In my “Courtroom Testimony for Expert Witnesses” course, I discuss the importance of multi-modal learning.  While the delivery of an expert witness’s evidence will, by necessity, be largely testimonial, it is essential that the expert witness incorporate other methods of delivering the evidence as well in order to be a truly effective communicator.

The ability of the expert to use analogies for explaining technical content is very effective.  It allows the trier of fact to draw on their own personal experience in understanding a topic that is being presented.  So too is the use of demonstrations by the expert witness to communicate an important point.  The use of courtroom demonstrative tools is also meritorious.  For example, when leading forensic pathology evidence in murder trials, I avoid showing the trier of fact any internal autopsy photos.  It is simply too much information and often more graphic than helpful to a jury.  It also raises the issue of whether the prejudicial effect of such photos outweighs their probative value.  When the forensic pathologist cannot effectively discuss anatomical details by words alone, I use a life-size medical school skeleton on wheels to assist the witness. By having the expert show relevant locations on the skeleton, the jury gains a more informed understanding of the medical evidence.  All of these methods of effective communication need to be considered, discussed and planned in advance of trial.

Forensic video analysts are fortunate in that the evidence they present has a visual component.  Video evidence is almost always of interest to the trier of fact. Nowadays, it is expected that most serious cases will have some form of video evidence, whether it be crime scene video, CCTV surveillance images or smartphone video.  The least effective way of presenting video evidence is to simply hit “play.”  Much more effective methods incorporate technical analysis as well as interpretation and narration of the images.  In addition to testimony, the forensic video analyst may incorporate such visual presentation methods as:

• Image clarification
• Image stabilization
• Highlighting persons or objects of interest
• Motion tracking by use of colored arrows, colored dots or highlighted circles around the relevant person or object
• Annotating images with words, circles, line and arrows
• Charts that show a comparison of questioned and known images together with annotations

Experts should meet with the attorney that is leading the expert evidence to discuss the visual components of the evidence.  Together, they should come up with a preferred method of presentation (Plan A).  This collaboration is important as the attorney may want the expert to accentuate or limit certain aspects of the visual presentation and this is not something that should be decided upon in the courtroom.  Advanced preparation is essential.

While Plan A may seem perfectly proper and acceptable to the expert and the attorney leading the evidence, opposing counsel may object to Plan A.  Such objections, as they relate to forensic video analysis evidence, typically involve one or more of the following complaints:

• The use of highlighting, arrows, tracking and annotations places too much of a focus on the suspect
• The attention of the trier of fact is wrongly focused on only one aspect of the images
• It amounts to a “blueprint” for conviction
• It is confusing for the trier of fact
• It has been done improperly

Sometimes the real but unstated objection is simply that Plan A is so powerful that it is difficult to challenge the forensic evidence.

When a judge is faced with such evidence and a strong objection from opposing counsel, it is of critical importance that the expert and the attorney presenting the evidence be able to competently articulate the forensic merit of Plan A.  The judge must be satisfied on the basis of the expert testimony and the legal submissions of counsel that Plan A is legally permissible.  Case law in both Canada and the United States addresses these issues.  I have been fortunate in that I have almost always been able to use Plan A in court. However, I always have a Plan B.

A recent example where the court rejected Plan A in a forensic video analysis context is found in the 2017 Ontario Court of Appeal decision in R. v. Barreira, 2017 ONSC 1665.  In this case, several surveillance videos with timestamps of varying accuracy were entered into evidence.  Each video exhibit was sufficiently authenticated and independently admissible. The issue that arose was the admissibility of a composite video exhibit that was created using the individual videos. The forensic video analyst created the composite video, reducing 84 hours of video to 39 minutes, as follows:

• The original date and time stamp for each video remained visible and a second time clock was added for the purpose of lining up the cameras in the correct sequence of events.  The second time clock was accurate with a margin of error of plus/minus one minute.
• The video files were resized for consistency and adjustments were made to the playback speed to approximate real time.
• People of interest were circled and their names were added in text as well as their direction of travel.
• The name of a business was added in text.

The identity of the people of interest in the composite video was established by admissions made by the defendants and several witnesses who testified at trial.  The forensic video analyst had no independent evidence regarding identification of the people of interest as he was simply adding the information provided to him by investigators.

The court ruled that the individual videos were admissible as they had been properly authenticated.  The composite video served to organize the individual videos into a chronological timeline (within a margin of error) and was ruled to be helpful to the court with the probative value of the composite video outweighing any prejudicial effect.

However, the court further ruled that the circles, text graphics, subtitles and commentary regarding the identification of the individuals and the naming of any businesses were not admissible and must be deleted from the composite video.  The basis for this finding was that the analyst was merely inserting hearsay evidence into the exhibit rather than giving an opinion on identification himself.  Regarding the continuous time clock that was added, the court found that having a running clock showing the hour, minute, second and hundredths of a second gave a mistaken impression of accuracy when in fact the events depicted could have occurred within a two minute margin of error.  Accordingly, the continuous time clock had to be removed and substituted with two time clocks, one showing the continuous time minus one minute and the other plus one minute.  The seconds and hundredths of seconds were to be removed as well.

The removal of the circles and text additions are within the discretion of the court. This is an example of a court finding that they were inappropriately added.  Put another way, the court rejected Plan A.  Though it would be incorrect to extend this ruling to all cases as these decisions are made on a case by case basis, it is an excellent example of the need to have a Plan B ready to go should such a ruling be made.

When a ruling is made, such as the one in Barreira, that negates the ability to use Plan A, the shift to Plan B should be virtually seamless as the expert and the attorney presenting the evidence should have already contemplated such a possibility. It should be as simple as opening up a different computer file and carrying on with the Plan B presentation. That is sign of professionalism – being prepared and able to weather changes with relative ease.  An adverse ruling on Plan A should rarely result in the need for an adjournment so that a new strategy can be developed.