Judge's Ruling Says: Go Check Out The YouTube Video, Which 'Speaks For Itself'
from the go-judge-kozinski dept
I don't always agree with Judge Alex Kozinski, though I'm quite frequently entertained by him (and, on balance, I probably do agree with him pretty often). Eric Goldman points us to a recent concurring opinion (pdf) by Judge Kozinski in a case involving a guy who was kicked out of a city council meeting for giving a Nazi salute, and then claimed his free speech rights were impeded upon. The case itself is not very interesting. But what is interesting is that, in his concurring opinion, Kozinski points out that even though the guy in question, Robert Norse, was unable to present evidence due to "procedural irregularities," since a video of the events in question were on YouTube, you could just watch it there, and then linked to the video in question:I join Judge Thomas's opinion because it's clearly right. I write only to observe that, even after the procedural irregularities that deprived Norse an opportunity to present evidence, it's clear that the council members aren't entitled to qualified immunity. In the Age of YouTube, there's no need to take my word for it: There is a video of the incident that I'm "happy to allow . . . to speak for itself." Scott v. Harris, 550 U.S. 372, 378 n.5 (2007); see http://www.youtube.com/watch?v=ZOssHWB6WBI (last visited Nov. 16, 2010).He then goes on to discuss the case. However, this may be the first time that I can recall a judge noting that even without official evidence being entered, you could just go watch the events in question on YouTube. We've had a few (sometimes heated) discussions around here concerning the rules of evidence and whether or not juries or judges should be allowed to seek out additional evidence like this -- and I'm glad to see Kozinski not just do so, but then point out to everyone in his concurrence how braindead obvious it is that those judging the case should see the video.
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Filed Under: alex kozinski, evidence, youtube
Companies: youtube
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...but its not okay to call a political body facists because of their actions and use nazi centric symbolism to make your point? somehow thats not allowed to be protected as free speech also?
does not make sense.
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THAT is when you have crossed the line.
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What the...?
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Just like Jullian Assange. Just like Biko. Just like Bono. Just like anyone who speak out against the PTB.
I mean what is this world coming to if we don't squash hope and dreams.
FU all ...
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- The "evidence" could be faked (even videos). The opposing party has a right to verify the authenticity of the evidence.
- The evidence could be tampered with. Police follow procedures to prevent evidence from being tampered with or contaminated. The opposing party has the right to verify that the evidence was handled properly. This cannot happen if you allow the judges to go find "evidence" outside of the courtroom.
-The "evidence" could be biased or wrong. For example, a forensic "expert" that some judge finds on the internet could easily be some idiot with no education or relevant experience spouting nonsense onto an internet message board.
-Evidence on the internet could be changed, manipulated, or disappear during the trial. Youtube could delete the video, the user could replace the video with an edited one, etc.
The solution is to introduce the video itself into evidence. There's a reason procedures for evidence handling exist.
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If judges can't seek out "additional" evidence because such evidence can be faked then why should they be exposed to any evidence at all, since any evidence can be faked?
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They shouldn't seek out additional evidence because the evidence that is handled officially, through the court, is guarded to ensure, as much as possible, against fabrication.
The evidence on youtube, on the other hand, for example, is not.
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How else is the evidence that is handed "officially" guarded to ensure against fabrication? I have no problem with the requirement that any evidence submitted by a third party goes through scrutiny by both parties and any expert opinions that are required that can be submitted over to the judge/jury to consider.
Often times judges do have to make decisions on whether or not a contract was signed or whether the signature was forged.
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Well, then you should be against any sort of submission of evidence that does not conform with the Federal Rules of Evidence, or a state's counterpart thereto. Allowing judges to cite evidence not in the official record erodes the public's confidence in such judges being able to perform their primary function.
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Why?
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Well, allowing judges to find evidence on their own prevents litigants and juries from doing so.
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How?
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Again, you're not the only one who can ask these sorts of questions and make these evaluations. Others can as well. Stop thinking you're special.
