Judge's Ruling Says: Go Check Out The YouTube Video, Which 'Speaks For Itself'

from the go-judge-kozinski dept

Fri, Dec 17th 2010 5:34pm — Mike Masnick

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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Anonymous Coward, 17 Dec 2010 @ 5:52pm

I don't like the Nazi ideology in fact I do loath them, still the guy has the right to speak freely and without fear in a public forum, that is how much I believe in freedom of speech even though he is part of something that I don't like a bit.
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ChurchHatesTucker (profile), 17 Dec 2010 @ 6:03pm

What the...?
Common sense in the courtroom? Are these endtimes?
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Anonymous Coward, 17 Dec 2010 @ 6:14pm

Could it be that our legal system is finally beginning to catch up to common sense? It still seems to have a whole long ways to go though.
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Anonymous Coward, 17 Dec 2010 @ 6:16pm

Hitler (and his methods) always provide a source of humor for me too!
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Anonymous Coward, 17 Dec 2010 @ 6:18pm

Re: What the...?
I know, I'm just as surprised as you are. How much you want to bet that some appellate court won't overturn it though?
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ChurchHatesTucker (profile), 17 Dec 2010 @ 6:41pm

Re: Re: What the...?
Hell, they'll probably find youtube guilty of interfering with the judicial process.
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Anonymous Coward, 17 Dec 2010 @ 6:51pm

Judges seeking out additional evidence is not a good thing. How does the judge know this video is not faked or edited? Even if we accept the ridiculous assertion that videos are impossible to fabricate, what if this was a few pictures of the event? We've seen numerous times that photos can be manipulated and look 100% genuine with relative ease. To say that judges should seek out other types of evidence is a bad idea for numerous reasons:

- 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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Jesse Townley (profile), 17 Dec 2010 @ 6:55pm

Quick note
While I agree that the common sense approach is usually the best one, there's a flip side to this.

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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Anonymous Coward, 17 Dec 2010 @ 7:17pm

Re:
So photos and videos should never be accepted as evidence because they can potentially be fakes. That's great logic. Lots of evidence can be "faked" or falsely planted by either party but that's no excuse to not accept any evidence. Part of the judge's/juries job is also to evaluate the likelihood that any piece of evidence has been fabricated or falsely planted at the scene. They can evaluate the picture, evaluate how easy it is to fabricate such a picture, evaluate the available resources and time to make such a fabrication, and determine how strongly it should be weighed in context of all the other evidence. Is there reasonable doubt? Is there doubt beyond a preponderance of the evidence? What does the case require, reasonable doubt or a preponderance of the evidence (ie: is it a criminal or civil trail)? etc... It's part of their job to evaluate these sorts of things, to say that evidence can be fabricated is to conclude that no evidence can ever be accepted.
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Anonymous Coward, 17 Dec 2010 @ 7:19pm

Re:
and what I don't like about your criticism is that you act like you're the only one able to ask such questions as, "is this likely fabricated." Of course not, judges can ask these questions too, and so can juries.
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Anonymous Coward, 17 Dec 2010 @ 7:22pm

Re:
"-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."

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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Anonymous Coward, 17 Dec 2010 @ 7:26pm

Re: Re:
and, if the judge/jury doesn't have the competence to ask these sorts of questions and reasonably make and weigh these sorts of evaluations, then that judge/jury is probably competent enough to otherwise make a reasonable decision to begin with and shouldn't be serving in the first place. Such a lack of competence is likely to bring about a bad decision either way, adding more evidence for the judge/jury to evaluate the merits and weight of isn't going to make such a decision maker any less competent and capable of making a reasonable decision. They were incapable of making a reasonable decision to begin with.
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Anonymous Coward, 17 Dec 2010 @ 7:27pm

Re: Re: Re:
is probably not competent enough *
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Anonymous Coward, 17 Dec 2010 @ 7:28pm

If Norse showed you his ring finger, Tim wants everyone to know he was flicked off
I found the council meeting minutes, and apparently that day there were a number of agenda items about affordable housing before the city council.

