Originally published at: https://boingboing.net/2024/07/31/aussie-drivers-can-drop-a-dime-via-the-internet.html
…
3 Likes
This…is not a wonderful thing. Convictions based on hearsay (and dashcam video from a third party is absolutely hearsay) is not a wonderful thing. Especially in this day and age, where faking a video like that wouldn’t even be that hard.
8 Likes
Man, and I thought state surveillance was bad.
Between this and Ring cameras, at this rate, we don’t need a police state surveillance, the people will do it and PAY for the privilege! All in the name of security and safety. Heck with Dash cams, I could see insurance requiring it soon.Or make it more expensive if you don’t have one.
Can you layman explain that to me?
This article is from the ed-tech space, but I think the mental model of “cop shit” is useful and informative as a moral tool generally.
4 Likes
Hearsay, from a legal standpoint, is an out of court statement presented in court as evidence used to prove the thing the statement is saying. In its most basic form, it’s literally what the word means. “I heard Julie say that she saw Jim run that red light.” In an actual trial, that testimony, in the US, would not be admissible. You’d have to call Julie to the stand and have her say that she saw Jim run the red light. You can’t have someone else saying that Julie told them that she saw it. And technically, audio and video recordings are hearsay. They are “statements”, and they’re made out of court. Historically, they have been allowed under an exception because of their reliability. But now, with AI and deep fakes, I think we’re entering an era where the reliability is going to be suspect, especially when the video is from a third party.
ETA: I know this is Australia, but in the US, I think this would also run into due process problems. They’re using evidence from third parties to fine people without a trial. I know there’s probably a way to dispute the charge and go to court, but still…I think with a government controlled traffic camera, you could argue that you have due process through the political process. In other words, if people don’t like these cameras, they can elect officials who are opposed to them and will remove them. Or they can express their opinion at city council meetings or open hearings or whatever that they are opposed to these. But a third party dash cam? I dunno. It feels insufficient to me.
8 Likes
So the state couldn’t enter only the video into evidence of a crime and prosecute, but if you got the person who was driving the car who recorded the video to testify and corroborate the video you could?
How do tickets from red light cameras work? Is it not hearsay because it is the state’s camera? (NVM, it looks like you answered that in your ETA. Kinda bullshit, IMO).
Finally - any chance Australia has different laws that would accept 3rd party evidence with out testimony? Because while a lot of people would drop a dime on other drivers, putting on pants and going to court for it? Nah.(Looks like you sorta answered that as “maybe” in your ETA).
2 Likes
No. Right now, video and audio evidence are admissible under an exception to the hearsay rule because of their reliability, and that almost certainly extends to third party recordings. I’m just not sure it should extend to third party recordings. I think my problem is that it should be pretty easy to verify that video and audio from a government controlled source is unaltered. I don’t think verifying that from a third party is so easy. So I’m not convinced that they’re reliable enough anymore, and I’m certain they’re not going to be reliable enough in just a few years, if not sooner. So I think my objection here is the combination of using third party video along with a non-adjudicated conviction. I dunno. It just feels wrong to me.
9 Likes
Ah, I understand better now, thanks.
I agree with that.
I don’t think that the time and effort to make someone you don’t like look like an asshole driver to fake a video for a ticket is worth the hassle and risk. But, there will be a point where these is no hassle (and depending how good it is, less risk).
3 Likes
Yeah, and I don’t think that point is all that far away. And of course, there is the reverse. Faking a video to provide an alibi for someone in a more serious criminal case. As in, “Your honor, my client couldn’t have possibly killed the victim at his home in Dallas on April 6. Here is a dashcam video from that same day taken in Chicago, clearly showing my client.” Most people aren’t thinking about this aspect of AI and deep fakes yet, but I promise you lawyers are.
ETA: Or, to add another level to this, when we get to that point, prosecutors are going to use this to discredit legitimate video alibi evidence. “Well, your honor, how do we know this video isn’t created by AI?” This shit is about to get messy.
6 Likes
Actually dashcam video is not hearsay because actions like driving are typically not “statements.” Same way that photos are not hearsay. The issues are authentication and foundation. For example, if there is a statute of limitations on a civil traffic violations, how can you prove with just the video that the citation was issued within x months of the alleged violation?
Government-operated red light and speed cameras are contracted out to companies who can show their “metadata” is reliable enough to be admissible. If a video needs to be used in court, the company sends an affidavit from some tech with enough knowledge of how and where the camera was placed, the radar technology used and its accuracy, the method of recording and extraction, etc. so the court can be satisfied that the video shows what is being alleged. Cops have had to do the same thing for decades with radar guns, including proving they were calibrated.
The problem here is that the person taking the video is not testifying as to the when and where, how fast they were going, what angle shot from, etc. Not hearsay, but foundation. Video without foundation should not be admissible, but you need to have knowledge of the evidence rules and a judge (who may not be a lawyer) who understands and follows those rules. Plus the cost of a lawyer is greater than the ticket, so people generally give up and pay.
I am skeptical the described scheme would work, at least in my jurisdiction, because the criminal defense bar would react and file appropriate lawsuits.
