The November 2021 trial in State of Wisconsin v. Rittenhouse garnered significant media attention across the United States, in part because of its rather sensational facts, and in part because it was televised. Some interesting video technology and visual literacy issues arose during the trial that have allowed for some reflection and commentary on how counsel, the judge, and the state’s expert witness handled these issues. The purpose of this article is to review and comment on those issues and how they arose, and to recommend how they might be more profitably addressed in the future.
Visual Literacy – Pinch to Zoom as a Method of Image Enlargement
The approach of the trial judge and counsel as to how they addressed image technology issues that arose during the trial was interesting to observe and served to illustrate common problems regarding visual literacy in criminal litigation. The first issue I will address is the pinch to zoom issue. In the absence of the jury and without leading any expert evidence on the point, defense counsel alleged from counsel table that utilizing a pinch to zoom approach for enlarging digital imagery is not reliable because it alters the integrity of the images by adding pixels where there were previously no pixels. The prosecution responded from counsel table, also without calling expert evidence on this point, that the defense was incorrect. He said, “…it’s common sense to everyone in this room that that’s not what’s going on here…” The prosecution further stated that if the defense was concerned about the integrity of the enlarged images tendered by the prosecution, the defense should call expert evidence on the point. The trial judge showed humility and honesty by responding, “I know less than anyone in the room here I’m sure about all this stuff.”
It is helpful to reflect upon these comments made by counsel and the judge. The defense made an allegation that they were not able to back up as they were not prepared to call expert evidence on the point. That does not mean that the defense was incorrect in making this allegation. The defense is entitled to muddy the prosecution’s presentation of evidence and this comment was a legitimate way of doing that. It raised an issue that could theoretically have been important. The prosecution’s response showed limited visual literacy by stating that it was common sense to everyone in the courtroom that the defense was wrong. Interpolation of an image during the enlargement process is not common sense and very few people would be expected to understand it. The prosecution did not appear to understand it either given their dismissive response. When the prosecution suggested that the defense should call expert evidence on the point, the judge correctly reminded the prosecution that the video evidence was tendered by the state and therefore the state must address image reliability issues. The judge gave the prosecution mere minutes to call expert evidence and that never occurred. The technical issue raised regarding pinch to zoom was therefore not resolved.
The takeaway on this specific point is that when counsel chooses to use pinch to zoom (or any other manipulation of the images) to focus in on aspects of an image, they are courting technical objections. Image enlargement should be done by an expert witness who can address the technical aspects of the enlargement process and can achieve the desired result in a more forensically sound manner. More broadly, when the prosecution presents video evidence and calls expert evidence to interpret it, the prosecution is obliged to fully address technical and interpretive issues regarding the evidence. The prosecution was not prepared to do that in relation to the pinch to zoom issue. These are issues that should be discussed by counsel and the expert in advance so that they can be addressed on the record when raised. Counsel cannot give evidence, only witnesses can. The judge’s comments on his lack of technical prowess were illustrative of the fact that judges have no obligation to be technically savvy when conducting a trial. A judge’s role is to judge, not to be a forensic expert. It is the role of counsel to educate the judge through the presentation of evidence and submissions. Neither counsel assisted the judge on this issue and judges are not expected to guess.
Interpolation Issue
Using Amped FIVE software, the prosecution’s forensic video expert analyzed and interpreted video evidence including drone footage. His role was to clarify, annotate, enhance, enlarge, and crop images and where necessary to utilize motion tracking, image stabilization, frame averaging, and reduction of playback speed. All these tasks were within his area of expertise. Considerable attention was focused by counsel on an enlarged version of drone video that allegedly showed Rittenhouse firing his assault rifle. The expert confirmed in cross examination that pixels are added to the image during the enlargement process by duplication through interpolation. He was unsure if the process of interpolation changed the color of the pixels and whether other interpolation methods would have produced a different result. He stated that those specific queries touched upon topics that were beyond his expertise. He did note that enlarging an image does not change the details – it just makes them larger.
The defense argued that the interpolated images should not be admitted if there is uncertainty as to whether unknown changes were made during the enlargement process. The judge did not accede to that request but was critical of prosecution for not calling expert evidence about Amped FIVE and its interpolation algorithm. The jury was allowed to see the interpolated images, nonetheless.
This issue should have been handled in a more proactive manner. Given the importance of the drone video in the prosecution’s case and the value in showing an enlarged version to the jury, counsel and the expert should have been better prepared for questions about the process they relied upon to present the video evidence. It should have been expected that the defense would question the reliability of the enlargement process. Interpolation is an advanced topic in video technology and forensic video analysis. A proactive approach to presenting this evidence should have involved the expert gaining additional knowledge about the type of interpolation used and the expert should have a forensically sound reason for why he chose this type of interpolation. The expert should be able to answer general questions about that topic. In this respect, the expert evidence displayed a deficiency that could have been avoided. In fairness, it should be noted that the expert testified that he was asked to do this work two days before he presented it in court. Poor planning by the prosecution can place an expert witness in an unenviable position, as occurred here. Detailed questions about the Amped FIVE algorithms or any other computer algorithms used to enlarge the images are generally outside of the expertise of a forensic video analyst and he was correct to defer questions on those points. If questioning is expected to delve beyond a basic understanding of interpolation or any other technical topics, and such topics are beyond the expertise of the forensic video expert, additional expert resources should be marshalled.
Media Disclosure Deficiency
After the evidence phase of the trial concluded, it was discovered that the prosecution had disclosed an inferior copy of the drone video to the defense. Neither party was aware of this at the time the disclosure was provided. The error occurred when the prosecution emailed the video file to the defense, unaware that doing so would compress the video file. This is reflective of a visual literacy deficiency. Counsel should know how to handle visual media in a forensically sound manner so that their actions do not result in a degradation of the evidence. The defense sought a mistrial on this basis. Fortunately for them, given the jury’s verdict, the judge did not accede to that request.
Commentary and Recommendations
The video technology and expert evidence issues that arose in this trial were not pivotal to the outcome. Addressing them more proactively would not have resulted in a different jury verdict. However, they do provide an opportunity to comment on visual literacy as it relates to image-based evidence.
- The presentation of image-based evidence and forensic video analysis evidence requires that counsel and the expert discuss and prepare for technical issues that may arise so that the evidence is effectively presented.
- If it becomes apparent that technical issues are likely to arise that are beyond the expertise of the forensic video analyst, further expert resources must be obtained.
- Counsel must give the expert sufficient time to do the forensic work requested and time to adequately prepare for trial.
- Counsel should not manipulate and present image-based evidence in the courtroom on their own. This must be done through a properly qualified expert. Counsel who choose not follow this approach do so at their peril and the peril of their case.
- Counsel should not assume that the judge and jury have technical expertise in relation to image-based evidence. The trier of fact is not expected to approach their fact-finding with forensic astuteness. The role of counsel is to educate the trier of fact about the technology involved and the specific evidence being led. The way counsel teaches their case to the trier of fact makes a difference.
- When disclosing image-based evidence, counsel must ensure that a forensically sound version is provided.