I’ve frequently written about how an attorney can use an iPhone to manage documents, photographs, videos and other evidence. What I haven’t thought about as much is clients (or opposing parties) using an iPhone to create evidence. Of course, people have been using cell phones to take pictures and capture video of crime scenes, torts, and other activities for a long time now, but now that we have a very good camera on the iPhone 4 along with easy to use tools for sharing those photos and videos, I suspect we’ll see more in the future.
I thought about this over the weekend when I read this post by Mike Masnick, the CEO and founder of TechDirt. The article discusses the Ninth Circuit’s opinion in Norse v. City of Santa Cruz, No. 07-15814 (Dec. 15, 2010), a case in which the plaintiff claimed that his free speech rights were violated when he was kicked out of a city council meeting after making a Nazi salute. In a concurring opinion, Chief Judge Alex Kozinski notes that it is clear that “Norse’s sieg heil was momentary and casual, causing no disruption whatsoever” and further notes “there’s no need to take my word for it” because a video of the incident is on YouTube. (Video is here.)
Masnick says “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.” I don’t know if that is quite right; the concurring opinion notes that the video is “also found in the record.”
Regardless, what struck me is how different it can be to read facts in a Statement of Facts and to actually be able to watch the video as if you are there. Of course, pictures and videos can be deceiving because of the angle of a photograph, events that occur off-frame, editing, etc. Even so, as more and more iPhones and other sophisticated smartphones get sold and essentially everyone carries a phone with them at all times, I’m sure that we will see more and more cases in which events in a lawsuit don’t have to be described, often by witnesses with inconsistent memories. Instead, we can just hit the play button on an iPhone.
This concurring opinion also from the Judge who recused himself from Obscenity trial after it became known that his “internal” postings of some salacious type images were able to be seen by the public…
http://articles.latimes.com/2008/jun/14/local/me-kozinski14
Mark,
What concerns me more is not the general usage of the video but the apparent appealable issue made by the judge going outside the record?
[Jeff responds: But Michael, it looks like the video WAS in the record, so the judge did NOT go outside of the record. Unless the video was only in the trial court record and not in the record on appeal, which I didn’t see references in the opinion although I suppose it is possible.]