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Please, go on :) What is the process like in practice, and what are its weaknesses? How do you think this process will have to change to account for the ease o

by cowpig 3y ago

Please, go on :) What is the process like in practice, and what are its weaknesses? How do you think this process will have to change to account for the ease of fabricating digital evidence?

qingcharles 3y ago
OK, first thing to remember is that in most trials the lawyers for both parties probably know each other and the judge professionally, and often personally, depending a lot on the size of the courthouse/venue (technical term for the geographical area the court hears cases from). This is important because all three sides, plaintiff, defendant, and court (judge) want to make their life as simple as possible. In practice this means that before trial the judge will ask everyone to sort out the foundation before trial so that things can go quickly and in the case of a jury trial the jury's precious time isn't wasted on technical matters (as generally the jury isn't allowed to have an opinion on whether a piece of evidence is real - that is a matter solely for a judge to rule on). What actually happens though, for the most part, is that none of the lawyers want to waste the time of a photographer to come into court to spend two seconds to say "yes" when asked if these are the photos they took. (Getting any witness into court is a nightmare). So the parties agree to "stipulate" the foundation of exhibits. So if the prosecutor asks to introduce a crime scene photo the defense lawyer will accept a stipulation that the photographer would swear to the images. This might buy the defense lawyer some brownie points as it saves the prosecution a lot of grunt work. The judge will also look on it favorably too, so more points there. What is sad is that a lot of cases can be won on foundational grounds if lawyers stop stipulating to make things easier. There are many ways for foundation to fail and lawyers should require foundation to be proven on all but the most infallible cases. One big issue coming through courts is child pornography. In many jurisdictions CSAM is legal if no real minors are involved in its production. To prove an image contains a real minor you either need the photographer (!) to vouch for it, or someone else that can verify the contents (e.g. the victim). There are many other technical pieces to foundation that I could spend hours on. For instance, recorded security cam footage has no "photographer" so it is validated by swearing all the equipment was working fine. The actual court Rules of Evidence for this process are really tiny, and practically all of the determinations are actually made based not on the wording of the rules but from the millions of pages of opinions of appeal court judges (case law) that has been written on this subject over the last few hundred years.

by cowpig 3y ago

Please, go on :) What is the process like in practice, and what are its weaknesses? How do you think this process will have to change to account for the ease of fabricating digital evidence?

qingcharles 3y ago

OK, first thing to remember is that in most trials the lawyers for both parties probably know each other and the judge professionally, and often personally, depending a lot on the size of the courthouse/venue (technical term for the geographical area the court hears cases from). This is important because all three sides, plaintiff, defendant, and court (judge) want to make their life as simple as possible. In practice this means that before trial the judge will ask everyone to sort out the foundation before trial so that things can go quickly and in the case of a jury trial the jury's precious time isn't wasted on technical matters (as generally the jury isn't allowed to have an opinion on whether a piece of evidence is real - that is a matter solely for a judge to rule on). What actually happens though, for the most part, is that none of the lawyers want to waste the time of a photographer to come into court to spend two seconds to say "yes" when asked if these are the photos they took. (Getting any witness into court is a nightmare). So the parties agree to "stipulate" the foundation of exhibits. So if the prosecutor asks to introduce a crime scene photo the defense lawyer will accept a stipulation that the photographer would swear to the images. This might buy the defense lawyer some brownie points as it saves the prosecution a lot of grunt work. The judge will also look on it favorably too, so more points there. What is sad is that a lot of cases can be won on foundational grounds if lawyers stop stipulating to make things easier. There are many ways for foundation to fail and lawyers should require foundation to be proven on all but the most infallible cases. One big issue coming through courts is child pornography. In many jurisdictions CSAM is legal if no real minors are involved in its production. To prove an image contains a real minor you either need the photographer (!) to vouch for it, or someone else that can verify the contents (e.g. the victim). There are many other technical pieces to foundation that I could spend hours on. For instance, recorded security cam footage has no "photographer" so it is validated by swearing all the equipment was working fine. The actual court Rules of Evidence for this process are really tiny, and practically all of the determinations are actually made based not on the wording of the rules but from the millions of pages of opinions of appeal court judges (case law) that has been written on this subject over the last few hundred years.