5 ms·

Correct. If you are filming someone, be aware that your video may be used as proof in court - for example, to prove that a person was indeed resisting arrest.

by hkai 6y ago

Correct. If you are filming someone, be aware that your video may be used as proof in court - for example, to prove that a person was indeed resisting arrest. It's best to not release it to anyone except to the victim's lawyers who will make sure the video supports their case instead of undermining it.

belorn 6y ago
Please elaborate, are you saying that resisting arrest is a law that should not exist even in the case where it can be proven?
JoeAltmaier 6y ago
Only unethical lawyers? Suppressing evidence can get them disbarred.
- curryst 6y ago
  Ianal, but I wouldn't think the defense attorney would be required to share that? Wouldn't it violate your clients right to not self-incriminate? The prosecution is definitely not allowed to suppress evidence that would demonstrate someone's innocence, but I don't think the same is true of the defense.
  - bzbarsky 6y ago
    Also not a lawyer, but as I understand it, both the defense and the prosecution tell each other and the judge what evidence they plan to bring; unlike crime shows, you generally don't spring surprises in court. In this case the defense would say "we have a video that shows we are innocent" and the prosecution would then request a copy of the video, and a warrant to acquire it. Providing said video doesn't seem any more self-incrimination than the prosecution asking for a warrant to get written evidence that is in possession of the accused, say, though the line there might start getting blurry if the video is something routinely filmed from the accused's viewpoint. But if it's filmed by a third party, I doubt the self-incrimination provisions would extend to it in any way...
    - curryst 6y ago
      Right, that's discovery as I understand it. But why would you, as the defense, plan to present a video that demonstrates your guilt? If you aren't going to present it, it isn't part of discovery. The prosecution is required to share material that undermines their own case under the Brady Rule [1], but the defense does not bear the same burden as far as I know. In fact, the defense is not even required to request or subpoena the exculpatory evidence; the prosecution is expected to share it of their own accord. Which typically means the prosecution just shares everything they have, in case something turns out to be exculpatory (the Brady Rule is still in play even if the prosecution is unaware they have the evidence). My take is that this situation applies to evidence the defense has acquired. I don't think the _defense_ is required to share it voluntarily (although it could probably still be subpoenaed if the prosecution was aware of its existence). I.e. if Joe Shmoe was being charged with burglary, and someone sent his a lawyer a video of him committing the crime, his lawyer is not required to disclose the existence of the video. If the prosecution found out that it existed, they could still subpoena it. Although I don't know if you could subpoena it from Joe Shmoe, that's beyond my limited reading. You could definitely subpoena it from whoever sent it to the defense, as their right against self-incrimination doesn't apply. [1] https://www.law.cornell.edu/wex/brady_rule https://www.law.cornell.edu/wex/brady_rule
      - JoeAltmaier 6y ago
        If the prosecution isn't make aware of its existance, the defense attorney is vulnerable to being disbarred. That's a lot to ask, for one deadbeat client. A good defense lawyer would say "If that video doesn't obviously clear your name, then don't show it to me".
        curryst 6y ago
        I went on a Google search for prior case law, because this piqued my interest. Everything I can find says that they are not required to disclose evidence, with the exception of 1) things they intend to use in court 2) physical evidence. The BAR seems to agree [1], there is no mention of disclosing evidence other than what you intend to present in court. [2] also notes that being required to disclose physical evidence is in contrast to the 5th amendment, which indicates to me that most evidence is not required to be disclosed under the 5th amendment. I am unsure about the status of a video as "physical evidence". My assumption would be that a VHS tape is physical evidence, but an mp4 attachment to an email is not. As an example, if a client gives his lawyer a murder weapon, the defense has to disclose that. If the client tells his lawyer where the murder weapon is buried, the lawyer is not required to disclose that [2]. [1] https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_discovery_blk/ https://www.americanbar.org/groups/criminal_justice/publicat... [2] https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3043&context=nclr;Incriminating https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=... page 5 (page 900 if you go by the numbers on the text).
  - greggyb 6y ago
    A video filmed by a third party is not self-incrimination. It would be incrimination of the defendant by the third party's video evidence. Trials are preceded by a long process of discovery and, in general both sides will have access to all evidence that is going to be used in the trial. Edit: incorrect punctuation marks snuck in.

by hkai 6y ago

belorn 6y ago

Please elaborate, are you saying that resisting arrest is a law that should not exist even in the case where it can be proven?

