Do you see what I see? Looking at video evidence does not mean that you will actually see all that the video has to offer. Expert interpretation of video evidence is often required in order to properly evaluate and understand the images. Relying on video evidence without expert interpretation risks the failure to reach the correct conclusions based on the evidence or worse, reaching the wrong conclusions. The untrained eye is rarely able to fully understand video evidence. A properly trained and qualified expert will have spent many hours examining the video evidence and can assist the trier of fact in appreciating not only the overall events that are depicted but the fine details that are often otherwise overlooked or misunderstood. Forensic video analysts are frequently called upon to provide interpretation as to the evidential value or lack thereof of video evidence. A competent expert will be able to draw upon his/her knowledge and experience in assisting the trier of fact in this meaningful and helpful way.
The ability of analysts to provide interpretive evidence has been the subject of judicial scrutiny in both the Canada and the United States.
The Supreme Court of Canada, in R. v. Nikolovski, (1996), 111 C.C.C. (3d) 403, recognized and endorsed the analysis of video evidence at the still image level, clearly accepting that merely playing surveillance video for the trier of fact will not maximize the value of such evidence. Implicit in the Supreme Court of Canada’s ruling is the importance of competent interpretation of the video images being used as evidence.
Several decisions in the United States have approved of and endorsed the use of interpretation testimony in the presentation of video evidence, noting that the trier of fact benefits from such evidence. For example, in State of Texas v. Stevenson, 304 S.W.3d 603; 2010 WL 323562 (2010, Court of Appeals of Texas, Fort Worth), the Court noted that a trial judge need not exclude expert testimony simply because the subject matter is within the comprehension of the average jury. If the witness has some special knowledge or additional insight into the field that would be helpful, then the expert can assist the trier of fact to understand or to determine a fact in issue. At page 620, the Court of Appeal stated:
An expert may add precision and depth to the ability of the trier of fact to reach conclusions about subjects that lie well within common experience. Because the possible spectrum of education, skill and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury on a specific topic in a particular case.
Similarly, in State of Michigan v. Flake, 2014 WL 6602604 (Court of Appeals of Michigan), an arson case wherein a church surveillance video captured two men arriving at the scene of the arson shortly before the fire started and leaving shortly afterwards, the Court of Appeals upheld the admission of the interpretive evidence given by the State’s forensic video analyst. The Court noted at page 2:
Here, Sullivan’s testimony was based on his perception of the video and rationally related to it as he consistently referenced the film and the timestamps of the video. See id. at 50–51; MRE 701(a). Sullivan’s testimony also helped provide a clearer understanding of facts. MRE 701(b); see Fomby, 300 Mich.App at 51–52. The video was black and white and may have been difficult for the jury to decipher because it was shot by an infrared camera. Further, there were timestamp discrepancies in the video that necessitated explanation. Timing was noted by the court below as “critical.” Finally, as noted by the Court in Fomby, Sullivan never identified defendant on the footage. Fomby, 300 Mich.App at 52-53. Rather, Sullivan only stated that he observed subjects or individuals moving about. For these reasons, it cannot be said that Sullivan’s commentary was improper pursuant to MRE 701 or unfairly prejudicial pursuant to MRE 403. While defendant seems to be implying that the testimony could have misled the jury in some way, he does not challenge the accuracy of Sullivan’s testimony. Moreover, the jury was free to view the surveillance video and make its own factual determinations.
Assessing the correct interpretation of infrared images and determining suspect height from surveillance video are areas where expert assistance is essential. This is exemplified in State of Washington v. Dunya, 2015 WL 248708 (Wash.App.Div.1), where part of the evidence against the defendant was infrared surveillance video which showed a person near the victim’s residence at the relevant time. The State called a forensic video analyst who testified regarding the effect of infrared light in assessing the true tonal value of the image content. The analyst also conducted a reverse projection photogrammetry experiment for the purpose of determining the approximate height of the person shown in the video images. On appeal, the defendant argued that the trial judge erred in admitting the analyst’s evidence. The Court of Appeals of Washington, after reviewing the analyst’s evidence, commented at page 12 as follows:
The court did not err in concluding [the expert] qualified to testify as an expert witness. [The expert] had specialized knowledge of infrared video, had analyzed the surveillance video using reverse projection photogrammetry, and was better able to compare the skin tone and height and build of the individuals in the video. [The expert’s] testimony was helpful to the jury and relevant to identifying the person in the video. Because the surveillance video was recorded in infrared mode, the color and tone of the images was distorted. As the court observed, the video images differed from “what would be seen with … the naked eye or some other type of footage.”
The evidence given by the analyst dealt with subject matter on which the trier of fact needed expert assistance in order to form a correct judgment. It would be improper to allow a jury to speculate on tonal value and suspect height when an expert witness could provide the necessary information.
