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:

Google it or Lose it?

Advancements in technology and changing societal norms and practices are factors that heavily impact the evolution of the law.  Certainly, no technological/societal advancement has had a greater impact on the law than the development of the internet and its ability to bring information into the living rooms of the general public. I have speculated with my class about how the internet may serve to bring a halt to one developing area of law.

At Common law, "Caveat Emptor" (Buyer Beware) ruled the area of real estate sales. Sellers had no obligation to disclose latent defects to a prospective buyer.  Certainly, a Seller was not allowed to make a false statement about the condition of the property or to lie in response to a  direct question, but the thorny area was how to deal with the failure to offer negative information about the property.  Under the doctrine of caveat emptor the seller's silence (failure to disclose defects) could not be the basis for a misrepresentation claim.  And, in some cases, even where the Seller has made statements about conditions ("Nope - no termite damage in this house") courts have been unwilling to assist a Buyer who relies on the representation without engaging in his/her own inspection.  However, the "modern trend" in the law has been to see more and more obligation placed on the Seller to come forward with known information that might impact on the demand for the property. We have all seen cases in texts such as:

Reed v. King: Seller failed to disclose that the house had been the scene of a murder a decade prior.

Stambovsky v. Ackley: Seller failed to disclose that the house had a reputation for being haunted - a reputation that the seller helped to create.

Hess v. Chase Manhattan Bank: Seller, a bank that had taken the property by foreclosure, failed to disclose a known, ongoing EPA investigation of the property for groundwater contamination.

But in each if these cases, the sales took place prior to the heightened prevalence of the internet (Approx 1981, 1989, and 1999 respectively).  If the seller's silence was material, then the buyer must also be able to prove reasonable reliance.  In the pre-Google search days, the murder, the haunted reputation or the investigation would not be readily discoverable by an out of town buyer. But today, a simple internet search on the property address would likely have turned up this information. Is a court now justifies in turning the responsibility back upon the Buyer to make reasonable internet inquiry on the object of a real estate purchase?  Courts place the burden on buyers to do reasonable home and pest inspections or suffer the consequences of not having done so. Will courts see information searches, no longer onerous, as the new norm in protecting against failure to disclose?

Oddly, with all the "before you buy a home..." advice sites on the internet, I couldn't find a single one that suggested doing an internet search on the address before buying.  Yet, when I recently looked at a condo for a potential purchase, the first thing I did after viewing the property was a google search.

Selling a haunted house:

Pest infestation:



Google searches:

Understanding The Misunderstanding

The violence and rhetorical tumult in the Middle East following the posting on YouTube of the video entitled "The Innocence of Muslims" affords a number of teaching opportunities. One that comes quickly to mind is the lack of universality in law and in basic legal philosophy. Teaching rudimentary U.S. constitutional principles to undergraduate students reminds one that even intelligent college students may not easily attain a full grasp on the concepts of free speech.  However, even if just through popular culture and everyday exposure, students do seem to understand that American Free Speech concepts protect expression even when the expression is hurtful to others.  As long as the speech is not certain to incite imminent violence at the time and place where it is made, even disgusting and distasteful speech is protected. 

However, this is not a universal concept. NPR broadcast an interview with Harvard International Law professor Noah Feldman in which he explains that government officials and educated persons, even in countries that embrace Free Speech principles harbor the misconception that the US Government may censor harmful or hateful expression. As a result, when the US took no action to remove or censor the offending video, the implication was that the US government was complicit or in support of the views expressed therein. The audio report is available here and provides an excellent source for assignment or class discussion in a Legal Environment class.  Here are some selected quotes from Professor Feldman:

"I had conversations with highly educated Tunisians — people high in the government — who were genuinely astonished to discover that, under U.S. law, we couldn't ban speech like that precisely because any incitement that might occur is distant in time, distant in place and not at all certain to occur. ...

"And it's actually a problem when people elsewhere actually think, including reasonable people, that the United States government must be complicit in something like the anti-Muslim film because we haven't prohibited it."

"In the U.S., we value the liberty of the speaker much more highly than either the dignity of the person who feels insulted or the state's interest in trying to avoid violent protest. ...

Professor Feldman also notes that American legal communities have discussed, whether the technological advances that have made global reach of communication more easily attainable should affect the American concept of time, space and imminence for incitement purposes.

This interview is a worthwhile resource on a current and complex topic in the law.

Justice Breyer ponders whether the internet changes the size of the "crowded theatre":