JoeAltmaier 6y ago

Only unethical lawyers? Suppressing evidence can get them disbarred.

curryst 6y ago
Ianal, but I wouldn't think the defense attorney would be required to share that? Wouldn't it violate your clients right to not self-incriminate? The prosecution is definitely not allowed to suppress evidence that would demonstrate someone's innocence, but I don't think the same is true of the defense.
- bzbarsky 6y ago
  Also not a lawyer, but as I understand it, both the defense and the prosecution tell each other and the judge what evidence they plan to bring; unlike crime shows, you generally don't spring surprises in court. In this case the defense would say "we have a video that shows we are innocent" and the prosecution would then request a copy of the video, and a warrant to acquire it. Providing said video doesn't seem any more self-incrimination than the prosecution asking for a warrant to get written evidence that is in possession of the accused, say, though the line there might start getting blurry if the video is something routinely filmed from the accused's viewpoint. But if it's filmed by a third party, I doubt the self-incrimination provisions would extend to it in any way...
  - curryst 6y ago
    Right, that's discovery as I understand it. But why would you, as the defense, plan to present a video that demonstrates your guilt? If you aren't going to present it, it isn't part of discovery. The prosecution is required to share material that undermines their own case under the Brady Rule [1], but the defense does not bear the same burden as far as I know. In fact, the defense is not even required to request or subpoena the exculpatory evidence; the prosecution is expected to share it of their own accord. Which typically means the prosecution just shares everything they have, in case something turns out to be exculpatory (the Brady Rule is still in play even if the prosecution is unaware they have the evidence). My take is that this situation applies to evidence the defense has acquired. I don't think the _defense_ is required to share it voluntarily (although it could probably still be subpoenaed if the prosecution was aware of its existence). I.e. if Joe Shmoe was being charged with burglary, and someone sent his a lawyer a video of him committing the crime, his lawyer is not required to disclose the existence of the video. If the prosecution found out that it existed, they could still subpoena it. Although I don't know if you could subpoena it from Joe Shmoe, that's beyond my limited reading. You could definitely subpoena it from whoever sent it to the defense, as their right against self-incrimination doesn't apply. [1] https://www.law.cornell.edu/wex/brady_rule https://www.law.cornell.edu/wex/brady_rule
    - JoeAltmaier 6y ago
      If the prosecution isn't make aware of its existance, the defense attorney is vulnerable to being disbarred. That's a lot to ask, for one deadbeat client. A good defense lawyer would say "If that video doesn't obviously clear your name, then don't show it to me".
      - curryst 6y ago
        I went on a Google search for prior case law, because this piqued my interest. Everything I can find says that they are not required to disclose evidence, with the exception of 1) things they intend to use in court 2) physical evidence. The BAR seems to agree [1], there is no mention of disclosing evidence other than what you intend to present in court. [2] also notes that being required to disclose physical evidence is in contrast to the 5th amendment, which indicates to me that most evidence is not required to be disclosed under the 5th amendment. I am unsure about the status of a video as "physical evidence". My assumption would be that a VHS tape is physical evidence, but an mp4 attachment to an email is not. As an example, if a client gives his lawyer a murder weapon, the defense has to disclose that. If the client tells his lawyer where the murder weapon is buried, the lawyer is not required to disclose that [2]. [1] https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_discovery_blk/ https://www.americanbar.org/groups/criminal_justice/publicat... [2] https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3043&context=nclr;Incriminating https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=... page 5 (page 900 if you go by the numbers on the text).
- greggyb 6y ago
  A video filmed by a third party is not self-incrimination. It would be incrimination of the defendant by the third party's video evidence. Trials are preceded by a long process of discovery and, in general both sides will have access to all evidence that is going to be used in the trial. Edit: incorrect punctuation marks snuck in.