Limitations on Interpretation
Interpretation of video images has limitations. These limitations arise when a witness is interpreting video evidence in a way that exceeds the permissible limits of the video images or when a trial judge uses judicial discretion to limit the evidence of an expert witness. Though not a case involving a forensic video analyst, an example of this limitation occurred in State of Michigan v. Bynum, (2014) 496 Mich. 610 (Supreme Court of Michigan), wherein a gang expert gave evidence to the jury as to his interpretation of the surveillance video. In particular he testified that based on what was shown in the video, the defendant has acted in conformity with his gang membership regarding the crimes depicted in the video, thereby supporting the defendant’s guilt in the crimes alleged. The issue on appeal was whether this interpretive evidence that the defendant acted in conformity with character traits common to all gang members was properly admitted. In ruling that the expert had exceeded permissible limits in his interpretation of the video evidence, the Court ruled at pages 635-636:
As stated, we hold that MRE 402 and MRE 702 require a trial court to act as a gatekeeper for the admission of relevant expert testimony that will help the fact-finder “to understand the evidence or to determine a fact in issue….” Such expert testimony may meet these requirements when there is fact evidence that the crime at issue is gang-related. However, when the connection between the crime and gang activity is beyond the ken of common knowledge, the requirements of MRE 402 and MRE 702 “may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection.”44 In applying MRE 402 and MRE 702 to the facts of this case, we conclude that the trial court appropriately exercised its role as gatekeeper in determining that expert testimony about gangs and gang culture would assist the jury in understanding the evidence.
Additionally, an expert witness may not use a defendant’s gang membership to prove specific instances of conduct in conformity with that gang membership, such as opining that a defendant committed a specific crime because it conformed with his or her membership in a gang. Such testimony violates MRE 404(a). Because Bynum was prejudiced by the expert opinion that, on a particular occasion, he acted in conformity with character traits commonly associated with gang members, we conclude that he is entitled to a new trial…
Even when interpretive image analysis would be helpful to the trier of fact, there still resides in the trial judge the power to exclude such evidence. This was starkly shown in State of California v. Nero, 181 Cal.App.4th 504; 104 Cal.Rptr.3d 616 (California Court of Appeals, Second District). In this murder case, the theory of the prosecution was that the co-defendant handed the defendant a knife and that he then stabbed the victim to death. On surveillance video, the defendant was seen bending down near the back of his car and reaching for the back of his pants just before the stabbing occurred. The defendant testified that when he knelt down by the back of his car, he was merely pretending to get a weapon and that when he grabbed the back of his pants, he was merely pulling them up because they were baggy. He stated that what really happened was that the victim obtained a knife from his bicycle and stabbed the defendant’s arm. Thereafter, they struggled, the victim dropped the knife and the defendant picked it up and stabbed the victim. The defendant maintained that he acted in self-defense.
The defendant called a forensic imaging expert who testified during an Evidence Code Section 402 hearing in the absence of the jury. The expert testified regarding a number of technical aspects of the video evidence and further, stated that he did not see the co-defendant hand the defendant a knife, nor did he see him reach for anything when he bent down at the back of the car. He also testified that he saw the victim reach for something on the bicycle that appeared to be a knife sheath or similar object.
The trial judge ruled that the expert would not be allowed to testify about his lack of observations of a knife but that he could testify about other technical aspects of the video. The trial judge stated:
[H]e’s not qualified. Well, he’s qualified on the technical aspects of a video and the reasons for certain quality, the reasons in glitches and lighting, things like that. But I am not going to allow him to come in here and tell us he’s a video expert, tell us he didn’t see a knife, he didn’t see this, he didn’t see that. That’s what you folks are going to have [to] argue from the evidence.
As noted by the Court of Appeals [the published version of the decision does not contain the ruling regarding video and image analysis]:
The trial court ruled that [the expert] could testify about what he does. He could not, however, offer an opinion as to what was on the bicycle frame. “[W]e knew that before. And he says he didn’t see it, a knife pass from the hand of one defendant to another. Well, that’s his opinion. He doesn’t see it. I don’t know. Maybe the jurors will see it. Maybe they won’t see it either. The attorneys can argue that. And they have the video there. …It’s a question of fact the jury is going to have to make a decision on, and it’s not something that an expert, I think, should be able to give an opinion on, when that’s something the jury has to decide.” The court, however, told Nero’s defense counsel that he would be allowed to talk about his expert experience, what he did with the videos, the glitches and gaps, and the technical aspects of the video.
[The expert] then testified before the jury. He discussed the video’s low resolution; where light was coming from; a jump in action which indicates that the video is missing several frames; and that one of the video camera angles does not start until after the incident began. [The expert] was not asked to give and did not give an opinion about what any of the videos showed, e.g., a hand-off of a knife from Brown to Nero.
During his closing argument, the prosecutor argued that Brown handed Nero the knife. He commented on the video expert’s testimony: “Now the video expert gave us a lot of information about videos. But you remember a couple things that he did not do. He never made an opinion as to what he sees. He never makes any type of opinion. What we do have from this color view angle is we have that portion that is skipped in the black-and-white video.”
