March 1, 2004

Is it unethical for a documentary to exaggerate ambiguity for artistic effect? Harvey A. Silverglate and Carl Takei, writing in Slate, seem to think so:
[T]he makers of Capturing the Friedmans made a studied decision to minimize the historical context of the charges for the sake of drama. Had the filmmakers placed the case in full perspective and included the overwhelming evidence they had uncovered against the prosecution, the movie would have been less evenhanded but perhaps more responsible. Jesse spent 13 years in prison for crimes that almost certainly never occurred—and to which he was forced to plead guilty because the hysteria of the moment made a fair trial impossible. Jarecki continues to maintain that if the film had been less evenhanded the audience would not have thought deeply about where the truth lay. We think, however, that Jarecki underestimates his audience.

Silverglate and Takei are missing a key point about art. This is understandable, as both are involved in working to help persons they believe are falsely accused, as they note in their article. What they are missing is that the filmmaker (Jarecki) made a work of art about the unraveling of a family, showing the family's experiences as they were recorded at the time on home video. It is true that another documentary could have been made about the problems of false confessions and so forth, problems that the movie includes but with less development than Silverglate and Takei would like to see. A documentary of that kind might have run on TV, but would probably not have been released as a feature film, especially these days, since the hysterical period of tainted memory recovery is far in the past and has already been widely covered. By making an artistic documentary from a new perspective, with new techniques, and drawing the viewer into a painful mystery, Jarecki reached a new audience and stirred up new feelings about this old issue. Of course, the people in the audience were capable of understanding the documentary Silverglate and Takei would have preferred, but such a documentary, powerfully advocating the case of the accused, would not have drawn much of an audience at all unless it found some other entrancingly artistic approach to justify paying for and sitting through a feature film.

Importantly, the success of the film made it possible to release a high-profile DVD containing much of the extra material Silverglate and Takei wish was in the film.

UPDATE: David Bernstein (at the Volokh Conspiracy) has a post discussing the film from the perspective of an evidence lawprof.