Eyewitness Observations

Do eyewitnesses really see what they think they see?

CSI Effect

An earlier post contained a detailed description of the CSI effect.  But no one captures a concept with the humor and insight of John Oliver.

Trump Seeks to Exclude His Prior Statements From the Trump U Trial

Donald Trump's lawyers have filed a motion in the pending class action case over Trump University to exclude from evidence any statements made during the presidential campaign, including his own. The case is scheduled to go to trial in November and Trump's lawyers argue that all the negative statements about Trump made by political rivals, and apparently all of his own statements in defense, are irrelevant and prejudicial.  Most legal commentators agree that the judge is unlikely to enter such a sweeping order and will likely wait to rule on individual offers of proof during trial.

Certainly, juries should not have to wade through irrelevant material and undue prejudice must be avoided in every trial.  But isn't a party's motion to exclude his own prior statements a bit of a red flag?

Ironically, Trump previously tried to keep evidence from the Trump U case from being released into the presidential campaign.  It was the judge's order allowing the release that caused Trump to attack the judge's impartiality because of his Mexican Heritage - a ploy that harmed his political fates.

Video Evidence

Cellphones are everywhere. But to what extent should cellphone videos be admissible as evidence in court? How do we guard against editing, enhancement and modification?  What do we see in these videos?

. . . It's What you Can Prove in Court.

An earlier post employed a movie clip from the movie, Law Abiding Citizen, featuring a prosecutor's explanation that, "it's not what you know, it's what you can prove in court" to explain to a victim's father the agreement to a plea bargain for her accused killer.  That story was fiction.  This story is fact.

In Kansas, a man originally charged with murder for severing the head of an acquaintance with a guitar string was sentenced to just over 4 years in jail following a plea agreement to a reduced charge of involuntary manslaughter.

According to the Topeka Capital Journal:

On March 14, 2014, a former girlfriend of [the defendant] testified he told her he killed [the victim], by using a guitar string to sever the victim’s head, then disposed of the body and kept the head in a bag. A part of the victim’s skull was discovered March 24, 2012, at a house in rural Carbondale in Osage County when [a woman] who lives with . . . the defendant’s father, said she was searching for mushrooms. Instead, she found the top of [the victim’s] skull. 

However, as it came time to proceed to trial: 

Other than a portion of the victim’s skull, prosecutors didn’t have the victim’s body, the murder weapon hadn’t been recovered, not all the prosecution witnesses were available, and prosecutors faced “credibility issues” with a major witness, [the prosecutor] said.

Not suprisingly, the family of the victim was outraged.  But, "it's not what you know, it's . . . "

Code Duello, Troglodyte Style

The videos available at this Huffington Post site nearly defy description by rational humans. The headline for the post is: "Girls' Fight Ends With Shovel to the Head." True to the headline, an 8 second video clip is shown where a girl gets a shovel to the head.  It looks like a classic case of civil battery.  But the 8 second clip is an outtake from an 8 minute video, also shown, where these two fine examples of American youth conspire to engage in a duel of fisticuffs while their earnest "seconds" stand outside the circle videotaping the exhibition for sharing on the internet.  The longer video has been taken down from youtube but is still available on the Huffington Post site. The longer video raises questions of consent that may provide a defense to a battery claim. How far does the consent go?  Does agreement to a duel with fisticuffs include use of a weapon? (one of the "seconds" even makes a similar query on tape).   It appears that the shovel wielder was earlier surprised when she was kicked by the shovel-to-the-head victim.  Did the kicking escalate the level of consent beyond the implied agreement upon fisticuffs?

What do these videos teach about the use of videos in court?  The 8 second video and the 8 minute video tell very different stories. Does the comparison of the two videos give support to the concerns expressed by law enforcement officers when they are videotaped - that the video shown or taken may not accurately portray the context of what is shown?

Warning! There is saucy language in the longer video!  As you might imagine, the verbal discourse between these aspiring Rhodes scholars and their friends may not be suitable for a classroom.  But, the language does impact upon the issues.