Before defendants were sentenced, defendant Nero filed a motion for a new trial in which he argued that the court “eviscerated” his defense by precluding [the expert] from testifying he saw the victim, Yates, reach for a knife and did not see Brown hand a knife to Nero. The prosecutor then compounded the error by commenting in his closing argument that [the expert] never offered an opinion about what the video showed. Brown’s counsel made a similar argument about the impact of the court’s ruling limiting the video expert’s testimony. The trial court denied the motions.
The issue before the Court of Appeals was whether the trial judge’s restriction of the expert’s evidence was within his discretion and if so, whether that discretion was exercised properly in this case.
The Court of Appeals stated:
Expert testimony is not necessarily objectionable because it “encompasses” an ultimate issue to be decided by the trier of fact… Although courts have allowed experts to testify on matters usually reserved for the trier of fact, courts generally do not allow an expert to testify that the defendant committed the crime… Thus, while an expert’s testimony may sometimes encompass an ultimate issue to be decided by the trier of fact, a witness cannot express an opinion concerning the defendant’s guilt or innocence. (People v. Torres (1995) 33 Cal.App.4th 37, 46-48.)
Here, however, defendants complain that [the expert] was not allowed to testify that, for example, because of “lighting in the videos,” Brown never handed a knife to Nero. Such testimony, however, is tantamount to an opinion concerning Brown’s guilt or innocence. Similarly, whether [the expert] saw Nero get a weapon from underneath his back bumper was not an observation within his area of expertise. This is different than [the expert] testifying—hypothetically—about the video quality or a glitch occurring at that time, to help the jury determine what Nero was doing when he bent down at the back of the car. [The expert’s] opinion about what Nero was doing was not a proper subject of expert testimony.
That being said, we do not perceive the trial court’s ruling as precluding defense counsel from asking the expert about the technical aspects of any scene, for example, in which Brown, according to the prosecutor, handed Nero a knife. [The expert] could have, and in fact did, testify about shadows, lighting and “glitches.” While playing the video and going frame by frame (the record is unclear which specific portion of the video was being played), [the expert] noted that one camera view was “a little bit hard to see because . . . the exposure of the video and the lighting in the particular scene make it so that this video is a little bit dark, and it’s a little bit difficult to see.” Such testimony is appropriate to help the jury evaluate what it was seeing on the video. Anything more—namely, the video expert witness’s proposed testimony that Brown did not hand Nero the knife or that Nero did not retrieve a weapon from underneath his car—was an opinion about defendants’ guilt or innocence. We express no opinion regarding whether the court could have admitted the challenged testimony; we merely hold that the court did not abuse its discretion by excluding it.
This case provides a cautionary tale. It reaffirms the discretion that trial judges have to exclude evidence that they view as being unhelpful to the jury or as being determinative of an ultimate issue. The Court of Appeal noted that the excluded evidence was an opinion about the defendant’s guilt or innocence and on that basis the trial judge properly exercised his discretion in refusing admission. Yet the Court left open the possibility that the trial judge could have justifiably admitted the expert evidence as well.
In other cases, the court will admit such evidence but ascribe little or no weight to it. For example, in Paskalidis v. Caprice Hospitality Inc., 2011 CarswellBC 3296 (British Columbia Supreme Court), a civil action for assault and battery, the defense called a forensic video analyst who, among other things, narrated the video evidence for the Court. The Court ruled that since the analyst was not present when the event occurred and did not know any of the participants, his opinion was based solely on his viewing of the video evidence and his understanding of video technology. The Court found that some of the opinions of the analyst were not supported by the video evidence and were in conflict with the evidence given by some witnesses. The Court concluded by finding that while the interpretive evidence was admissible, it was largely unfounded and unhelpful and therefore entitled to little weight. Further, the quality of the video images and frame rate adversely impacted the value of the video evidence.
As seen in Paskalidis, not all courts find interpretive evidence to be helpful. In some cases, the courts will disallow interpretive evidence on the basis that the trier of fact does not require expert assistance. In Monetti v. City of Seattle, 875 F.Supp.2d 1221 (2012, United States District Court, D. Washington), the Court ruled inadmissible expert opinion evidence for failure satisfy Rule 702(a) which requires that “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue”. Yet in other cases, expert assistance will greatly assist the trier of fact in understanding the evidence and utilizing it to its utmost, with the proviso that the expert must not overdrive the evidence itself and inject personal opinion not objectively supported by the images.
Who Should Provide Interpretive Evidence?
In order to be of most assistance to the trier of fact, the witness providing interpretive evidence should be an expert in forensic video evidence. While a non-video expert police officer would have the ability to narrate the overall events transpiring on video, such evidence would not inject any expert assistance into the technical interpretation of the video evidence. A police officer would not be able to address issues of frame rate, compression artifacts and other technical issues that impact upon the proper interpretation of video evidence. Of greater concern is that an untrained police officer may in fact misinterpret the video evidence due to a fundamental misunderstanding of these technical issues. Expert consultation will serve to maximize the evidential value of the video evidence.