Video technology in sports adjudication: Part 1 – use in the courts
Published 09 April 2015 By: Craig Dickson
In this two part feature, the author investigates and offers critical analysis on the history and growth of the use of video technology in sports adjudication. Part 1 below will focus on the evolving use of video as admissable evidence in the courts, while Part 2 switches to video’s increasing uses and applications on the field of play itself.
The initial impetus to investigate the use of video in decision-making process both on and off the sports field came from the rather confused introduction of wider adjudication powers for the telvision match offical (“TMO” or "video refeeree”) in the Super XV professional rugby union competition. First introduced in the old Super 12 competition, the powers of the TMO were significantly widened from the beginning of the 2013 season even though weeks earlier such extension had been ruled out by the head of SANZAR (the administrative body for the Super 15 competition).1 Subsequently, there were in the early part of that season, a number of contentious decisions that threw the practical application of the expanded TMO powers into the spotlight, and there have also been instances where the technology itself has been called into question.
This author’s research revealed that the drive to incorporate technological advances for rule adjudication on the sports field mirrored the increasing use of technological devices in both law enforcement and legal proceedings. The growing use of technology to permit more accurate and timely decision making enhances and informs developments in the framework of procedural justice. Both in the courts and sporting arenas, there is an identifiable tendency to look for best practice elsewhere to indicate what the acceptable standards should be. As Drake J explained in Elliott v Saunders,2 a leading judgment in the development of negligence claims resulting from injury sustained on the sports field:
“Where [a wrong decision of the referee] has led, for example, to a player suffering serious disciplinary action affecting his future, it must surely be right to use the video recording to correct an injustice. If it shows a referee made a mistake ... then it would be wholly wrong not to use the video.”
This was a clear encouragement to the English footballing authorities to use video, while at the same time setting guidelines for its use – to help referees to make a definitive ruling and to correct injustices that have affected a professional’s future earnings. As a consequence, the English Football Association (The FA), as do most national sporting organisations, uses video footage to allow a player to appeal against a sending-off or a caution, and it also uses video to charge players with disciplinary offences where the referee has missed them.
This article will however concentrate on the use of video technology for in-game adjudication for what should be relatively uncomplicated decisions over scoring, game play and rules infractions. However, the acceptance of the use of video technology has been neither straightforward nor uncontentious – both in the legal and the sporting contexts. In fact, the use of technological advancements has been piecemeal as well as subject to numerous constraints and exceptions in the courts; a history that is mirrored by the contribution of technological developments in decision making on sporting fields.
Video evidence in the courts
The acceptance (or otherwise) of technological advancements in the courtroom originally concerned the admissibility photographs, possibly the first major advance in “recording” technology. Until the early 20th century (i.e. when photography was a very “new” technology”) photographic evidence was almost always limited to the issue of proving identity. The courts accepted that at least for the purposes of discovery, photographs were documents and therefore, liable to the same rules and exclusions as other documentary evidence.
Even so, the courts have in general, rarely conducted much discussion on the admissibility of photographs. Modern courts usually just admit any photograph if it bears a reasonable likeness to the scene it purports to depict. As a consequence, photographic evidence has come to assume a different role – the photographs were no longer being admitted merely as illustrative evidence but came to assume probative value as determinative of facts at issue: proof of matters which they depicted. By 1970, any objection that a photograph did not fairly represent the scene depicted went only to weight and credibility and not to admissibility. On similar principles, evidence offered by voice recordings was also held to be ‘documentary.’
When the new technology of ‘moving pictures’ developed it was clear that if the courts were prepared to accept photographs and audiotapes as documents then there could be little doubt that a moving film was also a ‘document.’ A direct rationale for this conclusion was provided by a Canadian court when admitting into evidence a motion picture that depicted one of the facts at issue. In Chayne v Schwartz,3 Challies J explained:4
“With the advance of science, new methods of proof became possible and should be admitted unless there is some reason to the contrary. Motion pictures are merely a series of related still photographs which are projected on the screen one after the other so quickly that an illusion of motion is achieved. Still photographs are received in evidence every day … and I can see no reason why accurate motion pictures should not be so received.”
