4 ms·

I question the wisdom of setting the judge up as a superjury / gatekeeper for this kind of situation. This seems like a reliability / weight of the evidence sce

I question the wisdom of setting the judge up as a superjury / gatekeeper for this kind of situation. This seems like a reliability / weight of the evidence scenario, not a reliability / qualification of the witness scenario (as with an expert witness). Why would the judge be better qualified to determine whether the voice was authentic, as opposed to the witness? And why should the judge effectively determine the witness's credibility or ability to discern, when that's what juries are for? All that said, emulated voices do pose big problems for litigation.

bluGill 2y ago
I don't know what the latest is, but often judges are supposed to not allow "expert testimony" without checking that the person is an expert. However this is a really complex area. Judges don't want to be the one deciding a case, but not allowing some "expert" is in a way deciding the case.
- hiatus 2y ago
  Isn't it up to the opposing party, and not the judge, to impeach an expert?
  - deleted 2y ago
    [deleted]
  - ARandumGuy 2y ago
    If it was solely up to the opposing party, then they'd strike down every single expert. The judge still is the ultimate decider on what evidence (including expert testimony) is admissible.
    - SoftTalker 2y ago
      It's the jury that ultimately decides whether the evidence is convincing, even if the judge allows it. The defense will try to cast doubt on the evidence when they make their arguments. This also reminds me of one of Norm Macdonald's bits. He says (very seriously) that if he were on a jury he would not convict someone on the basis of DNA evidence. "What do I know about DNA?" he says.
- zusammen 2y ago
  There’s a built-in design paradox. How does a judge assess an expert in a field where he is not one? There’s probably some improvement that comes from experience but it’s not perfect.
  - stogot 2y ago
    Qualifications=academics usually & career experience. No way to know if they actually learned something and aren’t a fraud. Even corporations that do thousands of interviews get duped
    - aziaziazi 2y ago
      Some thought - perhaps the judge make less experts interviews than the corporations, leading to less experience in that but also takes each of them more seriously. - one way to remove/add some credit to someone claim is to ask some of their peers opinion and see if there’s a strong majority. - the judge personal expertise may help him forge a precise opinion but that wouldn’t clear him of making a mistake. For important matters it’s always a good idea to ask for peers reviews. Academics knows that too.
  - bluGill 2y ago
    Opposing lawyers have an incentive to help the judge. Of course the lawyers will lie, but they still will point out important details for the judge to look at.
NoMoreNicksLeft 2y ago
Excluding fake evidence is very much a responsibility of the judge. In the age of Fox News, letting the jury decide for themselves whether or not made-up bullshit is actual evidence seems like a recipe for disaster, and not necessarily one that errs on the side of caution.
- treetalker 2y ago
  To the contrary, in US courts the jury determines whether evidence (documentary, testimonial) is credible or not, and what weight (if any) to assign it. (Experts, à la Daubert etc., are a different matter because they give expert opinions, not factual evidence based on personal witnessing of the events in the case, so the judge does perform a gatekeeping function, essentially to ensure the underlying field/science is reliable.) While certainly Fox News headlines would not reach the jury in most instances, that is on account of hearsay, lack of qualification, materiality, relevance, and similar rules. It is not a prior credibility or weight determination by the judge, as I understand TFA to be advocating. So: did the witness hear a voice that he believed to be the one in question? If so, jury gets to decide (unless unfairly prejudicial or some other overriding rule comes into play).
  - pharrington 2y ago
    IANAL, and I am assuming you are a lawyer - I interpreted @NoMoreNicksLeft as saying that it's a judge's responsibility to determine whether or not evidence is admissible - before it gets to a jury. And that's also what the article is talking about - "The examples should illustrate circumstances that may satisfy the authentication requirement while still leaving judges discretion to exclude an item of evidence if there is other proof that it is a fake. "
    - cperciva 2y ago
      Judges have a role in excluding evidence which is more prejudicial than probative. In the case of a fake voice recording, hearing someone who sounds like the accused participating in a crime may prejudice the jury even if they later hear evidence that the recording is fake. (This is probably even more true for faked videos.)
whywhywhywhy 2y ago
Gell-Mann Amnesia effect comes to mind.
_DeadFred_ 2y ago
You mean like expert witness polygraphers that were treated as fact by the courts for years and still used to re-incarcerate people on parole/probation? Or gun matching (ballistics) that are no longer considered conclusive but subjective? https://www.mdcourts.gov/data/opinions/coa/2023/10a22.pdf https://www.mdcourts.gov/data/opinions/coa/2023/10a22.pdf Hair and Fiber expert analysis that was wrong? https://innocenceproject.org/fbi-agents-gave-erroneous-testimony-in-at-least-90-of-microscopic-hair-analysis-cases/ https://innocenceproject.org/fbi-agents-gave-erroneous-testi... Or do you mean bite mark analysis that was again wrong? Many of these forensic methods were used for decades and presented/treated as conclusive evidence before being challenged leading to wrongful convictions. But yes, let's have 'certified' voice experts whose living is based on being hired by the government and giving testimony to convict people. Surely this time it will be altruistic and scientific.
- klipklop 2y ago
  What always worried me is that nobody ever challenged these methods. We just accepted it as fact. Endless crime tv shows reenforce that these methods are infallible. People that watch these shows then become jurors. Scary.
  - SoftTalker 2y ago
    Cops looking at blurry 240p video frame. "Enhance!" and suddenly it's 4k.
RataNova 2y ago
But I think the argument here is less about judges making definitive calls on authenticity and more about ensuring that clearly questionable evidence isn't automatically admitted just because a witness vouches for it.

