In recent decades, technology, especially the Internet, has undeniably revolutionized the practice of law -- just as it has seemingly every other aspect of society. Still, one hallmark of law seemed safe from all the change: the deference appellate courts afford the factfinding made by lower courts. But recent activity by the Supreme Court, unquestionably the guiding light in United States legal jurisprudence, appears to shift that age-old balance in an entirely new way. By relying in part on YouTube video, the Supreme Court has opened a new door to the pursuit of justice, and nobody can be exactly sure where it might lead.
The Court first notably went down the YouTube road in deciding Scott v. Harris (.pdf), a 2007 case dealing with a high-speed police chase in which Georgia man was paralyzed when his car was rammed by law enforcment officers. There, the Court relied on video of the incident taken from the cab of the police car and posted to YouTube to help it overturn the decision of the lower courts. Intriguingly, the Court invited the public to view the video itself, posting the video on its website along with its decisions (see #37). Moreover, Justice Breyer suggested in a concurrance that the interested reader take advantage of the link in the court’s opinion and watch it.”
Already, this innovative stance by the court is showing its effects. For example, a recent petition to the Court, offered in its first supporting citation a YouTube link depicting the alleged police brutality at the heart of the case, rather than the statutory and case law precedents or sworn affidavits that historically have been proffered in such contexts. All of which invites speculation as to how exactly the viewing of video -- especially in the types of situations mentioned -- will affect the execution of the law. A law review article published in the Harvard Law Review begins this inquiry, noting a study showing that the evidentiary information contained in videos, including those posted to YouTube, while undoubtedly accurate depictions of an event, still may be interpreted differently by different people. Perhaps more fascinating, though, is that the study found those interpretations to vary sharply along cultural, social and other demographic lines, suggesting that the see for yourself ideology may not be quite as straightforward as it would appear.
Inevitably, this leads to a handful of questions, applicable in a variety of contexts, none of them easily answered. Is it proper for appellate courts to conduct this type of review of the record in light of historical practices? Does review of video posted to a public website infringe impermissibly on the role of the trial court? If not, does it change the trial court's role in any significant manner? May rulings of the Supreme Court (or any court) be weakened if based on interpretations of video that do not align with interpretations held by certain divisions of society? Should the existence of varying interpretations of video itself prohibit judges from basing their rulings on them, even in part, where the legal standard calls for more certainty (no reasonable juror, for example). Only the future may reveal the answers to these questions, and, as the Supreme Court seems to be inviting their consideration sooner rather than later, you might want to keep your eyes peeled and YouTube loaded.
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