In January 2020, James Wells was sentenced to life imprisonment for the April 2012 murders of two U.S. Coast Guard employees, who were co-workers of Wells on Kodiak Island, Alaska. He was originally convicted in 2014 and his convictions were reversed by the Ninth Circuit Court of Appeals in December 2017. Following a retrial that ended in October 2019, Wells was again convicted by a federal jury of two counts of first degree murder and two firearms offences. The jury found as a fact, based in part on USCG CCTV video, that Wells had driven past the main gate at Base Kodiak in his Dodge truck on his way to the Kodiak Airport, and returned to his residence 34 minutes later. However, the video also showed that a SUV belonging to Wells drove past the front entrance of the USCG shop where the murders occurred during that 34-minute period of time. The jury found as a fact that Wells drove his Dodge truck to the airport where he swapped vehicles, drove to the USCG shop in the SUV, committed the murders, and then returned to the airport where he again swapped vehicles and drove his Dodge truck home.
In advance of the retrial, the defence announced its intention to present evidence from a series of experts. One of the proposed experts was a forensic video analyst, whose evidence was intended to cast some doubt on the evidence of the expert witnesses called by the prosecution. The prosecution filed motions in limine seeking exclusion of six proposed defence expert witnesses (United States v. Wells, 2019 WL 3229912 (U.S. District Court)). This case study focuses on the motion regarding the forensic video analyst proposed to be called by the defence.
A word about the test for the admissibility of expert evidence. Before a witness may testify as an expert, a district court must make three express findings. First, the court must find that the proposed witness is qualified to offer expert testimony. Second, the court must find that the witness has applied reliable principles. Third, the court must find that the witness’s testimony may help the jury understand evidence or determine a fact at issue in the case. Finally, the evidence must also be reliable and relevant. The proponent of the expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence.
The defence sought to present expert testimony from a forensic video analyst who uses photogrammetry to analyze digital evidence. The defence proposed to have the analyst testify in three areas: (1) his conclusions based on his review of the surveillance video from the Coast Guard station, which shows a vehicle of interest entering and leaving the base close to the time of the murders; (2) his opinion as to whether the prosecution expert witnesses who analyzed the video adhered to recognized best practices; and (3) whether the investigative techniques used by those witnesses were tainted by confirmation bias.
Vehicle Identification
The prosecution argued that the analyst was not qualified to render an opinion on vehicle identification because he is not an expert in identifying vehicles. The Court found that expertise in vehicle identification is not required to undertake a comparison between questioned and known vehicles. To require that would mean that an analyst would also need to be an expert in any subject matter being compared, a proposition inferentially deemed unreasonable. However, the Court found that since photogrammetry is required to enhance and measure vehicles for comparison purposes, the analyst was qualified to do so. As an aside, whether photogrammetry is actually essential to the task is debatable but that is what the Court found, based on the evidence presented by the analyst and argued by the defence.
Best Practices
The analyst was found to have sufficient qualifications to testify as to accepted methodology and best practices and to opine as to whether other analysts used sound methodology in reaching their conclusions. The prosecution argued that this knowledge did not permit the analyst to opine as to whether prosecution experts were sufficiently qualified to engage in image analysis and comparison as that was the function of the trial judge. The Court agreed with this argument and prohibited the analyst from expressing any opinion as to whether the prosecution experts were qualified to testify or their veracity, as that was not the expert’s role, but he was permitted to testify as to his opinion on the acceptability, accuracy, and reliability of the methods and techniques used by other experts and the adequacy of their qualifications generally. This testimony was relevant to the weight the jury should accord the testimony of other experts.
Confirmation Bias
The Court ruled that the analyst was not qualified to offer any opinions as to whether the opinions of the prosecution experts were tainted by confirmation bias as he possessed no qualifications to do so. The Court noted that the analyst’s curriculum vitae showed no formal education or experience in assessing confirmation bias, no details of relevant knowledge or skills related to assessing confirmation bias, and only one ten-hour course related to the subject. The Court did find that contrary to the analyst, a psychologist to be called by the defence was appropriately qualified to express such an opinion.
Relevance
The prosecution argued that the analyst’s evidence was not relevant as it would not assist the trier of fact in deciding a fact in issue. This submission was rather surprising given that the prosecution had done or was going to do the following things: rely heavily upon the video evidence to argue guilt; had the video reviewed, enhanced, or analyzed by at least eight people, some of whom were expected to testify at trial; staged a recreation using the SUV; present expert testimony on image comparison regarding the SUV; and retained a Honda engineer to express an opinion as to the make of the questioned SUV. The Court ruled that given the attention the prosecution had given to the video evidence and vehicle identification, the evidence it intended to lead at trial, and the defence position that it was not the defendant’s vehicle in the video, the analyst’s evidence is relevant.
Analysis of the Issues and Decision
Regarding the expertise required to offer an opinion on vehicle identification, the prosecution’s position may at first glance seem unreasonable but as noted in a previous article on this website, the Forensic Regulator in the United Kingdom issued directives in 2019 that would specifically prohibit opinion evidence on vehicle identification if the analyst was not also an expert in that area. Thus, the position taken by the prosecution was not without precedent or merit. I do not share the view of the Forensic Regulator and have found no case law in Canada, the United States or the United Kingdom that requires subject matter expertise in order to provide an image comparison opinion.
The prosecution’s argument that the analyst’s evidence was not relevant or helpful to the trier of fact was, frankly, absurd. The prosecution cannot dedicate extensive resources to a central issue in the case and then seek to prohibit the defence from calling expert evidence on that issue. While a defendant is not entitled to a perfect trial, he is at least entitled to a fair one.
Perhaps the most interesting aspect of this case is expert overreach. Cases get reversed on appeal and sent back for retrial when experts, and the attorneys who present their evidence, seek to conflate the abilities of the expert beyond the actual qualifications of the expert and the true role of an expert witness. It is not the role of an expert witness to opine as to whether an opposing proposed expert is qualified to testify, let alone whether the expert should be believed. Those are responsibilities of the trial judge and the jury, respectively. Further, confirmation bias is a complex topic well outside the ken of most forensic video analysts. Absent extensive formal cross-training on this topic, an analyst is simply not qualified to venture into psychology. A ten-hour course qualifies no one to be an expert in anything. Securing a result at trial that would not likely withstand appellate review is a pyrrhic victory. Defence counsel was clearly aware of this given that a properly qualified psychologist was being called to testify about confirmation bias. Why the defence wanted a forensic video analyst to dip his toes into the psychology pool is rather puzzling.
The takeaway from this case? Expert witness testimony has clear limitations – one such limitation is the expert’s qualifications, which circumscribe the topics on which the expert can offer opinions. Though experts may wish to opine in areas outside their qualifications, resist the temptation. Know your limits and stay within them.