People are trying to claim real videos are deepfakes

> Why? His lawyers could provide the same justification: Convincing deepfakes are easily produced at low cost by adversarial plaintiffs and internet trolls.

Cool. Video evidence, written evidence, witness testimony, and essentially everything else is now off the table. Congratulations; you've gotten rid of the entire trial court system.

> Testifying at all subjects you to cross-examination, which is time consuming and subjects you to lawyer tricks by the other party. Not wanting to do it is the default.

Yes. If you aren't willing to argue against a piece of evidence in a convincing fashion, you have to live with that decision. The jury gets to draw inference from "huh, they didn't say anything in response to that..."

> Demanding that the introducing party authenticate it should be table stakes at this point.

They'll introduce it with someone describing it something like this:

"This is a seven year old video hosted publicly on YouTube, on the channel of a long-standing reputable organization, of a live event hosted by well-known reporters, which received contemporary news coverage. The claims in the video made by Musk are of a similar nature to others he has demonstrably made."

That's sufficient. Musk's lawyers are free to object, if they've got a good argument against all of that. They're also welcome to try and convince the jury that Musk never made the claims. I suspect the plaintiffs will be able to find plenty of corroborating evidence should it come to that.

"Affirmative defense" is a specific legal term. It means yes, I am guilty of but that's OK because .

As for the rest - you'll have more luck discussing the specifics with your lawyer at this point. Good luck and I hope you find what you need.

> Cool. Video evidence, written evidence, witness testimony, and essentially everything else is now off the table. Congratulations; you've gotten rid of the entire trial court system.

You're going to create a deepfake of witness testimony in front of a live jury? How does that work?

And it's not that you can't submit a video, it's that if you want to, you should have to go find the person who took the video and have them testify that what it shows is what actually happened. And have them be identified, so their credibility can be called into question, e.g. if it turns out they're a long-time antagonist of the defendant.

> Yes. If you aren't willing to argue against a piece of evidence in a convincing fashion, you have to live with that decision. The jury gets to draw inference from "huh, they didn't say anything in response to that..."

But they did have something to say in response to that: Deepfakes are cheap and easy to create. That's a general argument, not a claim about the facts of the case, so it doesn't require testimony to substantiate.

> "This is a seven year old video hosted publicly on YouTube, on the channel of a long-standing reputable organization, of a live event hosted by well-known reporters, which received contemporary news coverage. The claims in the video made by Musk are of a similar nature to others he has demonstrably made."

None of which proves that the video is real. At best it's evidence that it's a possible fake which is seven years old and was published by an established organization.

What they could do is find the reporter who did the interview and bring them in to testify that what the video depicts is what actually happened, if they have a better memory of it than Musk. Which they may very well be able to do. But the point is that they should have to.

OK, first thing to remember is that in most trials the lawyers for both parties probably know each other and the judge professionally, and often personally, depending a lot on the size of the courthouse/venue (technical term for the geographical area the court hears cases from). This is important because all three sides, plaintiff, defendant, and court (judge) want to make their life as simple as possible. In practice this means that before trial the judge will ask everyone to sort out the foundation before trial so that things can go quickly and in the case of a jury trial the jury's precious time isn't wasted on technical matters (as generally the jury isn't allowed to have an opinion on whether a piece of evidence is real - that is a matter solely for a judge to rule on).

What actually happens though, for the most part, is that none of the lawyers want to waste the time of a photographer to come into court to spend two seconds to say "yes" when asked if these are the photos they took. (Getting any witness into court is a nightmare). So the parties agree to "stipulate" the foundation of exhibits. So if the prosecutor asks to introduce a crime scene photo the defense lawyer will accept a stipulation that the photographer would swear to the images. This might buy the defense lawyer some brownie points as it saves the prosecution a lot of grunt work. The judge will also look on it favorably too, so more points there.

What is sad is that a lot of cases can be won on foundational grounds if lawyers stop stipulating to make things easier. There are many ways for foundation to fail and lawyers should require foundation to be proven on all but the most infallible cases.

One big issue coming through courts is child pornography. In many jurisdictions CSAM is legal if no real minors are involved in its production. To prove an image contains a real minor you either need the photographer (!) to vouch for it, or someone else that can verify the contents (e.g. the victim).

There are many other technical pieces to foundation that I could spend hours on. For instance, recorded security cam footage has no "photographer" so it is validated by swearing all the equipment was working fine.

The actual court Rules of Evidence for this process are really tiny, and practically all of the determinations are actually made based not on the wording of the rules but from the millions of pages of opinions of appeal court judges (case law) that has been written on this subject over the last few hundred years.

> Witness testimony is trivially fabricated. It happens all the time in court. The solution is to rebut it, not ban it.

Witness testimony is under oath. You can lie, but then you can go to jail. And you can be cross-examined, unlike a video. The risk of punishment reduces the incentive to lie and the interactivity increases the potential for it to be discovered.

Witnesses also have varying credibility. If the witness is the plaintiff, they have an obvious incentive to lie and juries know that. Whereas a video from an unauthenticated source is no more credible but fosters the intuition that you're seeing something with your own eyes.

> I don't think you're arguing in good faith.

I think I am.

I think we can agree that a random video from a random YouTube channel has no credibility. But if you're going to stake the value of your evidence on the credibility of the source, you should at least have to establish that it can actually be authenticated by one of these credible parties and not just e.g. some syndicated clip that got published on their channel.

Which, once again, you may be able to do. But you should still have the burden of actually doing it.