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When evidence is introduced, both parties have the opportunity to examine it. Thus, someone introduces a piece of faked evidence, the other party examines it and determines that it's a forgery, and then raises objections and the evidence gets thrown out.
Allowing the judge to introduce evidence and immediately apply it to a trial without a chance for either party to review it first is absolutely insane.
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Besides both parties having the opportunity to examine it, are there any other methods used to ensure its authenticity?
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Yes: if it is self-authenticating under Rule 902 of the Federal Rules of Evidence. However, that's mostly reserved for documents officially published by a government agency or entity. YouTube videos do not fit within Rule 902.
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Quick note
A judgement process in an antagonistic legal system (i.e. 2 sides presenting evidence against each other) depends on whatever the 2 sides bring. If they screw up & don't present evidence or are able to surpress damaging evidence by the opposition, then that's all the Judge and/or jury sees.
The reason this is important is that the controlling authority (Judge or Hearing Officer) vets the evidence as to its trustworthiness. It keeps jurors from seeing evidence that is either completely false or easily misconstrued. (See every red herring in any mystery novel ever for examples of the latter!)
It can be frustrating- I serve on a municipal body that hears appeals and sometimes we're constrained by the rules of evidence. What I would consider "fair" is rejected because our hands are tied by the legal language & various court decisions.
It's not like other systems where the Judge does the investigating (I know Spain has this system for some things). I don't know how evidence is handled in that system- like, can everyone bring evidence- lawyers & the Judge?
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There is a very good reason why they are not supposed or allowed to do that.
It's very obvious, (to everyone exept Mike).
Its also 'common sense'
Could you imagine a Mike designed, and maintained legal system !!! oh my....
Im sure it would be called the "whats mine is mine, and whats your's is mine too" system.
P.S. How come you web site STILL sucks NARDS Mike ?
when are you going to fix it, or do you like having the slowest, lest stable web site on the net ?
(it all started with you added that stupid stats bar..
Dont know what you did, but you either fucked up badly, or you're running on a linux server !
Either way, its an embarrasment for a supposidly technically savvy web site. It is freaking hopeless.
(it took over 10 attempts, to type the word 'freaking"///
FIX YOUR WEB SITE MIKE...... !!!!!!
Or dont you have the technical skills? or cant you find where to steal it from
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What Mike is pointing out is that the judge noted that the incident was online with a Harvard reference in the summary.
1/10.
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I enjoy reading the posts and the subsequent comments, and often link them to my workplace's facebook page (Alternative Tentacles Records, hint hint).
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If Norse showed you his ring finger, Tim wants everyone to know he was flicked off
The man in question is the one wearing the red shirt. The main thing is that it was an incorrect (used the wrong arm) so it doesn't qualify as a "Nazi Salute". It seems the Mayor didn't even see it.
It was brought to the attention of the council by Tim Fitzmaurice, who interrupted the proceedings to complain, and insist that Norse be removed from the chambers.
It seems the “interruption,” or disruption, is actually caused by the council member, and not Norse.
I can't tell for sure if this is the agenda from the meeting, but things line up-- A redevelopment discussion on the agenda for affordable housing. With Norse being a "homeless advocate" the two things line up.
http://sccounty01.co.santa-cruz.ca.us/bds/Govstream/ASP/Display/SCCB_MinutesDisplayWeb.asp?Meeti ngDate=3/12/2002
Also, it appears to been reported that no one present was Jewish, but to round things out, Tim identified it as a Nazi Salute, but was actually the wrong hand. It was probably more opportunism on Tim's part than anything else.
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I Love Kozinski
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This is what happens...
...when you feed the Hippies!
SERIOUSLY....DON'T FEED THE HIPPIES!
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Re: This is what happens...
(see avatar)
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You do know that this is just a concurring opinion
which only means, "yes, I agree with the other judge's ruling".
So ??
concerning the rules of evidence and whether or not juries or judges should be allowed to seek out additional evidence like this
Judges and juries are still not allowed to seek out additional information, for the concuring agreement, it is allowed, as the judgement has allready been made.
