Notes on 'Minority Report'.

• Author: Capers, I. Bennett
• Position: Legal Outsiders in American Film

1. Bennett Capers *

When I was first invited to participate in this symposium, Legal Outsiders in American Film, I initially thought of myself. I thought maybe I would be the outsider among the contributors. I have never taken a law and film course, let alone taught one. I certainly do not claim to have a background in film studies, unless having an unlimited plan with Netflix and occasionally frequenting art houses count. And although I have written in related interdisciplinary fields--law and literature, (1) and law and the visual arts (2)--I have not written directly about law and film.

The more I thought of the issue presented by this symposium, the more confident I felt that I had something unique to contribute. After all, although I have never taught law and film, I routinely use film as a pedagogical tool. When I teach criminal law, for example, I use film and television clips to illustrate criminal law concepts, to problematize those concepts, and even to raise larger issues about justice. And my criminal procedure students will attest to the fact that knowing every episode of The Shield and The Wire comes in handy in class. My Evidence course, thanks to the casebook I use, comes with its very own DVD of useful film clips. (3) Even in my Race and the Law class, I find myself turning to film again and again to illustrate how race is socially constructed and maintained.

In addition, as a former prosecutor, I have firsthand experience with using film as a predictive tool. Prior to any jury trial, I would invariably include in my proposed voir dire questions something along the following lines: "What are some of your favorite television shows and/or movies?" Fans of the television show 24 were, in my mind, good jurors for the prosecution. Fans of the film The Fugitive, in which Harrison Ford plays someone wrongfully convicted, were not.

Lastly, although I do not have a background in film studies, I am acutely aware of the work that film does. The film theorist Saul Morson has observed that film casts a "sideshadow" on reality, projecting onto the screen an alternative reality. (4) Film thus functions as a reminder that

[a]lternatives always abound, and, more often than not, what exists need not have existed.... Instead of casting a foreshadow from the future, [the medium of film] casts a shadow "from the side," that is, from other possibilities.... Sideshadows conjure [a] ghostly presence ... [in which] the actual and the possible ... are made simultaneously visible.... [A] present moment subject to sideshadowing ceases to be Ptolemaic, the unchallenged center of things. It moves instead into a Copernican universe: as there are many planets, so there are many potential presents for each one actualized. (5) Or as Austin Sarat puts it in his reading of Morson, "The moving image attunes us to the 'might-have-beens' that have shaped our worlds and the 'might-bes' against which those worlds can be judged and toward which they might be pointed." (6)

Morson is right, of course, but I want to suggest another effect that seems to be in play when it comes to law and order films, whether it be Film Noir, one of the many cop-buddy television shows or movies (Cagney & Lacey, Starsky & Hutch, Miami Vice, Rush Hour, Lethal Weapon, the list seems interminable), or more recent dramas like The Wire. The effect I want to suggest is a type of de-shadowing. There is the justice administered by the courts. There is also the justice that the courts imagine they are regulating. The moving image brings out of the shadows justice as it actually exists. I can think of no better illustration of this than the justice the courts imagine they are regulating via the Bill of Rights, our de facto "code of criminal procedure." (7)

For example, in Terry v. Ohio, (8) the Supreme Court interpreted the Fourth Amendment as permitting the police to conduct a limited detention and questioning of an individual (short of an arrest, which requires probable cause) so long as the officer has specific and articulable facts--i.e., reasonable suspicion--to believe that "criminal activity may be afoot." (9) The Court further held that if the officer also has reasonable suspicion that a person is armed and dangerous, the officer could couple the limited detention and questioning with a pat down for weapons: in common parlance, a stop and frisk. (10) In short, officers are free to stop and frisk individuals, but only if they first have specific facts to believe that the individual is engaged in criminal activity and is armed. (11) This is all fine and good, except no one really believes that this is how the police typically operate on the street, especially in poor, minority communities, where "Hey, you, come here" and stop and frisks seem to be the order of the day. Similarly, under Terry, an officer with reasonable suspicion that a person is armed and dangerous can frisk a person for weapons, but not for drugs. (12) Except we know that officers frisk individuals for drugs all the time.

Here's another: in Miranda v. Arizona, (13) the Court interpreted the Fifth Amendment as requiring officers to advise suspects of certain rights before engaging in custodial interrogation, and in Edwards v. Arizona, (14) made clear that once a suspect invokes his right to consult with counsel, all questioning must cease "until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." (15) The Court's rationale for adopting this bright-line rule was straightforward: "to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." (16) But none of us seriously thinks that Edwards v. Arizona has prevented the police from continuing to question suspects. The carrots are too plentiful. The sticks are too paltry. In short, there is the world of justice as imagined by the courts, and then there is the world of justice as it exists on the ground.

Law and order films are rarely fooled by the justice that the courts imagine is happening just outside their hallowed halls. Rather, law and order films tend to shed light on the world of justice that exists in fact. This is what I mean by a de-shadowing effect, because film brings into the open how the criminal justice system actually operates, and it makes for interesting conversation when I teach criminal procedure. We talk about justice as articulated by the Court. And then we talk about a scene everyone saw on The Wire, or The Shield, the night before. Lastly, we talk about personal interactions with the police. Even my students, almost all white, almost all privileged, see the disconnect between the law as envisioned by the courts, and the law as enacted in practice. They see that their experiences are more accurately reflected in film than in our casebook. (17) They also know that their own experiences often pale in comparison to the experiences of minorities and other outgroups, other outsiders. This, in part, is what film does.

II.

The film I want to focus on, to zoom in on, is Stephen Spielberg's Minority Report. (18) The story, though interspersed with complications, is at bottom a simple one, and is set up by the opening sequence. The year is 2054, the place is Washington, D.C., and homicides have been eliminated because of the "precogs," three siblings not only capable of seeing homicides before they actually happen but also communicating their visions to the District of Columbia police authorities. Their visions, which come to them in a dreamlike state and have all the disjunctions and distortions of regular dreams, are projected onto a screen--much the same way films are projected onto screens--thus allowing the police to arrest the would-be perpetrator before the homicide actually takes place. In other words, the police can make a preemptive arrest. Although the narrative features several conflicts, ranging from the personal (19) to the national, two major conflicts propel the story forward. The first can be categorized as a background conflict, a pre-conflict that exists before the film begins. There is about to be a referendum on whether to take the precog program national--for the moment it exists only in the District of Columbia. A conflict arises because the Department of Justice, represented by Colin Farrell's character, seems determined to prove that the precog system must be flawed in order to defeat the referendum. (20) In fact, Farrell's character, Witwer, the one lawyer in the film, functions as a type of legal outsider. He is the...