In the 2018 Ewan McGregor movie Christopher Robin, Winnie the Pooh plays a game he calls “Say what you see,” in which he looks out and says what he sees. None of his friends object or tell him that he is not qualified to give his opinion. Forensic video analysts are often asked to say what they see but the reception of their opinion is sometimes less favorable than Pooh’s. In this article, I will discuss a recent decision from the California Court of Appeal. To put this article into context, I recommend reading my April 2018 article entitled Interpreting Video Images: The Role of the Forensic Video Analyst, which you can access here.
The first step for a forensic video analyst examining images is to interrogate them. This means gathering data on image size, pixels, type of compression, frame rate, resolution, aspect ratio, GOP structure, file format, etc. Very few lawyers would object to an analyst giving expert evidence about image interrogation and even fewer courts would disallow such evidence. The second, much more controversial step, is to do what Pooh does so effortlessly – say what you see – or image interpretation.
My April 2018 article discusses the judicial response to image interpretation in Canada and the United States. The same principles apply in the United Kingdom.
A 2020 California Court of Appeal Decision on Image Interpretation
In State of California v. Dumont et al., 2020 WL 1919357 (California Court of Appeal, Fourth District), all three defendants were charged with first degree murder for the shooting death of a motel room patron. Central to the prosecution’s case was CCTV video which showed the defendants in the hallway outside the motel room where the murder occurred and their movements into and out of the room before and after the murder was committed. All three defendants were found guilty by a jury and Murphy was found to be the shooter.
On appeal, Murphy argued that the trial judge erred in allowing expert testimony about what was observed in the CCTV video, in particular, evidence that Murphy was in possession of an object consistent with a handgun at the relevant time. Murphy testified at trial and denied that he had a gun and denied any involvement in the murder.
At trial, the prosecution sought to call a forensic video analyst to offer expert opinion testimony that the video showed “…that Murphy entered Brown’s room while he carried an object fixed to the area of his left hip and covered by his shirt. The object is consistent in size and bulk with a handgun and was carried by Murphy in a manner consistent with how a concealed handgun is often carried.” The defense argued that this evidence was inadmissible on the basis that such opinion testimony was within the common knowledge and experience of jurors and that this testimony would therefore intrude upon the jury’s factfinding role at trial. The trial judge initially granted the defense motion and disallowed the expert evidence regarding interpretation of the video, but after granting the prosecution’s motion to reconsider its ruling, the Court held a hearing pursuant to Evidence Code Section 402. During this hearing, the expert testified that by reviewing a series of images, the expert was able to determine that the object under Murphy’s shirt moved independently from his shirt and maintained its shape across multiple frames, and therefore was not a compression artifact. Based on this testimony, the trial judge ruled that the expert’s testimony was admissible and could be presented to the jury. As described by the Court of Appeal:
[The expert] repeated this testimony at trial, opining that the security camera video showed that earlier on the morning of Brown’s murder and when Murphy approached Brown’s motel room, Murphy was carrying and concealing an object under his shirt on his left hip. Reviewing video of Murphy walking, [the expert] opined that his manner of walking with his left hand stationary at his side while his right arm was swinging indicated Murphy was supporting the object with his hand in a manner consistent with a person carrying a handgun in their waistband hidden under a shirt. [The expert] concluded that the object on Murphy’s hip was consistent with a handgun.
The Court of Appeal set out the test for the admissibility of expert opinion evidence. First, the subject matter of the testimony must be sufficiently beyond common experience such that it will assist the trier of fact and second, the testimony must be based on personal knowledge or any other matter upon which experts in the field may reasonably rely.
Murphy argued that the expert opinion was inadmissible because jurors could review the video without expert assistance and reach their own opinion as to whether Murphy was carrying a gun. The Court of Appeal ruled as follows:
…[The expert] did not merely describe Murphy’s actions and appearance captured by the security cameras; he interpreted the video by comparing different frames and explaining how the images support an inference that Murphy was carrying an object consistent with a handgun and how Murphy’s gait, combined with the images suggesting an object in the shape of a gun, bolstered that conclusion. An ordinary juror may have experience watching videos, but such a juror’s experience in watching relatively low quality security camera footage to ascertain whether a person is concealing a handgun in his waistband is sufficiently beyond the common experience of the jurors such that [the expert’s] testimony would likely assist a jury. The trial court, which has ample experience considering the ability of jurors, did not exceed the bounds of reason in permitting [the expert] to testify.
What About the California Court of Appeal’s Decision in Nero?
The ruling of the Court of Appeal is consistent with the ruling of the California Court of Appeal, Second District, in State of California v. Nero, 181 Cal.App.4th 504; 104 Cal.Rptr.3d 616, in which the Court of Appeal affirmed the decision of the trial judge to disallow expert image interpretation evidence. Let me explain.
A trial judge has broad discretion as to whether proposed expert opinion testimony will be allowed. The judge is required to follow established law, as set out in the Evidence Code and California case law, but the application of the law to a given set of facts can give rise to more than one permissible conclusion. In both Nero and Dumont, competent, highly qualified forensic video analysts were called to give expert opinion evidence about whether a particular weapon was evident in the video. In Nero, it was a knife whereas in Dumont, it was a gun. In Nero, the defence sought to call the expert evidence whereas in Dumont, it was the prosecution. Assuming that in both cases, the proposed evidence was fairly put before the trial judge and the attorneys arguing its admissibility made all the correct arguments, the only variable left is the judge. Our criminal justice system is a human system and different judges, on essentially the same set of facts, can rule differently and not be wrong in law. When I teach the Nero case as part of my forensic video analysis legal training, I tell the class that the judge next door may have decided the issue differently, but that does not mean that the Nero judge was wrong. In both cases, the Court of Appeal set out the correct law and noted that a trial court’s decision to admit expert testimony is reviewed only for abuse of discretion. It is not the function of the Court of Appeal to substitute their opinion for that of the trial judge.
Setting Yourself Up for Success
How do you set yourself up for a favorable ruling like the one in Dumont and avoid a Nero ruling? This requires both a competent, articulate forensic video analyst and an attorney who fully understands the value that the expert brings to the case. The attorney must be able to articulate, through the expert’s evidence, and legal argument, why the trier of fact needs expert assistance – and why the analyst is the one to provide it. This is a necessity anytime expert evidence is being tendered. Thorough preparation by both the expert and the attorney is essential to obtaining a favorable admissibility ruling from the trial judge.
A Caveat to Consider
I offer one caveat. The expert in this case testified that what was seen in the video was “consistent” with a gun. In forensic image analysis, the word “consistent” is a word that should be avoided. That position is more strongly espoused in the United Kingdom and Canada than it is in the United States, but it is a word that experts should avoid using when testifying about images. The reason for this position is not about semantics. The word “consistent” often engenders a stronger attribution of meaning than is intended by the expert. Though an expert may only mean that two things are similar in appearance, what a jury may hear is that the expert is saying they are the same. It is wiser to point out similarities without superimposing a subjective judgment of consistency. Let the attorneys argue consistency when they address the jury as this is properly part of argument, not evidence.