4 ms·

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 bullsh

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.)
- NoMoreNicksLeft 2y ago
  >While certainly Fox News headlines would not reach the jury in most instances, that is on account of hearsay, Nor should obviously fake evidence reach the jury. They can judge for themselves whether testimony is credible, but this is far different than admitting faked evidence. And if you can't see the difference, I'm not sure I'm qualified to explain it to you.
  - pixl97 2y ago
    Exactly how is one supposed to determine what evidence is faked versus what evidence is not? Especially in the case where high technology has been used to mask that it is a fake?
    - NoMoreNicksLeft 2y ago
      >Exactly how is one supposed to determine what evidence is faked versus what evidence is not? It's pretty simple. If the "evidence" can be created by software, it's not evidence. Perhaps some specially designed recording hardware might digitally sign a voice recording, and one might be inclined to trust that it was a real recording if the design of that hardware/software system was vetted. But just for a recording? There's no point. Allowing a jury to decide that this recording is bad, but this other one is okay when they have no expertise to be able to determine if it is fake or not and none of the technical details either is just asking for prejudicial and even superstitious deliberation. We are at the point where audio (and probably video) recordings no longer count as evidence of real world events. It's been this way for photographs for a long time already.

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.)
NoMoreNicksLeft 2y ago
>While certainly Fox News headlines would not reach the jury in most instances, that is on account of hearsay, Nor should obviously fake evidence reach the jury. They can judge for themselves whether testimony is credible, but this is far different than admitting faked evidence. And if you can't see the difference, I'm not sure I'm qualified to explain it to you.
- pixl97 2y ago
  Exactly how is one supposed to determine what evidence is faked versus what evidence is not? Especially in the case where high technology has been used to mask that it is a fake?
  - NoMoreNicksLeft 2y ago
    >Exactly how is one supposed to determine what evidence is faked versus what evidence is not? It's pretty simple. If the "evidence" can be created by software, it's not evidence. Perhaps some specially designed recording hardware might digitally sign a voice recording, and one might be inclined to trust that it was a real recording if the design of that hardware/software system was vetted. But just for a recording? There's no point. Allowing a jury to decide that this recording is bad, but this other one is okay when they have no expertise to be able to determine if it is fake or not and none of the technical details either is just asking for prejudicial and even superstitious deliberation. We are at the point where audio (and probably video) recordings no longer count as evidence of real world events. It's been this way for photographs for a long time already.