Accordingly, moving films were to be treated in the same vein as still photographs. The court further held that as long as the pictures were a fair representation of the scene in question, and were not posed, they could be admitted into evidence. This was not merely to clarify oral testimony, but as evidence in themselves, subject to appreciation of the weight of that evidence.
This move in importance of firstly, photographs, then voice recordings and latterly video (moving images) from purely illustrative to probative, actual evidence itself has resulted in cases being decided more or less, on the basis of the video images alone.
For example, in Canada in R v Nikolovski,5 the Supreme Court upheld the conviction of the accused for robbery even though the determination that Nikolovski was the perpetrator had been established by the trial judge’s identification of him, based entirely on the judge’s viewing of the excellent quality, security video tape from the burgled store. Or, in the UK, in Taylor v Chief Constable of Cheshire,6 police officers had watched a video recording made by a store security camera of someone shoplifting an item and had identified that person as Taylor. The video tape was later accidentally erased, but the Divisional Court held that the officers’ description of what they had seen on the tape was properly admitted in to evidence: the police had in effect been placed in the position of bystanders who had witnessed the event.
Technological developments, particularly the advent of video evidence, continued the process of changing the role of “documentary” evidence from being merely illustrative to having probative effect in its own right. Photographs and films especially, were being treated as if they were extensions of human perception. Conceptually, when viewing any evidence a juror is always a witness of sorts.
Limitations of video evidence
However, because of the way that humans process images, particularly moving images, the admission of video footage into evidence is not without its dangers. For the triers of fact, the reading of written evidence or listening to oral testimony provides a moderation effect to aid understanding; the substance of what is written and the subjective view and perceived motivations of the witness are often unconsciously, taken into account. Even when listening to audio tape, inflection, signs of stress and extraneous noises all assist comprehension. However, visual images, especially moving images, are routinely accepted as objective depictions of reality – of what actually happened.
This has at least, been partially recognised in Canada where the developed principles for the admission of visual evidence have resulted in video evidence being excluded for either being “untruthful” or for its potential to mislead. In R v Maloney (No.2),7 both slow-motion video tape and a normal, true‑life speed tape of an NHL hockey game were tendered in evidence. Maloney, of the Detroit Red Wings, had following the game, been charged with assault causing actual bodily harm to the Toronto Maple Leafs’ Brian Glennie. The slow-motion scene was ruled inadmissible as it was:8
“neither consistent with nor in conformity with the reality of time and since time is one of the significant and relevant factors here, both in relation to the bodycheck and spontaneity of the movements of the accused and the lack of deliberateness, to show the jury a movie which grossly distorts the reality of time would be to introduce an element that is neither accurate nor true.”
The drawback is that the whole nature of visual perception as moderated through the lens of a (movie) camera is fraught with difficulty – difficulties that are magnified when not given due recognition in the court room. Additionally, the advent of digital image capturing techniques has multiplied the possibilities for manipulation of visual images many fold.
Images tend to have greater impact than non-visual expressions of the “same” information because pictures tend to be more vivid; they can convey more information than words alone enabling the viewer to understand more. Moreover, unlike words, which are recognisably constructed by the speaker and therefore, understood to be at one remove from the reality they describe, photorealistic images, video and film can appear to be caused by the external world without the taint of human mediation. Consequently, such images tend to be accepted as highly credible evidence of the reality they depict. It may be however, that increasing personal use of and familiarity with, digital recording media and the associated manipulation techniques might have a moderating effect in this regard as viewers gain an understanding of pictures as constructs, as texts to be actively construed rather than as mere reproduction of the external world.
The fact remains that when people scrutinise pictures that look real, they tend to believe that they have seen all there is to see and are disinclined to pursue the matter further. This sense of “communicative efficacy” is even stronger in time-based media such as film and video. Compared to words especially, visual communications tend to generate less counter argument and hence more confidence in the judgments they support. These underlying influences mean that visual evidence, by its very nature, is susceptible to being accorded greater probative weight than other admitted evidence – even where that other evidence may be of greater relevance or more determinative of the issue of fact in dispute.
