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.

Filed Under: alex kozinski, evidence, youtube
Companies: youtube

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  1. icon
    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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