Several times a year I conduct a comprehensive search of recent reported case law on topics related to video evidence, forensic video analysis, and pertinent expert witness testimony issues. This provides me with new case law that illustrates how courts are assessing and deciding relevant litigated issues on these topics. This article focuses on the issue of image interpretation and rulings made by courts in the United States during the latter half of 2021. For each case, I will describe the facts, the issue, the ruling, and the takeaway.
Phillips v. Hinds, 2021 WL 4173988 (U.S. District Court, W.D. Michigan, Southern Division)
The plaintiff brought an action against the defendant police officer claiming that the officer violated his Fourth Amendment rights by using deadly force in connection with his arrest. The defendant filed a Motion for Summary Judgment seeking to have the case dismissed for lack of merit. The defendant shot the plaintiff in the chest with an AR-15 rifle during apprehension because he believed the unarmed plaintiff was armed.
Both parties relied upon video evidence tendered by the defendant to support their respective positions. The defendant offered no explanation as to how the “synchronized views” recording was made, who made it, or whether the date and time stamp was accurate. Since the plaintiff accepted the accuracy of the video exhibit, the Court considered it despite the lack of foundation evidence. The Court noted that the quality of the images and the angle of the camera to the event made it impossible to determine facts that were critical to the pending motion. The forensic video analyst presented by the defendant confirmed these difficulties and was unable to assist the Court beyond confirming that it was impossible to know with certainly whether there was anything in the plaintiff’s hands at the relevant time because most of the view of the plaintiff was obstructed by a parked vehicle.
The Court concluded that the video recording could not support a dispositive determination on the reasonableness of the defendant officer’s actions one way or the other because it was unable to provide conclusive evidence on whether the plaintiff was armed. Because there was a genuine dispute of material facts regarding whether the defendant officer had an objectively reasonable basis for concluding that the plaintiff posed an imminent threat of serious bodily injury, the motion was denied, and the matter was remitted for trial where a jury would be responsible for fact finding.
Analysis
This case illustrates the fact that even with expert assistance not all video recordings can provide definitive proof on facts in issue. To the credit of counsel for the defense, expert evidence on image interpretation was presented so that the Court could be in the best possible position to assess the facts. However, counsel did not lead evidence as to how the video was created, who created it, and whether the date and time stamp was accurate. These are key authentication elements and counsel should have addressed those issues, even if opposing counsel did not raise authenticity as an issue. It is ultimately the court that must be satisfied that authentication has been established, whether or not counsel are concerned enough to formally address it.
The takeaway from this case is that expert evidence from a forensic video analyst should be presented in court when image interpretation is an important issue. Further, authenticity should be established either by the calling of evidence or the presentation of a formal and detailed stipulation. That will avoid the court having to comment on the absence of authentication evidence as occurred in this case.
Lee v. Lumpkin, 2021 WL 5866686 (U.S. District Court, N.D. Texas, Fort Worth Division)
In this habeas corpus application, the petitioner argued in part that the trial court erred in convicting him of aggravated robbery with a deadly weapon and unlawful possession of a firearm because the prosecution failed to prove that he was in possession of a real firearm. Amongst the evidence considered on this point was the eyewitness testimony of the robbery victims and the evidence of a forensic video analyst.
The analyst testified that he examined the surveillance videos for two of the robberies and noted that the weapon appeared to be “a dark-colored firearm” with “a protruding hammer…on the back of the firearm.” He further opined that it appeared to be a revolver and explained why the appearance of the weapon caused him to form that opinion, adding that being the owner of several firearms himself, he saw nothing to suggest that the firearm was not a real firearm. The Court found that the analyst’s evidence was of value to the jury and that together with other evidence on this point, the finding of the jury was reasonable. For this and other reasons, the petition was denied.
Analysis
This case illustrates the value that expert interpretation can bring to the court when making important findings of fact. Interestingly, the analyst’s evidence drew on his experience as a forensic video analyst and his personal knowledge of firearms. Since expert witnesses are only permitted to opine on the area of expertise for which they have been specifically qualified, the analyst should have been qualified as an expert in both areas, but counsel may have been reluctant to raise this flag and draw opposition. This is certainly not the first case wherein a forensic video analyst also offered opinion testimony based on personal firearms knowledge. Expert witnesses should be careful not to stray outside their court-qualified area of expertise without the approval of counsel. The expert in this case did nothing wrong as he simply answered the questions put to him by counsel without objection.
Davis v. Chapman, 2021 WL 4478747 (U.S. District Court, E.D. Michigan, Southern Division)
In this habeas corpus petition, the petitioner argued in part that the trial judge erred in permitting the state’s forensic video analyst to testify about his interpretation of key video evidence. The analyst had been qualified as an expert witness and described to the jury what was shown in the CCTV recording including the movements of each of the people observed, though he did not identify any of them. As the persons of interest moved farther away from the camera and became pixelated, he provided detailed testimony to assist the jury in tracking the pixels. The petitioner argued that the analyst should not have been permitted to provide this interpretive narration because it invaded the province of the jury.
The petitioner unsuccessfully made the same argument at trial and before the Court of Appeals. The Court of Appeals found that most viewers would require expert assistance once the people of interest moved away from the camera and became pixelated. The U.S. District Court hearing the habeas corpus petition found no merit in this claim and agreed with the rulings by the state courts.
Analysis
This case is one of a series of cases from Michigan over the past several years wherein the propriety of a forensic video analyst testifying in either a lay witness or expert witness capacity about the interpretation of video images has been challenged. As in the present case, the courts have previously approved of this type of interpretive testimony and have found it to be of assistance to the jury and that it does not supersede the jury’s role as fact finder.
The takeaway from this case is that when interpreting video evidence, analysts should be objective, describe only what can be clearly observed, and provide the necessary technical assistance to aid the trier of fact in understanding more challenging images. Further, it is rarely the role of the analyst to opine on the identification of people observed in the video. Such opinions should be reserved for witnesses with prior familiarity with the people of interest and the trier of fact.