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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Chris Rhodes (profile), 17 Dec 2010 @ 7:34pm

I Love Kozinski
I wish we had him on the supreme court. The guy is just awesome.
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GeneralEmergency (profile), 17 Dec 2010 @ 7:44pm

This is what happens...
http://www.youtube.com/watch?v=ZOssHWB6WBI

...when you feed the Hippies!

SERIOUSLY....DON'T FEED THE HIPPIES!
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Hephaestus (profile), 17 Dec 2010 @ 9:25pm

Re: Re: Re: What the...?
Robert Norse guilty of interfering with the judicial process will never happen. He is a fraking terrorist!!!
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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Aerilus, 17 Dec 2010 @ 10:18pm

Re:
logic fail. if its faked and submitted for evidence its still faked now it just has number attached so it sound all official and stuff.
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jjmsan (profile), 17 Dec 2010 @ 10:44pm

Re: Re:
Nice straw argument. Where does he say that photos and videos should never be accepted as evidence. The rest of your replies also follow that pattern.
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Anonymous Coward, 17 Dec 2010 @ 11:11pm

Re: Re: Re:
"Where does he say that photos and videos should never be accepted as evidence."

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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Anonymous Coward, 17 Dec 2010 @ 11:47pm

Re: Re:
No, not at all. Clearly, you have no idea how a court actually works.

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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Anonymous Coward, 17 Dec 2010 @ 11:59pm

Did Judge Thomas use the Youtube clip, to determine his initial ruling ?

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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Darryl, 18 Dec 2010 @ 12:18am

Re: Quick note
dead rigth, the judges and and juries are not tasked with building a case for the defense or the prosecution.

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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Anonymous Coward, 18 Dec 2010 @ 12:26am

Re: Re: Quick note
You... Mad... Funny, though.
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Some Guy, 18 Dec 2010 @ 1:06am

Re:
He was not a fascist, nor was he supporting the Nazi party. He was jesting the city council, in a sense calling them fascists, because they would not allow a particular activist to fully speak their turn. Please hold comments until you know the full story.
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Anonymous Coward, 18 Dec 2010 @ 2:21am

Re: Re: Re: Quick note
Mostly he is annoying not funny.
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The eejit (profile), 18 Dec 2010 @ 2:37am

Re: Re: Quick note
heh. Back to normal now.

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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interval (profile), 18 Dec 2010 @ 4:37am

Re:
Really? Mass murder is funny to you?
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Freak, 18 Dec 2010 @ 5:00am

Re: Re: Re: Re:
Not that I agree with him, or disagree, but:
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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Freak, 18 Dec 2010 @ 5:04am

Re: Re: Re:
If the judge introduced it, and both parties got a chance to review it before it was used?

Besides both parties having the opportunity to examine it, are there any other methods used to ensure its authenticity?
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harbingerofdoom (profile), 18 Dec 2010 @ 5:57am

Re: Re:
so, its okay to actually BE a nazi and your ideals and expression of them is protected....

...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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Anonymous Coward, 18 Dec 2010 @ 6:33am

Judges should never "add evidence" to a case. Juries should not bring in outside evidence. The case should be judged on it's merits based on what is presented, nothing more.

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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Christopher (profile), 18 Dec 2010 @ 8:28am

Re: Re: Re:
Actually, it is free speech, unless you are calling for physical violence against a group of people.
THAT is when you have crossed the line.
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Christopher (profile), 18 Dec 2010 @ 8:30am

Re:
Destroying the adversarial system might not be so bad, to be blunt.

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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harbingerofdoom (profile), 18 Dec 2010 @ 9:15am

Re: This is what happens...
its not feeding hippies that i really worry about....
(see avatar)
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Anonymous Coward, 18 Dec 2010 @ 9:26am

Re: Re: Re: Re: Re:
I have no problems with the requirement that both parties should have the opportunity to examine and criticize the evidence.

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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Anonymous Coward, 18 Dec 2010 @ 10:00am

Re: Re:
The old slippery slope. What happens if the judge adds evidence in every trial he works to support his political or social beliefs? What if he adds in pro-christian videos or adds pro-life videos to a trial relating to abortion?

