Any attorneys here that can discuss the nuances involved in knowingly lying to the court, which I believe carries penalties for the attorney? And why / whether that would or wouldn’t apply here?
It definitely carries penalties for the attorney. Each US state has passed 'rules of professional conduct' that govern rules that apply to barred attorneys. Lying to a tribunal, or lying to your client, is illegal and you can be disbarred and fined for it.
Haven't read this case closely but it sounds to me like the attorneys said "it's possible these are deep fakes" and not "these are deepfakes." The former seems like a reasonable argument to make, but according to the judge, a flawed one.
That said, at the most important moments, typically lawyers will focus on the 3-or-so 'best' (in their view) defenses and focus on those. Then if you lose, you can appeal and say the judge didn't consider your 15th-best defense closely enough :)
IANAL, but this sounds appropriate to me? Couldn't all forms evidence be hit with various types of "this might be fake" claims? So I think it's fair that the court assert that you must claim "this is fake", then be willing to battle it out with the opposing side. Otherwise it's not a defense, it's just empty words, isn't it?
> Tesla could not admit or deny the authenticity of video and audio recordings purportedly containing statements by Mr. Musk
https://arstechnica.com/tech-policy/2023/04/judge-slams-tesl...
Federal courts have rule 11, where an attorney can essentially call out the opposing counsel after some cure period and ask the court to impose sanctions on the attorney that's getting out of line. State courts have some equivalent.
In practice, most lawyers don't lie to the court because their career is dependent on maintaining a working relationship with the courts in which they appear. Even within the same case, if the presiding judge has good reason to believe you're a liar, every subsequent motion or argument you make is going to be viewed with skepticism.
No, its not.
> and there is no penalty or sanction for it
Yes, there is.
> - especially not against the lawyers themselves.
There is a penalty especially against the lawyers. Heck, lawyers have been suspended from practice for lying to courts outside of their capacity as lawyers.
This is tantamount to, but NOT equivalent to, "lying" in my book. Some of the most famous defenses in history, such as Cochran's "if it doesn't fit, you must acquit" https://www.youtube.com/watch?v=NH-VuP_5cA4 were fundamentally, fallacious appeals in nature.
Hugely disappointing to me. Would love for a lawyer to chime in on this.
If I could come up with any defense of this practice at all, I'd say that if you took my reasoning to its logical extreme, then the persuasive personality of an attorney themselves could be considered a fallacy, and that would be an unreasonable expectation to satisfy the elimination of. You could also argue that if 2 opposing lawyers are both permitted to make fallacious appeals that wouldn't be called out by judges or jury, then in theory they'd mostly cancel each other out. Maybe.