Professor Blocher at PrawsBlawg makes a fantastic point that amazingly combines sports and appellate review: Why aren’t instant replays reviewed de novo?
Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call? Why not review them de novo? An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review—primarily, the relative competence of the factfinder—absent in the context of instant replay?
Why should the Replay Booth see “conclusive” or “indisputable” evidence. While a trial judge can observe the demeanor of witnesses in ways an appellate court cannot, instant HD replays from every conceivable angle provide the appellate referee with a better perspective than the referee on the field.
Also check out this article called Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review
I love when sports and the law intersects. This usually only happens when athletes (or their spouses, ahem) break the law, so this instance is refreshing.