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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DCX2, 18 Dec 2010 @ 10:14am

Re:
An otherwise cogent argument ruined by Mike Derangement Syndrome.
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Anonymous Coward, 18 Dec 2010 @ 11:10am

Re:
In this situation Robert Norse "was unable to present evidence due to "procedural irregularities,""

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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Anonymous Coward, 18 Dec 2010 @ 11:12am

Re: Re: Re:
A judge who will "add evidence" based on their political opinion/bias for the sake of providing an opinion based on his political position is likely to provide an opinion based on her political opinion regardless. The problem, then, is with the judge, not with whatever evidence the judge introduces.
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Jesse Townley (profile), 18 Dec 2010 @ 11:24am

Re: Re: Quick note
Whoa, to be clear, I disassociate my comment from the anti-TechDirt comments in this post.

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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Jaszmin (profile), 18 Dec 2010 @ 6:16pm

Limewire Disappears, So What, Youtube is better
I read laments about the demise of limewire, but Youtube is the simple way to retrieve mp3s of the rarest songs on the internet anyway and you can get them faster. Perhaps four years ago, clever folks on the net figured out you could simply plug the official artist - title.mp3 formula into google and the search engine would find every instance of that song anywhere on the net. Many times, that would be the file and it was downloadable. This was about the same time that email lists began exchanging information on large compilations that could add to over 1,000 songs downloadable from a single online platform like Sendspace. In the time since, Google has bought Youtube, and now Youtube is the place to look for rare songs that can be transformed into mp3s by simply playing them back on one's computer, using freeware to make an mp3 copy. While I read continuing reportage about the decline of Limeware as a search engine, or the attempt to resuscitate it by hackers, I never read a line about Google's insitutionalization of MP3 collecting at Youtube. What gives?
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David Beauvais (profile), 19 Dec 2010 @ 12:02am

Two points:

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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abc gum, 19 Dec 2010 @ 8:32am

Re:
But we can not let the facts get in the way of a good rant.
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Anonymous Coward, 19 Dec 2010 @ 9:59am

Re: Re: Re: Re:
If this is the case, the problem is with the judge and the system that would allow them to so directly tamper with the adversarial system.

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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V, 20 Dec 2010 @ 6:51am

Dangerous
This is a very dangerous precident. As an artist and someone who is very good at doctoring photos with Photoshop, I can tell you that searching the internet for evidence is possible the most stupid, ignorant and insane thing to do if you are deciding someone's fate.

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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Willton, 20 Dec 2010 @ 4:54pm

Re: Re: Re: Re: Re: Re:
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.

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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Willton, 20 Dec 2010 @ 4:56pm

Re: Re:
and what I don't like about your criticism is that you act like you're the only one able to ask such questions as, "is this likely fabricated." Of course not, judges can ask these questions too, and so can juries.

Well, allowing judges to find evidence on their own prevents litigants and juries from doing so.
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Willton, 20 Dec 2010 @ 5:00pm

Re: Re: Re: Re:
Besides both parties having the opportunity to examine it, are there any other methods used to ensure its authenticity?

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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Anonymous Coward, 21 Dec 2010 @ 9:24pm

Re: Re: Re:
"Well, allowing judges to find evidence on their own prevents litigants and juries from doing so."

How?
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Anonymous Coward, 21 Dec 2010 @ 9:25pm

Re: Re: Re: Re: Re: Re: Re:
"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."

Why?
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Anonymous Coward, 21 Dec 2010 @ 9:28pm

Re: Re: Re: Re: Re:
IOW, the answer is no, unless the documents are officially published by a government agency/entity. IOW, there is no good reason why the youtube videos shouldn't be acceptable evidence, just that some bad laws might say so.
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garrett, 29 Dec 2010 @ 1:45pm

I love this line!
Check out the line on page 20089 (don't understand the page numbering but oh well) near the end of the first paragraph:

"But, unlike der F�hrer, government officials in America occasionally must tolerate offensive or irritating speech."

I like this judge and his sense of humor!
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