Rarely can we expect the trier of fact to watch video evidence and fully understand both the overall picture of what happened and specific pertinent details. The trier of fact does not have the luxury of relevant training and ample time to examine the media. It is for this reason that forensic video analysts are frequently called upon to narrate video evidence in court so as to provide this much needed assistance to the trier of fact.
Several decisions in Canada and the United States have approved of and endorsed the use of narration in the presentation of video evidence, noting that the trier of fact benefits from such evidence. A good example of this is State of Texas v. Stevenson, 304 S.W.3d 603; 2010 WL 323562 (2010, Court of Appeals of Texas, Fort Worth), wherein 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.
In this murder case arising out of a convenience store robbery, the State’s forensic video analysis expert overlaid 911 calls onto the store’s surveillance video and developed a PowerPoint presentation to show what occurred during the robbery. As the presentation was shown, the expert narrated the events as they occurred. The defendant objected to the expert’s evidence, relying on a Daubert analysis.
The Court noted that before admitting expert testimony under Texas Rules of Evidence 702, the trial court must be satisfied that three conditions have been met:
- The witness qualifies as an expert by reason of the witness’s knowledge, skill, experience, training or education.
- The subject matter of the testimony is an appropriate one for expert testimony.
- Admitting the expert testimony will actually assist the fact finder in deciding the case.
Commenting on the value of expert narration, the Court stated at page 34:
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.
When considering whether a trial judge should permit expert testimony, the court must consider the qualifications of the expert. The more complex the field of expertise, the more conclusive the expert’s opinion, and if the expert’s opinion is critical to solving the issue before the court, the more important the expert’s qualifications become.
After noting that there had been an unsuccessful Daubert challenge at trial, the Court of Appeals held that it was reasonable for the trial judge to conclude that the expert could assist the jury by clarifying what they were seeing in the video, particularly with regard to height comparisons. This case is helpful in describing what use may be made of a forensic video analyst at trial.
In R. v. Mohamed, 2009 CarswellOnt 463 (Ontario Superior Court of Justice), the defense objected to the narration evidence provided by the detective, who was not called as an expert witness. On this point, the Court stated at pages 5-6:
17 It takes a number of times watching the videos, even in the slowed down format, to make any sense of how the action moves from quadrant to quadrant. Sometimes it is possible to see the same action in two different quadrants from different vantage points at the same time, which can also be quite disorienting at first. Identification of the participants was not an issue at trial. However, it is still difficult at times to tell which persons are which, or to know what part of the screen you should be watching in order to follow the events at issue.
18 The Crown proposed introducing both formats of the videotapes through Detective Fowler, who is intimately familiar with the footage having watched it probably hundreds of times. I ruled that Detective Fowler would be permitted to testify as to how the video cameras were set up and how to watch the action through the four quadrants sequentially. Further, I permitted Detective Fowler to pause the video at points and to direct the attention of the jury to particular individuals or areas where those aspects were of particular importance from the perspective of the Crown. On cross-examination, defence counsel had the same opportunity to have Detective Fowler point out relevant portions that were important from the perspective of the defence. On the voir dire, I had the benefit of watching the videos without explanation, and then having the Crown guide me through it. This guidance made an enormous difference to my ability to view the video properly, even after the fact when I was viewing it by myself on my own computer. In my opinion, it would have been of considerable assistance to the jury to have this sort of assistance when first watching the video.
19 Defence counsel conceded that in their final addresses to the jury all counsel could use the videos as an aid, that they could illustrate their points by slowing the footage and stopping and starting it, and that essentially they could do in their closings what the Crown did during her submissions to me on the voir dire. It seems to me that at the end of the trial, after all the evidence has been concluded, is not the point in time when the jurors should understand for the very first time what is going on in the video. Since it would not be appropriate for the Crown to provide any type of narration when the video is first being introduced and played for the jury, such assistance was appropriately provided through a knowledgeable police officer such as Detective Fowler.
20 I fully agree with the point made by defence counsel that Detective Fowler’s interpretation or opinions as to what is happening on the video are not properly admissible before the jury. It is for the jury to decide what conclusions to reach as to the nature of the conduct of the various parties depicted in the video. Therefore, careful instructions were given to Detective Fowler as to the types of things he could and could not say, and he was very careful in his testimony not to deviate from that. Interestingly, after the evidence had been presented in this manner, neither counsel felt the need to actually use the video footage in the course of their closing addresses to the jury.
By using the video evidence as a true aid to the trier of fact, rulings such as these should be commonplace. The key is for the narrator to be objective and helpful, not partisan.
Similarly, in State of Michigan v. Flake, 2014 WL 6602604 (Court of Appeals of Michigan), the Court upheld the admission of the narration 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.
An issue that sometimes arises is whether a police officer, not trained in forensic image or video analysis, is permitted to provide such narration. In Fontaine v. People of the Virgin Islands, 2012 WL 1264535 (Supreme Court of the Virgin Islands), the trial judge permitted a police detective to narrate the surveillance video evidence as it was played for the jury in this homicide trial, even though the detective was not qualified as an expert witness nor was he a witness to the shooting itself. In narrating the video evidence, the detective went beyond what could be concluded from the video evidence. On appeal, the Supreme Court ruled that the trial judge erred in allowing the narration evidence. Consistent with other rulings, the Court held that if an individual is not properly qualified as an expert, did not witness the depicted events when they occurred and lacks a greater ability to correctly interpret the video evidence than the jury, that individual is prohibited from testifying as to what is being shown in the surveillance video. A new trial was ordered as a result.
In State of Idaho v. Almaraz, 2012 WL 1948499 (Supreme Court of Idaho), the State called a forensic video analyst who narrated the surveillance video evidence for the jury and opined as to the exact moment when the victim was shot. On appeal, the Supreme Court ruled that the trial judge properly exercised his discretion in permitting such evidence at trial on the basis of the expert’s experience in analyzing surveillance video and his personal experience of having seen people shot in the past.
In State of Ohio v. George, 2016 WL 6906181 (Court of Appeals of Ohio), at issue in this murder trial was whether the trial judge erred in qualifying the LEVA certified forensic video technician as an expert witness. The expert performed the following tasks and gave evidence on the following topics:
- Exported the surveillance video from two locations.
- Hashed the exported video to ensure that the working copies were faithful copies of the exported video.
- Created a timeline of the relevant video evidence.
- Narrated the contents of the video.
The expert did not offer any identification evidence.
The Court held that the expert was properly qualified as an expert witness given his credentials and the type of evidence he gave to the jury. The Court was not critical of the narration evidence provided.
As valuable as video narration can be, even when given by an expert witness, there are limitations as to what evidence can be provided. This was exemplified in State of Texas v. Gonzales, 2006 WL 820387, not reported in S.W.3d (Court of Appeals of Texas, Fort Worth), where the Court of Appeals was critical of an expert witness for ascribing intention to the actions of a defendant in video images. It is not appropriate for a narrative witness to go beyond the objective content of the images themselves and inject a personal opinion about what an action meant.
Video evidence is commonplace in many cases that are litigated in court. The interests of justice are not served if we require the trier of fact to decipher the video evidence without providing expert assistance. We want the trier of fact to reach proper and justifiable conclusions. This permits the use of narration evidence so long as the narrator is qualified and does not exceed the limits of permissible narration.