Scott v. Harris: The Supreme Court's Reality Effect

Abstract

In Scott v. Harris (2007), the Supreme Court for the first time posted a video on its website, as an appendix to its opinion. The assumption of the majority in this 8–1 decision is that the video speaks for itself; only Justice Stevens suggests otherwise. Looking at the video ourselves, we may want to ask why the Court reacts as it does. I argue that the “reality effect” of the video overcomes analytic judgment on the part of the Court majority. And, further, that this will become a larger problem as videos of police–citizen encounters are promoted as self-interpreting evidence.

Keywords:

• police pursuit
• Fourth Amendment
• narrative
• videotape
• US Supreme Court
• Antonin Scalia
• “reality effect,” Roland Barthes

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author.

Notes

1. The interest of this question was suggested to me by a paper presented by Simon Stern, Professor of Law at the University of Toronto, at a Stanford Law School Conference on “Narrative and Metaphor in the Law,” January 2016.

2. See Roland Barthes, “L'effet de reel,” in Le Bruissement de la langue (Paris: Editions du Seuil, 1984), 167–74; English trans. Richard Howard, “The Reality Effect,” in The Rustle of Language (New York: Hill & Wang, 1986), 141–8.

3. The effect of viewing the video by a sample of 1350 Americans, and the diverse cognitive biases revealed in their interpretations, has been well studied by Dan M. Kahan, David A. Hoffman, and Donald Braman in “Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism,” Harvard Law Review 122, no. 3 (2009): 837–906. While the aim of the authors of that article is different from mine, we agree that the single interpretation claim put forth by the Court majority is untenable.

4. See http://mappingpoliceviolence.org/unarmed/.

5. See http://www.huffingtonpost.com/entry/black-people-killed-by-police-america_us_577da633e4b0c590f7e7fb17.

6. See https://www.washingtonpost.com/graphics/national/police-shootings/.

7. See Jerome Bruner, “The Narrative Construction of Reality,” Critical Inquiry 18, no. 1 (1991): 6.

8. I have discussed Old Chief at greater length elsewhere. See Brooks, “Law and Humanities: Two Attempts,” Boston University Law Review 93, no. 4 (2013): 1437–68, at 1451 ff.

Additional information

Notes on contributors

Peter Brooks

Peter Brooks is Sterling Professor of Comparative Literature Emeritus, Yale University, and Andrew W. Mellon Foundation Scholar at Princeton University. He is the author of Troubling Confessions: Speaking Guilt in Law and Literature among other books.