Witnessing in The Accused

Jessica A. Silbey, Suffolk University Law School, has published "A Witness to Justice," in Studies in Law, Politics, and Society: A Special Symposium Issue on Law and Film (Austin Sara, ed. 2009), pp. 61-91. Here is the abstract.

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would be. This article explains how the film The Accused is therefore about the relationship between witnessing and testimony, between seeing and the representation of that which was seen. The article elaborates the relationship between the power and responsibility of being a witness in law - one who sees and credibly attests to the truth of her vision - as well as it unpacks the significance of bearing witness to film - what can we know from watching movies.

Download the essay from SSRN here.

Film As Evidence

Jessica Silbey, Suffolk University Law School, has published "Cross-Examining Film," in volume 8 of the University of Maryland Law Journal of Race, Religion, Gender and Class (2008). Here is the abstract.

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell into a dangerous and common trap of believing - to the point of enshrining in our law - that film captures reality. As Justice Breyer said in oral argument of the case seemingly flabbergasted by contrary findings below: "I see with my eyes ... what happened, what am I supposed to do?"

The Supreme Court is not the first court to fall prey to the persuasive power of film. It is typical for courts and advocates to naively treat filmic evidence as a transparent window revealing the whole truth, as a presentation of unambiguous reality. But film has a history in art as a constructed medium. As filmmakers and critics have known since the beginning of cinema, film's appearance of reality is an illusion, an illusion based on conventions of representation.

How could Mr. Scott have countered the weight of the film and its persuasive power? When faced with prejudicial filmic evidence, how does an advocate undermine the assertive nature of film and its overwhelming appearance of exposure? The advocate must cross-examine the film the way she cross-examines witnesses. Because films are assertive in nature, an advocate faced with filmic evidence must treat it the way she treats other testimonial evidence, critically and with careful scrutiny. She must cross-examine the film. This article will set forth certain examination techniques using a piece of filmic evidence (linked to the article) from a recent case as an example. By doing so, it aspires to be a teaching tool for other courts and advocates in their treatment and consideration of filmic evidence.

Download the paper here.

Jessica Silbey on Film and Confession

Jessica Silbey, Suffolk University Law School, will publish "Criminal Performances: Film, Autobiography, and Confession," in the New Mexico Law Review. Here is the abstract.

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness or honesty of the defendant's statement. To the contrary, close examination of filmed confessions evidences the performative aspect of all confessional acts.

Like autobiographical film subjects, filmed defendants perform their criminality, or enact their legal identity as guilty on film. Framing the confession through a film camera (as increasingly police and detectives do) stresses the qualities of confessional speech as always in the process of forming an identity, and therefore as inherently unstable and manifold. Building on an earlier article that criticizes the nationwide trend that requires the filming of criminal confessions by comparing filmed confessions to a form of documentary filmmaking, this article engages the same critique by examining filmed confessions as a form of autobiographical film. Doing so relocates the analysis of the filmed confessions from one of truthfulness and voluntariness of the spoken confession to one of advocacy and persuasion by the speaking subject. Analysis of several filmed confessions shows how filmed confessions are more akin to filmed autobiographies: performances of identity in relation to the constraints of the discursive medium (the interrogation). What we learn from the filmed confession is the limits of film and of law to reveal the truth of the crime. This critical perspective undermines the state's assertion that filmed confessions unambiguously denote the defendant's voluntary recitation of his criminal act.

Download the entire paper here from SSRN.

[Cross-posted to the Seamless Web].

Jessica Silbey on Representations of Law and Justice

Jessica M. Silbey, Suffolk University Law School, has published "A History of Representations of Justice: Coincident Representations of Law and Film," in Representations of Justice, published by Peter Lang (ed. by Masson and O'Connor, 2007). Here is the abstract.

The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the Friedmans, suggests more then a trend; it suggests an inherent affinity between law and film. This article investigates this affinity, the cultural space it inhabits, and its destiny in terms of the evolving filmic culture and technologies of the twenty-first century.

Download the entire paper here.

Silbey on Videotaped Confessions and Documentary

Jessica M. Silbey (Suffolk Law School) has posted her article, Videotaped Confessions and the Genre of Documentary, 16 Fordham Intellectual Prop., Media & Ent. L. J. 789 (2006), on SSRN. From the abstract:

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, holds a fairly naïve view of film's indexical relationship to the lived world and abjures consideration of the contemporary trend in cinema.

Understanding the documentary as truth-revealing is a mistake, a mistake which can frustrate (if not undermine) the criminal justice goals of the legislation.

Whatever may explain the convergence of filmmaking in the precinct house and a penchant for mainstream documentary movie-going, the trends are shaping contemporary expectations about film in contradictory ways. Investigating these trends together exposes competing norms regarding film as a legal tool and as a knowledge producing discourse. It also situates the criminal justice trend in the context of a long history of filmmaking and critical spectatorship. In light of the growing use of film as a policing mechanism, better understanding of film as both an art and a legal tool is in order.