5 Likes
The driving is not the evidence, though. The video is the evidence. What makes it hearsay is that the “statement” (the video) was made out of court, and that it is being used to prove that the thing it shows actually happened. So you can’t cross examine it or impeach it directly. It’s admissible under an exception, its reliability. Which is what you are saying, and is what I said before. But it is, technically, hearsay. It’s weird. The rules of evidence are weird. And complicated. And one of the most complicated aspects of law, at least in the US. Evidence is one of those areas people dread studying for for the bar exam. There are things that are technically hearsay that the law says aren’t hearsay. And then there are things that aren’t technically hearsay that the law says are. And then there are things admissible under an exception even though they are hearsay. And each of these categories throws the evidence into a different legal status. If you told someone to come up with a bunch of rules of evidence, and to make them as complicated and as stupid as possible, you wouldn’t come up with something as stupid and complicated as what we actually have. Anyway, bottom line…video and audio evidence are in the category of things that are technically hearsay but that the law treats them as if they aren’t. But that may have to change soon, in my opinion.
11 Likes
I don’t know if they should go as far as fines and demerits but the people with the most and/or most egregious violations should have to review them at some point with a driving licensor.
I don’t think you should bag on the rules of evidence so easily. They’re not perfect, but they’re not illogical.
Rule 801 defines “statement” as “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Video, photography and writing are just the means of communication, and do not inherently constitute “hearsay.” If that were the case then most evidence would not come in. If video were inherently hearsay, then so would a writing. It is not the fact something is written, but what the words say, that make it hearsay or not.
Exceptions under Rule 803 have to do with the circumstances, and not the medium of recording: excited utterances, records of a regularly conducted activity, etc.
Here, the driving would be “nonverbal conduct,” but probably not a “statement.” For purposes of the hearsay rule, it makes no difference whether the conduct was recorded on video or a witness says “that guy was driving like a maniac.” The witness can be cross examined on their location, the lighting, their glasses (see My Cousin Vinnie). The video is not "cross-examined, " but it can be challenged for lack of foundation, or authenticity under Rule 901. Those are relatively low bars, which is why video evidence is regularly admitted and is very powerful evidence in court. Juries naturally believe a video of an event over a witness’ testimonial description of the event.
Again, the driving is not the evidence. You keep trying to apply the hearsay rule to the driving. There is no way to submit driving as evidence. The evidence is the video. It is a statement about the driving, being used to prove the accused behavior.
It does make a difference, though. The witness can be cross examined. He can be impeached. The video can’t be. It’s more analogous to a witness who says, “This other guy who said he saw the accident told me he saw this.”
You are correct on why video is admitted. What I’m saying is that those are exceptions. It is hearsay, but it’s allowed in because of its reliability. That is very soon going to be highly suspect. As soon as AI and deep faked videos get good enough that it becomes really difficult to identify them as fake, then the reliability of all video evidence becomes suspect.
6 Likes
A vhs tape, mpg file, or cash register receipt are the physical evidence. But for purposes of hearsay, the form doesn’t matter. It’s whether the physical evidence contains a “statement” that determines whether you even need to look at the hearsay rule in the first place. Crime scene photos: not hearsay (unless the photo is of a note saying “John did it.”). Just because the photo cannot be cross examined does not make it hearsay. You have to start with the definitions in the rule, and the starting place is whether there is a “statement.”
Here, video of the actual driving only displays nonverbal conduct. No statement, no need to look at Rules 802 and 803. Bodycam video of an eyewitness saying “he ran a red light,” on the other hand is hearsay, but not because of its medium. It’s not whether the physical evidence can be cross examined, but whether the veracity of the statement contained within that physical evidence can be challenged by cross examination.
If you attend a trial you will hear many more “foundation” objections than “calls for hearsay .” IMO they don’t spend enough time on foundation in Evidence class.
ETA: further thoughts, and the simplest answer: the definition of “statement” requires it be “a person’s” assertion or conduct. Since a paper, photo or video is not a person, it is not a declarant under Rule 801.
2 Likes
We don’t need to be adversarial against each other. We’re already divided enough.
1 Like
I’m not a sir.
Let me try this a different way. First of all, we’re really saying the same thing. Audio and video evidence is considered reliable, so the courts accept it. It is, technically, hearsay, though. The law doesn’t treat it that way, but it is. Similarly, business records are considered highly reliable and are generally admissible in court. However, the rules of evidence explicitly considers business records to be hearsay, admissible under an exception specifically for business records. These days, physically, business records are just ones and zeroes stored on a hard drive somewhere, and usually created automatically by software. They are a record of something, and that record was created outside of court. Audio and video are the same. They are records of something, and that record was created out of court. The law currently doesn’t consider them to be hearsay, but technically, they are. If you disagree, you’re welcome to take it up with my Evidence professor. He still teaches Evidence at Seton Hall.
3 Likes
Apologies for the “sir.”. Just trying to keep it light or at least academic.
Please see my last ETA. It’s really the cleanest way to look at it and the way an appellate court would look at it. Judges will start with the text of the rule, for which you need a declarant, who by definition is a person.
I know the law. I’ve said that multiple times. That the law doesn’t consider it to be hearsay. I’m saying that technically, not legally, it’s hearsay. And as soon as the reliability of video and audio becomes generally suspect, the law is going to have to revisit this.
4 Likes
OK. I was just hoping to offer practical advice to a person trying to beat a photo radar ticket, who might be led astray by the hearsay rule. I will now direct my pedantry at a deserving target - legal TV shows. 
ETA: and, I owe you an apology for not paying attention to the distinction you were trying to make. As a practicing attorney I tend to filter out the philosophy and theory aspects underpinning the law.
2 Likes
