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Ben Rubinowitz and Evan Torgan Ben Rubinowitz and Evan Torgan

With the abundance of smart phones and other similar devices the creation of videos has never been more popular. Although videos can serve to capture friendly memories, they can also serve to provide ammunition for the advocate. A video can discredit a witness more quickly than the mere written word ever could. Clearly, the use of a video as a weapon at trial is no longer a rare event. Indeed, the sheer number of videotape statements makes its use at trial commonplace. Whether the video is in the form of a deposition, surveillance footage or an event captured on a nearby security camera, the trial lawyer must think carefully how to best exploit the video as a strategic tool for helping her win the case before ever questioning a witness. If used properly, a video can serve to leave an indelible impression that there is no doubt that the witness is a liar, cannot be trusted and is anything but credible.

Perhaps one of the best examples of the use of video as a tool for discrediting an individual are the recent events surrounding the replacement of Supreme Court Justice Ruth Bader Ginsberg. Statements made in the past by public figures are being used to both attack and impeach the credibility of those who have gone on record promising one thing and delivering another. Take, for example, the statements of Sen. Lindsey Graham made before the Senate Judiciary Committee back in 2016 when he brushed off partisan politics and invited critics to hold his feet to the fire after he opposed President Barack Obama’s Supreme Court pick to replace Justice Antonin Scalia. His own words were videotaped. They were clear. They were deliberate. They were unequivocal. The video captured Senator Graham stating: “I want you to use my words against me. If there is a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said ‘let’s let the next president whoever it might be make that nomination.’”

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