Of International Crimes and Memory Sticks

Perhaps my favorite news story of late (apart from the Somali pirates and their spokesperson) is the Colombian government's seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, "I KNOW I had that memory stick around here somewhere." And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.
While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for perpetrators but also for prosecutors of international crimes.

Of course, the Evidence professor in me is skeptical about the admissibility of such data without proper authentication. While the authentication of computerized data is very much a live question before American courts, the evidentiary rules applied in international criminal tribunals are generally derived from civil law jurisdictions and therefore allow broad admissibility under the assumption that the judge can determine whether the evidence is reliable and weigh it accordingly. While this approach may be sensible in its inclusiveness, judges should trace the chain of custody carefully and rely on techie experts to ensure that nobody has tampered with computerized data. Particularly in the complex political situations that give rise to international crimes, it would be all too tempting for political foes to create a memory stick full of false information . . .

Cross-posted at IntLawGrrls

Posted by Jaya Ramji-Nogales at 07:00 AM | Comments (0) | TrackBack

Fear Not the Inadvertent Waiver

For those junior law firm serfs toiling away in the dungeons of document discovery drudgery, some good news is coming your way. Apart from thanking your lucky stars that you chose to be a lawyer rather than an investment banker, you can be happy about the recent promulgation of Federal Rule of Evidence 502. This new rule ensures that the unintentional disclosure of a privileged document does not result in automatic waiver of the attorney-client and work product privileges on all documents concerning the same subject matter. Rather than the current standard that allows for no human error, under the new rule, as long as you take "reasonable steps" to prevent disclosure and to rectify the error once discovered, the privilege will not be waived on related documents. Moreover, the rule applies not only to proceedings in federal court, but also to disclosures made to a "federal office or agency" -- thus encouraging corporations to comply with federal investigations without needing to worry about broad waiver of privileges.

FRE 502 was drafted "to address a growing problem that is adding inordinate and unnecessary burden, expense, uncertainty, and inefficiency to litigation." In other words, law firms had been billing many many hours of junior associate time towards "exhaustive, time-consuming, and expensive examination of documents item by item, often page by page, before they [could] be comfortable turning them over in discovery." Sound familiar? In order to prevent discovery costs "grossly disproportionate" to the "stakes of the underlying litigation," the plaintiffs bar and the defense bar joined forces in support of this new rule. Particularly in the age of voluminous electronic discovery, this should return at least a few hours of life to the document serfs, although firms may be loathe to relinquish their discovery cash cows so quickly. In any case, the rule seems to be well conceived and drafted, unlike many that have come before, but it remains to be seen whether it will be subject to abuse in practice by lawyers seeking to strategically disclose information beneficial to their client while protecting less helpful information under the privilege.

Posted by Jaya Ramji-Nogales at 03:44 PM | Comments (2) | TrackBack

Cross-Examining Film

Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: "Where the evidence 'captures only part of the incident and would provide a distorted view of the events at issue,' as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion." Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.

Posted by Jessica Silbey at 10:57 AM | Comments (1) | TrackBack