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Will More Courts Admit iPhone Videos as Trial Evidence?

By Jason Beahm on December 30, 2010 5:53 AM

So what if you can't get an iPhone video admitted as evidence? Looks like it would be just as good to post it to YouTube.

A California man was ejected and arrested from a Santa Cruz City Council meeting after doing a silent Nazi salute. Robert Norse then sued city officials, alleging that they violated his First Amendment rights. The district court granted judgment against him, but the 9th Circuit reversed that decision 11-0.

One of the judges pointed out that anyone could see the iPhone video of the salute on YouTube.

In light of the iPhone videos, 9th Circuit Chief Judge Alex Kozinski stated that a jury should be allowed to consider "whether Norse was impermissibly ejected because of his viewpoint rather than his alleged disruptiveness," the San Francisco Chronicle reports. Judge Kozinski found that despite the fact that the video was not introduced into evidence, "there's no need to take [his] word for it" because a video of the incident is on YouTube.

Could this be a preview of the future of video trial evidence?

Evidence shown to be relevant, material, and competent, that is not barred by an exclusionary rule, is admissible. Generally speaking, such evidence only needs to be confirmed as a fair and accurate representation of what happened.

With the number of people now walking around with video capable smartphones in their pockets, YouTube trial evidence seems likely to become commonplace. Techdirt posted a telling quote for the future of video evidence. "I join Judge Thomas's opinion because it's clearly right. I write only to observe that, even after the procedural irregularities that deprived Norse an opportunity to present evidence, it's clear that the council members aren't entitled to qualified immunity. In the Age of YouTube, there's no need to take my word for it: There is a video of the incident that I'm "happy to allow . . . to speak for itself."

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