The function of a trial court is to decide the legal dispute that is brought before it by the litigants.  In a criminal case, it is the state that charges the defendant with a crime and commences a prosecution.  When the case reaches the trial stage, the prosecution (and sometimes the defence) will present evidence for the court to consider.  With few exceptions, the court is a passive recipient of this evidence.  The prosecution and defence will each decide what evidence they will present.  The court plays no role in this selection of evidence.  Should a judge start suggesting what evidence should be presented, the judge may fairly be criticized for failing to remain impartial.

The court expects the prosecution and defence to present their best evidence.  In turn, the prosecution and defence rely upon their witnesses to give them the best evidence to present.  Lawyers are not technical experts and we rely upon others to provide us with evidence that meets the high standards that are expected in court.  Investigators who gather evidence also rely upon others to provide them with evidence.  The farther removed an evidence provider is from the court process, the more likely it is that an error may be made regarding the quality of evidence presented.

An example of how this can go awry is a December 2016 Nottingham, United Kingdom murder prosecution that faltered because inferior video evidence was relied upon by the prosecution.  In R. v. Alasow, Farrukh, Qasim and Qamran(not reported), the victim was the passenger in a motor vehicle being driven near the victim’s residence.  Three vehicles surrounded the victim’s vehicle in an ambush-style attack. A number of people surrounded the victim’s car and one of the attackers reached inside and stabbed the victim in the chest.  The attackers then fled, and the victim staggered out of the car and collapsed on the nearby sidewalk, later dying from his injuries.  Central to the case for the prosecution was CCTV video of the event that showed what occurred but was not of sufficient quality to permit identification, and iPhone video taken by a nearby resident that captured portions of the event from an elevated angle.  Based on the video evidence and other evidence, all four defendants were charged with murder, it being the belief that one of them was the person who fatally stabbed the victim.  It was not until mid-way through the trial that a question was raised as to whether the iPhone video that was shown in court was the best version of that video.

The prosecution had relied upon the iPhone video that the Nottinghamshire Police investigator had obtained from the police video collection unit.  There would have been no reason for the investigator or any of the lawyers to know whether that video was the best available version.  A forensic video expert was asked, midway through the trial, to examine the iPhone video that was entered into evidence and played for the court.  Upon doing so, the expert determined that this version (.wmv format) was a compressed version of the original.  The expert asked for the original video evidence and it was discovered that the original version (.mov format) was still in the video collection unit.  Once that video was obtained and shown to the court and the lawyers by the expert, it became readily apparent that the iPhone video evidence that had been used thus far in court was of inferior quality. The original video was of much better quality and from that video, it became apparent that none of the four defendants was the one who actually stabbed the victim, contrary to the prosecution’s theory thus far.  The video showed that a fifth unidentified man was the actual killer.  This did not absolve the defendants of responsibility but did serve to lessen their jeopardy.

In sentencing the defendants after they pled guilty to manslaughter, reduced from the charged offence of murder, Judge Rafferty said:

This is not a murder case.  None of you stabbed Aqib…the murderer is still at large.  The tragedy of this case is all four of you know perfectly well who stabbed Aqib, but you have done nothing to speak out to put Aqib’s family at ease.

Had the original iPhone video not been played in court mid-trial, a miscarriage of justice would have occurred.  The wrong person may have been convicted of murder for stabbing the victim and it would never have been discovered that the real killer was still at large.

While lawyers are expected to be conversant with the applicable law and evidence in their case, we cannot expect them to be technically savvy scrutineers of the video evidence they are given to use in court.  Nor should we expect investigators to understand the technical details of video evidence they rely upon.  For these reasons, and to ensure that no miscarriage of justice occurs, video evidence should be examined by a qualified competent forensic video expert.  An expert would readily be able to determine whether the video evidence that is being relied upon is the original video or a compressed version of the original.  Further, the expert is able to interpret and narrate the video evidence for the court, thus ensuring that the maximum value is obtained from the video. Lawyers and investigators who fail to engage a video expert in a case with video evidence do so at their peril and potentially risk permitting the specter of injustice to visit their case.