The recent (November 2021) high profile American murder prosecution (State of Wisconsin v. Rittenhouse) has garnered considerable media attention, primarily because of the polarizing views on the propriety of Rittenhouse shooting people and then claiming self-defence as the justification for doing so. The purpose of this article is not to weigh in on that debate nor to evaluate the way video evidence was analyzed and presented. Technical experts are better equipped to address the latter and my opinion on the former is immaterial. However, this case does provide a suitable backdrop for emphasizing the importance of maximizing the value of video evidence in the pursuit of the truth. This in turn sparks discussion of the trifecta necessary for this to occur: competent analysts, selection and use of forensic tools fit for purpose, and knowledgeable counsel leading and challenging technical evidence. These topics are the focus of this article.
Video evidence is not always the proof panacea some would make it out to be. On occasion it will be of superior quality and provide a truly objective and impartial depiction of relevant events. More often it will be of varying quality, hampered by one or more of several factors that impact image value, including temporal and spatial compression, motion-related challenges, poor resolution, reduced frame rate, etc. Added to these technical limitations are the agendas of the photographer which intentionally and subconsciously frame what is recorded and what is excluded. Video evidence can be a useful adjunct in the search for the truth and even when of low to moderate quality, it may provide sufficient data for a trained analyst to interrogate and interpret. Competent analysts are therefore the first step in the equation.
Competent Analysts
Whether employed by a police agency, a forensic lab, or as part of a private entity, it is essential that the people who process and analyze video evidence, and later report upon and testify to their work, be suitably qualified and competent. Assessing qualifications and competence relies upon more than a review of the contents of an analyst’s curriculum vitae. A CV tells only part of the story. Claiming to be qualified on paper does not always equate with actual competence. Similarly, achieving a hard-earned certification like LEVA CFVT or CFVA is an indicator of competence but not a guarantor of it. It is through continual learning via formal classroom training; independent research, testing, and experimentation; webinars; collaboration; expansion of technical horizons; expert witness training; peer review; and baptism by fire that true expertise is developed. This applies in all professions. For example, getting a law degree and passing the bar exam are not predictors of whether someone will be an effective attorney in the courtroom. I have worked with hundreds of prosecutors and defence counsel over the course of my career and gradations in competence are readily apparent.
When video evidence forms part of an investigation and prosecution, it must be fully interrogated and interpreted by people suitably equipped for these important tasks. The court is entitled to learn all that can be learned from the evidence through the work and testimony of a competent analyst. The work performed and testimony given should be of the highest calibre. It should serve to educate the court as to how to properly assess and utilize the evidence and the witness must be able to stand up and even thrive under the pressure of cross examination. These are not innate traits. All of this can be learned, studied, and practiced. This is essential for the pursuit of the truth and delivery of justice, in whatever form that may take. For an earlier article on forensic experts and the truth on my website, see Truth on Trial: Forensic Experts and the Pursuit of Justice.
Forensic Tool Selection
To maximize the inherent value of video evidence, the analyst must utilize tools that are fit and suitable for the task. Just as a vehicle mechanic has a toolbox filled with tools designed for various tasks, so too must a forensic video expert have a variety of forensic, consumer grade, and freeware tools available for deployment. The tools that are selected for use must be fit for the intended purpose and the expert must have full control over them and a proper understanding of their use and the results achieved. It is the expert who is doing the forensic work, not the hardware and software tools. The expert must be able to articulate why certain tools were used and why the results achieved are reliable. Frequently, more than one tool should be used to corroborate findings. In short, the expert requires a toolbox that allows for the multifaceted interrogation of images and validation of results achieved. It is not my role to make software recommendations but I do encourage experts to make inquiries of other experts in the field and learn what tools are recommended and have a proven track record.
Knowledgeable and Competent Counsel
Most lawyers are not technical experts, nor do they need to be. If they were, they likely would not have become lawyers. Restricting my comments to cases involving video evidence, it is essential that lawyers consult with and retain competent video experts to evaluate the evidence and determine what forensic processes, if any, should be undertaken. The failure to consult and seek advice often leads to self-inflicted injuries at trial. In my PhD work, I cite two examples (one American, one from the ICC) where the prosecution submitted to the court that images posted to Facebook self-authenticated themselves by virtue of being on Facebook. Based on the palpable absurdity of these submissions, it is apparent that the prosecution did not consult with a competent expert. Had they done so, they would have learned the true facts and avoided looking foolish. They would also have been in a better position to address the topic of image authentication.
Lawyers must strive for greater visual literacy and should seek training in this regard. Lawyers don’t need to become technical experts as that would be duplicitous, but they must be sufficiently well-versed in the field of expertise to know that they need an expert, be able to evaluate the expert’s competence, to understand the work the expert has done in the case, and to confidently lead and defend the expert evidence in court. Similarly, counsel must be able to respond to the evidence of opposing experts. The pursuit of the truth is disadvantaged when video evidence is not properly evaluated by competent experts and then presented for trial purposes by knowledgeable counsel.
Because video evidence was a feature in the Rittenhouse case, some of these issues were exposed for examination and found wanting. The aim of this article is to help set experts and counsel up for success in the courtroom.