This judege is simply saying he agrees with the ruling, he himself is not bound by the rule of court law and proceedings, he just stated if he agreed with the ruling or not.
It had nothing to do with the youtube video, and it has not been established if that Youtube video was used by the prosecution in the actual case.
Disregarding that, it is not the judge or the jury who is charge with building a case for the prosecution.
That is kind of not allowed, as you should well know Mike.
NO,, the prosecution provides the evidence, to prosecute, the judge then determines if that evidence can be submitted or not. (based on its legality).
It is not up to the judge, to conduct the investigation, gather evidence, and build a case for the prosecution.
Nor is that the job of the jury... you have to be kidding if you think that is what judges and juries are supposed to do.
NO Mike, sorry but only a moron would think the judge and the jury are required to either build a defense or prosecution case for the the person in court.
That is why, if it is found that a jurer is seeking addition information that has not been accepted as evidence in court, or they go 'to the scene of the crime' etc that is an illegal act, (unless conducted officially by the court).
But you cannot do you're own home grown prosecution if you are a judge or jury.. But I guess, when it comes to copying files and the internet.
As mike does not care about due process, just that he can download his illegal files and appoligise for the law breakers.
Its amusing to see.. or sad, depends.
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it destroys the adversarial system. A judge adding in or referencing outside material has negated the chance of challenge by the opposing side. Further, it makes it clear that the judge is on one side or the other.
If anything, this would look like a slam dunk easy appeal, as the judge appears to have worked for only one side.
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The fact is that if a prosecutor/lawyer had put this into evidence, it could have been viewed by the jury.
Really, I would automatically do that for anything where there was videotaped evidence if I was a prosecutor or defense attorney.
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The judge is suppose to be impartial, and the jury (or judge) is suppose to work from the evidence presented.
If the defendant thinks he got a raw deal because his attorney failed to respresent him properly, that is something to discuss on appeal.
The judge getting involved like this is clearly reversible error, making the entire trial worthless. That is your tax dollars spent for nothing. Feel better?
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Even the most biased judges will have a hard time ruling based on their personal preference if there is nothing to support their judgement. They would likely find themselves tossed out on their biased behinds pretty quickly.
If you allow them to "add" evidence in, or use evidence not in the case to make a decision or to support a later appeal, you have tossed the system out completely. They are no longer judges, they become investigators, expert witnesses (to verify that their own evidence is valid), and opinion maker. It's wrong on so many levels.
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He probably should have been able to add evidence or at least let the judge determine if the evidence can be added. Otherwise, who is to judge what evidence should be included and why?
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Limewire Disappears, So What, Youtube is better
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1. The youtube video was admitted into evidence by agreement of both sides in the trial court. Kozinski did not go outside the record.
2. Robert Norse is not a Nazi. He made a mock gesture protesting the mayor's cutting off of oral communications.
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Dangerous
Imagine that me - or people even better - hired to find photos of you and doctor them to make you appear to be talking with known felons.
I can EASILY make photos that a laymen can't tell were doctored, and people better than me can make photos that that even an expert would have problems distinguishing.
Is that really what you want your freedom dependant on?
There is a reason for the rules of evidence. Experts qualify evidence and give expert testimony that evidence is authentic. Sure, it can still be fabricated, but at least there is an effort to make sure that the evidence against you is in fact legitimate.
There is no checks and balances on the internet. In 30 minutes, I can have a website, social media site, blog, etc. in anyone's name with whatever I want on it - including doctored pictures.
Is that REALLY what you think is cool? That judges and juries can go onto the web and find this completely fake site with incriminating quotes, etc.
If so, you are incredibly naive to what is possible with technology and I hope you never find out how incredibly easy it is for those with skill to doctor things - photos, movies, websites, even social media sites.
Trust no one and nothing.... not even what you see with your own eyes.
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I love this line!
"But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech."
I like this judge and his sense of humor!
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