Candid Appellate Camera

Appeals, as I sometimes have to explain to clients and/or family members, are proceedings based on the record compiled by the district court. Most are resolved on the briefs, without oral argument. If you get oral argument, it's usually just a few minutes and can quickly wind up off on a tangent. It's critical, therefore, that when you send the record to the appellate court, you have the best evidence available to you in the package.

In the Fourth Circuit (and most Circuits, I think) the parties are responsible for putting together a Joint Appendix, a collection of documents that are most relevant to the issues on appeal. It involves paper an overwhelming amount of the time, but occasionally you have to deal with videos or audio recordings. Shoehorning such things into a paradigm designed for paper is a pain in the ass, to be honest.

Which is why I wonder if the option Adam Liptak discusses today in the New York Times might be an option in the future:

The Supreme Court is entering the YouTube era.

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or legal precedent but rather to a video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Indeed, here it is. Judge for yourself:



In an era where briefs and oral arguments, not to mention opinions, are widely available online, this seems like a good thing. If the crux of the case is what happens on tape, what better way to let the public in on the issue than show it to them?

Not that what appears on video is self evident to everybody who sees it. In a 2007 decision involving the Fourth Amendment as applied to a high speed chase, video was key:

Justice Antonin Scalia said at the argument that the video showed 'the scariest chase I ever saw since ‘The French Connection.’ '

Justice Stephen G. Breyer said he was not sure how to think about the appeals court’s interpretation. 'I end up with Chico Marx’s old question,' Justice Breyer said. 'Who do you believe — me or your own eyes?'

When the decision in the case, Scott v. Harris, was handed down, only Justice John Paul Stevens dissented. With understated sarcasm, he highlighted the new role his colleagues had taken on.

'Eight of the jurors on this court,' Justice Stevens said, 'reach a verdict that differs from the views of the judges on both the district court and the court of appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.'

Although I tend to side Stevens on the merits, I think the opinion has a more solid factual basis because of the video review. In the end, it's probably a good development. Given that most (if not all) police cars have cameras in them, video is increasingly present in criminal cases. Better to let the court see exactly what went on and argue from there, rather than arguing about what happened.