Truth in Evidence: The Construction of Video Evidence in Judicial Decisions.

Abstract

This study focuses on the conceptualization of video evidence as constructed by judges in their written decisions in Canadian criminal courts and the impact this conceptualization has on understandings of truth. Recent years have seen substantial developments in video recording technology and in the cultural practices that support its use. Of particular interest to this study is the mobilization of video as a means of legitimizing truth claims. Using a qualitative content analysis of 52 recent (2005-2015) Canadian criminal court decisions, this study seeks to understand the way in which judges discuss video evidence in their decisions and the impact these discussions have on discourses of truth. The results of this analysis illustrate that the features typically associated with video evidence coincide closely with specific and longstanding discourses of objectivity, reliability, and credibility that are used to evaluate competing claims in criminal courts—discourses that have traditionally been developed with reference to evaluating testimony. Judges’ adoption of these particular criteria over any others results in video achieving an eminent position in the hierarchy of evidence before the courts. The way in which judges conceptualize video evidence both reflects the historic discourses that shape the current judicial approach to video evidence and (re)creates discourses that will be relied on in future. Given the influential role of courts as official arbiters of truth, the discourses adopted by judges have important implications both within and beyond the legal system.