As surveillance cameras and other ubiquitous devices record more events in the world, appellate courts are being flooded with video and sound recordings, usually in digital form, as part of the record below. Such digital evidence offers substantial potential benefits in proving or disproving facts at trial. But that evidence can also pose associated challenges for appellate courts. Among other things, technological barriers, poor labels, and briefing inadequacies may hinder access to the recordings. In addition, the recorded footage may be incomplete, blurry, poorly lit, inaudible, skewed, or otherwise lacking. Those who watch and hear such digital evidence may be influenced by implicit or confirmation bias in interpreting its contents. And the recordings may take considerable time for judges and clerks to review. The rising tide of digital evidence also can have a profound effect upon the nature of appellate review. Customary deference may be inappropriate when recordings clearly contradict the lower tribunal’s factual findings on matters of consequence. And the interpretation of such evidence can provoke strong disagreements among the jurists within a reviewing court, as illustrated by two famous cases highlighted in this Article: Arnstein v. Porter and Scott v. Harris.
Authored by a longtime state appellate judge and evidence professor, this Article explores, in depth, the challenges posed by the “Appellate Digital Deluge.” It offers three resources to address the Deluge: (1) a proposed model rule to manage the appellate submission of video and audio recordings, (2) a checklist of factors to consider when courts of appeal review such evidence, and (3) a chart displaying an analytic framework of characteristics that bear upon the scope of appellate review in different procedural and evidentiary contexts.