One of the contentious aspects of providing expert video-related evidence in court is the extent to which the expert can provide narrative testimony about what is shown in the video. Judges are required to act as gatekeepers and ensure that only properly admissible evidence is presented. In doing so, judges are required to follow rules of evidence and must take into account judicial precedent, but discretion is a key feature in deciding on narration. The law does not permit all narration, nor does it prohibit all narration. Finding the sweet spot is central when planning to give expert evidence in court, whether as a technician or an analyst. 

Let’s look at some recent cases. In Scheffler v. Lee, 2019 WL 2997395 (US District Court, W.D. Kentucky), a civil case, the defendant sought to limit the evidence that the plaintiff’s expert would be permitted to provide in court. The expert was not a video expert but rather was tendered as an expert in “police programs, practices, policies, procedures, and actions.” I will limit my comments to those aspects of the proposed testimony that dealt with video evidence. This case is illustrative of the liberal view that some experts possess which emboldens them to say whatever they want to say, whether or not they are actually legally permitted to do so. The plaintiff’s expert offered a series of opinions, all of which were ruled inadmissible and were broadly categorized as impermissible legal opinions, testimony regarding the beliefs of others, and unhelpful factual testimony. In short, all of his proposed evidence was excluded and he was not permitted to testify. 

The Court began its analysis by summarizing the legal principles involved in determining the admissibility of expert evidence. One of those principles is that the expert’s opinion must be reliable, meaning that the expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice in the relevant field (case citations omitted). Federal Rule of Evidence 702 offers additional guidance, including:

(1) Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying;

(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;

(3) Whether the expert has adequately accounted for alternative explanations;

(4) Whether the expert is being careful as he would be in his regular professional work outside his paid litigation consulting; and

(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. 

Experts are not permitted to express opinions on legal conclusions. 

In this case, the expert stated many legal conclusions including, “The video showed Mr. Scheffler’s action [sic] were certainly not ‘fighting or in violent, tumultuous, or threatening behavior’ or even behaving in a close approximation of such actions.” He also offered opinions about what other people knew or believed, including, “The videos of the public walking past Mr. Scheffler and the Galt House security staff on the date of the incident clearly show a lack of notice on their part in regard the interactions taking place at the concierge desk.” In excluding all of the expert’s proposed evidence, the Court ruled that he was not acting within the parameters expected of an expert witness. 

In R. v. Pathan, 2020 ONCA 108 (Ontario Court of Appeal), an appeal from a conviction for murder, the appellant argued that the trial judge erred in permitting, at the request of his co-defendant, expert narration of what surveillance video showed. The appellant took no issue with the expert testimony that addressed technical aspects of the video, only the narration. In narrating what could be seen, the video expert described the direction in which the co-defendant’s gun was pointing, who fired a gun, and the number of shots that were fired. The appellant argued that in doing so the expert had gone too far. The Court of Appeal disagreed and found that the trial judge properly exercised his discretion and further, had cautioned the jury that it was ultimately their role to decide the facts. 

Analysis 

Though it is within the discretion of the trial judge, video experts (technicians or analysts) will generally be permitted to narrate what is visible in the video images. What they are not permitted to do is give opinions on legal issues; comment on what someone in the video intended, was thinking, or why they did what they did; express opinions on matters outside their area of expertise; or speculate. The evidence the expert planned to give in the Scheffler v. Lee case was properly ruled inadmissible. The expert’s proposed testimony violated most of these rules. A competent expert, aware of expert opinion limitations, should not write a report such as the one presented in this case, nor should an attorney try to have such obviously flawed evidence admitted at trial. Yet in this case both of these things happened. In attempting to deliver far more than he was permitted to deliver, the expert (and the attorney) did a disservice to the client who retained both of them to provide professional assistance. 

Lest R. v. Pathan be misinterpreted, this case does not stand for the proposition that video experts are permitted to opine upon who fired a gun and how many shots are fired. Rather, what the trial judge decided, and the Court of Appeal approved, is that on the specific facts of this case it was open to the expert to comment on those things. In reality, image quality and frame rate limitations often do not permit an expert to assess firearm usage. Here, the facts were such that the expert was able to draw upon his or her knowledge and provide meaningful narration which was of assistance to the jury. That is the very essence of expert testimony.