My earlier post about instant replay triggered some excellent comments. Professor Jessica Silbey, whose work on filmic evidence I cited in that post, sent an e-mail commenting on the issue. She has a PhD in comparative literature, along with her J.D., and is a leading academic authority on the use and limits of filmic evidence in the judicial system. She agreed to let me post her comments:
This led to an argument with my husband, who, as your post predicts, is in the majority really liking the instant replay. None of this answers your question.
The difference (as I understand how instant replay works) between cop cams and instant replay in sports is the number of cameras on the event that can be accessed afterward. In football (I am told), there are at least four different official video views, not to mention all the other unofficial but competing broadcasters to whom one could go for multiple angles. One of the limitations of filmic evidence is the perception of omniscience from a singular view. If instant replay works as I am told -- with multiple perspectives -- the sense of omniscience and singularilty in interpretation should evaporate as it becomes clear that from different angles the play can be read differently.
"His knee looks down from this shot but from the other angle it looks like it hadn't yet touched the ground" -- something like that. Also, with multiple cameras we get multiple brightness and darkness; different focuses, etc. Certainly, people can glob on to one of the camera angles and images that seem the "clearest" but that doesn't mean they aren't also going to borrow from other angles to piece the story together. This gets to be much more like what normal evidentiary processes are supposed to do (piece oral, documentary, photographic, forensic evidence together to tell a persuasive story). Instead of relying on a singular source, the fact finder is relying on many. They may all be filmic in this case, and that suggests that they think the film is better than these others, but at least no singular film is better. I consider that a step in the right direction.
Also, with instant replay I wonder how far beyond the discrete play the video will extend. When will players begin to ask for "context" (will they ever?) to judge the call. Justice Stevens certainly calls for that in Scott when he criticizes the majority regarding its interpretation of the sound issues with the video and the 2 or 4 lane highway. "My knee may have been down but if the camera had been focused on the guy 2 yards back, you would be calling a penalty." I don't know if I have all the sports talk down, but I gather you get my drift. Once we introduce the power of film into our judgment mechanism, we can't help but ask for it to shed light on all sorts of things. And because it can't without making this more complex (which is what the event that is to be adjudicated is anyway!) I'm not sure film helps at all.
Good comments and more fodder as more sports begin to use replay and/or expand the uses of replay. Her point about "context" is interesting, although not in the situation she describes. But consider an NBA ref using replay to figure out whether a foul was flagrant. Does context--something that happened just before, out of the camera's view--affect whether it was a flagrant?
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