However, it is not only the imperfections of human perception that are implicated here. The exploitation of the language of (narrative) film, alongside the remaining technical limitations of film production, also add to the interpretive complications for the triers of fact. In fact there are three enduring myths about film as evidence: (1) that film is objective and unbiased; (2) that its meaning is unambiguous and obvious; and (3) that film transforms a viewer into an eyewitness – all of which are highly implausible.9
Film is objective and unbiased
1. The myth of film was that it made spectators feel as though they were witnessing the event or the object in the state of being filmed, rather than seeing “reality” represented in filmic form. Far from reproducing the world unmediated, film/video, in fact, is a constructed medium – the camera always presents a certain point of view and a frame that includes some images and excludes others (by design or otherwise). Accordingly, the appearance of reality in films is an illusion based on conventions of representation, much like the convention of perspective in two-dimensional drawings or the conventions of light and dark in oil paintings. Such conventions produce images that resemble and represent reality, but are not reality in fact.
The meaning of film is unambiguous and obvious
2. (a) These conventions of representation also extend to a cinematic “grammar” that stems from the structure of a film’s editing. The positioning and juxtapositioning of film images generates logic where none existed before. This plays on the human tendency to create relationships and imagine connections between otherwise unrelated scenes -- what results is a perception of narrative where none may even exist. These editing techniques, when allied to manipulations of perspective (camera angles) and breadth of view (shot selection and focus) also imbue the resulting images with emotional content and meaning as the camera focusses the mind on particular aspects of the depicted narrative. The core of the “reality” myth is then, that while film appears to designate its audience as centred and all-knowing, it is the film itself that constitutes and influences the perspective to which the audience is subject. Thus all film is essentially fiction – it is shaped, feigned and created. Plus, all films have a point of view or a voice, whether conscious or mechanical.
(b) differing viewpoints which are directed by choice of shot, are also affected by the physical technology as well. The field of view of any camera lens can generate quite marked perspective distortion and long, telephoto lenses create an exaggerated decrease of depth.10 This illusion of a large compression in the appearance of spatial distance means that any motion of a person or object toward or away from the camera, appears to move faster or further than is actually the case. Of course, film makers also use these functions to help aid their particular narrative, a narrative that is conceptually as well as physically framed by the camera lens. Yet film remains a very powerful medium for making experience seem real.
Film transforms a viewer into an eyewitness
3. The primary danger is that filmic evidence can function to turn any spectators into virtual witnesses. Jury members watching an evidential video may forget the present reality of the courtroom to enter the past of a crime, or put aside their own identities to identify with an imagined witness. At the same time they may see the ‘re‑enactment’ of a crime as somehow more real than the original and their viewing of it somehow more legitimate than a mere witness’s account.
As previously outlined (R v Maloney), while some courts have recognised the problems that can arise from the manipulation of projected images, many courts continue naïvely to treat filmic evidence as a transparent window revealing the whole truth – as an unambiguous presentation of reality. Increasingly, video evidence is not being offered just as illustrative evidence to support and clarify other testimony but also as demonstrative and substantive evidence that by itself, tends to prove or disprove a disputed fact.
Moreover, filmic evidence is particular persuasive in making assertions in respect of the existence or non-existence of certain facts because of its perceived indexical relationship to reality11 – that is, the apparent direct physical relationship between the photographed object and the resulting image. Other assertions of fact that are offered in evidence are routinely tested for accuracy and bias through cross-examination. However, where filmic evidence is considered clear (i.e. unambiguous as to its meaning) and unbiased (i.e. presenting no falsehoods or prejudices), anybody watching it in a courtroom becomes a “virtual witness” and any further examination of the objective truth of the images is rendered redundant12 – an almost textbook example of the medium becoming the message.
In Part 2 of this article, we will move on to look at how evolving video technology and been increasingly employed in adjudication on the field of play itself.
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Craig Dickson is a senior lecturer in the Law School at AUT University in Auckland where he teaches Sports Law as part of the regular undergraduate LLB electives and he has occasionally appeared in front of sporting disciplinary tribunals. After obtaining an LL.M. at the Centre for Innovation Law and Policy, University of Toronto, he spent some years in private practice before taking up his current position. Craig’s other teaching and research interests include insurance law and intellectual property law and he was recently appointed as inaugural treasurer of the newly formed Asia-Pacific Copyright Association.