 UPDATE: The 8 second video has been removed from the Huff Post site, but click here to see a re-posting at vine.

Click here or on the image below to be taken to the Huffington Post report:

Question of Law or Fact?

Here is an interesting juxtaposition of articles.  In a trial in Michigan challenging the constitutionality of Michigan's state constitutional amendment barring same sex marriage, expert testimony has been elicited that same sex couples can be competent parents:

David Brodzinsky, an expert in adoption and foster care and a former Rutgers University professor, said there are no "discernible differences" in children who are raised by same-sex couples and youth raised by heterosexuals.

"It's not the gender of the parents that's the key. It's the quality of the parenting," said Brodzinsky, based in Oakland,Calif.

At about the same time, in a brief filed in the 10th Circuit Court of Appeals in a case where a US District Court judge struck down Oklahoma's same sex marriage ban, a legal argument was advanced claiming that same sex marriage is bad for children. 

"Marriage encourages mothers and fathers to remain together and care for the children born of their union," the group's 93-page filing said. Severing the link, it said, "would powerfully convey that marriage exists to advance adult desires rather than serving children's needs."

Citing a court opinion from 1888 — 19 years beforeOklahoma's statehood — Alliance said marriage "is the foundation of thefamily and of society, without which there would be neither civilization norprogress," and cited a 1978 ruling that said traditional marriage was"fundamental to the very existence and survival of the (human) race."

So, is the effect of same sex marriage on children a question of fact or of law? 

Michigan case:

Oklahoma case:

More "Seeing is not Believing"

I guess I am like most people in that intellectually I realize that photographs and videos that we see in mass media campaigns or in entertainment media are altered to make the people look "better," or less flawed. Yet, emotionally, I am offended by this. I have previously written about enhanced visual marketing as being deceptive, perhaps unlawfully so. I have written about how the ease with which videos may now be edited calls into question the evidentiary value of any video evidence.  I imagine the same goes for photographic evidence.

This article provides another example of the ease with which images in a video can be altered to show us something other than what really existed.

Aren't there deleterious social effects? Isn't there a need for regulation, here?

Is Seeing Still Believing?

Technological advances have paved the way for video cameras to be everywhere. The public has become accustomed to seeing video evidence of nearly everything that happens. This week, a camera on the helmet of a motorcycle rider captured tragic events when a motorcyclist appeared to intentionally cut off an SUV on a New York highway.  The frightened SUV driver pulled away in traffic tragically injuring one of the other motorcycle riders.  The SUV was chased into the streets of New York where the driver was pulled from the vehicle and beaten.  Much of it was captured on video. Now, with criminal charges pending, at least one defendant claims that what we see in the video is not actually what happened.

Citizens have been arrested for making cell phone videos of police officers publicly engaged in the course of their duties.  The concern? The videos can be altered or edited to portray something other than what actually happened.

Professors in classrooms have been the victim of edited videotapes portraying their classroom lectures as something that they are not.

The videos below seem to be evidence of amazing feats. Yet, they are only illusions. If these illusions can be created by just about any bright techie, then the value of video evidence must be scrupulously scrutinized in court. Even proof of chain of custody is not going to be enough if anyone in that chain possessed the ability to make alterations.  When it comes to compelling evidence, technology giveth and technology taketh away.

Tumba Ping Pong Show video:


Here is the story de-bunking the authenticity of the above video.

Other amazing edited videos from the Tumba Ping Pong Show:

"It's Not What You Know, It's What You Can Prove in Court"

Students seem to be quite familiar with the movie Law Abiding Citizen and from time to time send me clips to illustrate a point.  I have not seen the movie, but from some of the scenes that I have viewed there seems to be a lot of action and swearing. The courtroom scenes that I have viewed exhibit that liberties have been taken in portrayals of the legal system.  Yet, the short clip linked below rang true for me.  If it speaks to students, all the better.

Click HERE or on the image below to see the video.