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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 sho

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).
- bzbarsky 6y ago
  Good points. I had read the thread start as having the defense lawyers only present the parts of the video that support their case, not the full video, which as I understand it would not be OK. But yes, I don't know that anything prevents them from not presenting the video at all.

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).
bzbarsky 6y ago
Good points. I had read the thread start as having the defense lawyers only present the parts of the video that support their case, not the full video, which as I understand it would not be OK. But yes, I don't know that anything prevents them from not presenting the video at all.