and sometimes reenactments) and increasingly to enable distance-appearances – of incarcerated defendants, witnesses who may not be available otherwise due to our global economy, and for official recordings of confessions [Gower]. Or video may itself be evidence. Any newer video forms are going to fit into this “videoscape” of common uses of the technology and their affiliated social practices. In general, these practices assume authority for the camera, and sanction its use, because it is believed to contribute factual truth to matters at hand and/or a more complete sense of presence than is possible through documents alone. [3]
That this could significantly complicate legal decision making has been observed in discussions of the use of videoconferencing in appearances and arraignments in criminal proceedings, where defense lawyers have to choose whether to join their client in a remote location, making possible consultation, advice, and support, or to remain in the courtroom, where the client may see the lawyer as part of the court and not as a personal advocate, but where presence in the court enables the defense lawyer to confer with the judge. The benefits attributed to using videoconferencing in these contexts are savings in time and travel costs and easier management of security. Defendants have the right to refuse to appear or be arraigned in this fashion, although there are no doubt pressures toward accepting it. Poor technological arrangements can exacerbate the problems the defendants face. [Fowler] [Sharkey]
When courts use video as part of their regular administrative practices, we have recordings made to accomplish deliberate ends, and while they may be “edited” both through the timing of the start and end of recording or because selections may be made from the video stream (clips from long depositions, for instance), they are not constructed cinematically through the “grammar of film language” [Arijon] to any great degree (though any fragment of video has expressive effects arising from whatever was captured in combination with the circumstances, equipment, social surround and viewer understanding.) While it is very possible to criticize video used by the legal system for technical inadequacy, poor planning for ancillary or incidental effects that can actually affect the administration of justice (as in camera angle for remote appearances; matching of gazes or not in video-conferencing), the circumstances of their making bespeak a measure of control over their realization. Someone ordered and set up the equipment; presumably there are technical staff available to troubleshoot any problems and there is probably some system of backing up crucial data and archiving it. Or there should be.
Newer kinds of video that are and will be increasingly at issue are recordings made by surveillance cameras and those made by mobile devices, such as dashboard cameras in vehicles, and hand-held devices (made by officers or members of the public) to document unfolding events of uncertain outcomes. Uses where cameras are fixed and simply record what appears in their field of view as determined by the installation offer, whatever the angle, a fixed gaze with its own implications, whether bird or worm’s eye view, whether eye level to the action or not. We have other expectations as well: for instance, we expect that surveillance film will be low resolution and grainy, for that is what we have been accustomed to seeing in films and on television or in stores where we shop and catch ourselves in the screens of camera surveillance installations. In fact, these cameras, like our cell phone cameras, are getting better and better. Compare the now famous Columbine High School cafeteria footage from 1999 [Klebold] with the Salt Lake City, Utah, surveillance footage released by the police in April 2009 [SaltLake City].