bluGill 2y ago

I don't know what the latest is, but often judges are supposed to not allow "expert testimony" without checking that the person is an expert. However this is a really complex area. Judges don't want to be the one deciding a case, but not allowing some "expert" is in a way deciding the case.

hiatus 2y ago
Isn't it up to the opposing party, and not the judge, to impeach an expert?
- deleted 2y ago
  [deleted]
- ARandumGuy 2y ago
  If it was solely up to the opposing party, then they'd strike down every single expert. The judge still is the ultimate decider on what evidence (including expert testimony) is admissible.
  - SoftTalker 2y ago
    It's the jury that ultimately decides whether the evidence is convincing, even if the judge allows it. The defense will try to cast doubt on the evidence when they make their arguments. This also reminds me of one of Norm Macdonald's bits. He says (very seriously) that if he were on a jury he would not convict someone on the basis of DNA evidence. "What do I know about DNA?" he says.
zusammen 2y ago
There’s a built-in design paradox. How does a judge assess an expert in a field where he is not one? There’s probably some improvement that comes from experience but it’s not perfect.
- stogot 2y ago
  Qualifications=academics usually & career experience. No way to know if they actually learned something and aren’t a fraud. Even corporations that do thousands of interviews get duped
  - aziaziazi 2y ago
    Some thought - perhaps the judge make less experts interviews than the corporations, leading to less experience in that but also takes each of them more seriously. - one way to remove/add some credit to someone claim is to ask some of their peers opinion and see if there’s a strong majority. - the judge personal expertise may help him forge a precise opinion but that wouldn’t clear him of making a mistake. For important matters it’s always a good idea to ask for peers reviews. Academics knows that too.
- bluGill 2y ago
  Opposing lawyers have an incentive to help the judge. Of course the lawyers will lie, but they still will point out important details for the judge to look at.

NoMoreNicksLeft 2y ago

Excluding fake evidence is very much a responsibility of the judge. In the age of Fox News, letting the jury decide for themselves whether or not made-up bullshit is actual evidence seems like a recipe for disaster, and not necessarily one that errs on the side of caution.

treetalker 2y ago
To the contrary, in US courts the jury determines whether evidence (documentary, testimonial) is credible or not, and what weight (if any) to assign it. (Experts, à la Daubert etc., are a different matter because they give expert opinions, not factual evidence based on personal witnessing of the events in the case, so the judge does perform a gatekeeping function, essentially to ensure the underlying field/science is reliable.) While certainly Fox News headlines would not reach the jury in most instances, that is on account of hearsay, lack of qualification, materiality, relevance, and similar rules. It is not a prior credibility or weight determination by the judge, as I understand TFA to be advocating. So: did the witness hear a voice that he believed to be the one in question? If so, jury gets to decide (unless unfairly prejudicial or some other overriding rule comes into play).
- pharrington 2y ago
  IANAL, and I am assuming you are a lawyer - I interpreted @NoMoreNicksLeft as saying that it's a judge's responsibility to determine whether or not evidence is admissible - before it gets to a jury. And that's also what the article is talking about - "The examples should illustrate circumstances that may satisfy the authentication requirement while still leaving judges discretion to exclude an item of evidence if there is other proof that it is a fake. "
  - cperciva 2y ago
    Judges have a role in excluding evidence which is more prejudicial than probative. In the case of a fake voice recording, hearing someone who sounds like the accused participating in a crime may prejudice the jury even if they later hear evidence that the recording is fake. (This is probably even more true for faked videos.)

whywhywhywhy 2y ago

Gell-Mann Amnesia effect comes to mind.

_DeadFred_ 2y ago

You mean like expert witness polygraphers that were treated as fact by the courts for years and still used to re-incarcerate people on parole/probation? Or gun matching (ballistics) that are no longer considered conclusive but subjective? https://www.mdcourts.gov/data/opinions/coa/2023/10a22.pdf https://www.mdcourts.gov/data/opinions/coa/2023/10a22.pdf Hair and Fiber expert analysis that was wrong? https://innocenceproject.org/fbi-agents-gave-erroneous-testimony-in-at-least-90-of-microscopic-hair-analysis-cases/ https://innocenceproject.org/fbi-agents-gave-erroneous-testi... Or do you mean bite mark analysis that was again wrong? Many of these forensic methods were used for decades and presented/treated as conclusive evidence before being challenged leading to wrongful convictions. But yes, let's have 'certified' voice experts whose living is based on being hired by the government and giving testimony to convict people. Surely this time it will be altruistic and scientific.

klipklop 2y ago
What always worried me is that nobody ever challenged these methods. We just accepted it as fact. Endless crime tv shows reenforce that these methods are infallible. People that watch these shows then become jurors. Scary.
- SoftTalker 2y ago
  Cops looking at blurry 240p video frame. "Enhance!" and suddenly it's 4k.

RataNova 2y ago

But I think the argument here is less about judges making definitive calls on authenticity and more about ensuring that clearly questionable evidence isn't automatically admitted just because a witness vouches for it.