When believing can be seeing: The unregulated approach to video evidence in U.S. courts and the need for archival legal standards

Abstract

This paper examines the unregulated approach to video evidence in U.S. courts. It provides an overview of three key factors that contribute to the inconsistent treatment of video as evidence: the shifting and uncertain categories under which video is admitted as evidence, the discrepancies in how video is perceived and interpreted, and the lack of widespread legal training in visual literacy. Together, these factors exacerbate the challenges that visual perception and interpretation pose in court, as illustrated by the analysis of the varied use of video by district and appellate courts at summary judgment in McDowell v. Sherrer, a case involving an Eight Amendment excessive force claim. By discussing these challenges, the paper argues for the necessity of archival legal standards, which could facilitate research into uniform guidance and applications for treating video as evidence. Otherwise, civil rights and human rights may be disparately recognized and upheld.