Once the forensic video analysis work has been completed and the report has been written, the analyst may be called to court to testify to the work undertaken. The question then arises as to whether this evidence should be led as expert evidence or lay testimony. Who decides this question and why does it matter? Using a recent US case as background, this article discusses the importance of making the correct decision and the potential consequences for choosing poorly.
Lay Testimony v. Expert Evidence
Generally, the difference between lay testimony and expert evidence is that witnesses testifying in a lay capacity are permitted to testify about what they did but cannot express opinions about the results of their work or other findings. Conversely, expert witnesses are permitted to testify to all the work they have undertaken and the opinions that they have formed based on their work and their area of expertise generally. Expert witnesses are given more latitude on the witness stand as a result.
Since the witness knows what evidence they have to offer and counsel knows what evidence they intend to lead from the witness, it should not be difficult to determine whether to tender the witness as a lay witness or as an expert. Will the witness only be testifying to process or will they be opining? Though this question is not difficult to answer, there are many examples of forensic video analysis expert evidence being incorrectly led as lay testimony. Typically, this occurs either because counsel did not take the time to categorize the evidence they intended to lead or because they thought it would be easier to proceed down the lay witness route, often because they did not follow the requirements necessary to lead expert evidence. Neither reason justifies miscategorising the evidence they intend to lead. A recent US case illustrates this problem.
Case Example
In State of Ohio v. Harris, 2024 WL 1798117 (Court of Appeals), the issue that arose on appeal was whether the evidence of a “forensic video specialist” (the “witness”) was incorrectly admitted as lay testimony at trial. In this triple murder case, part of the evidence led by the prosecution was CCTV video. The prosecution called a forensic video specialist to testify about his analysis of the video evidence. The witness testified that he enlarged and enhanced the videos, created a video timeline, and created a “comparison video”. The witness narrated the video evidence to the jury and as part of his narrative, he described in detail what each person was wearing, the actions of the people, and the visible occurrence of a muzzle flash. He also undertook a comparison of the clothing worn by the people seen in the two locations captured on the CCTV images and used annotations for that purpose. In cross examination, while he agreed that he is not an expert on denim patterns, he said, “I am an expert on what is captured on a DVR visually, what’s captured on a camera.” This evidence was admitted over the objection of defence counsel who argued that it should have been led as expert evidence and that since the prosecution had not followed the procedures necessary to lead expert evidence, it should not have been admitted at all.
The background to this issue was that immediately before trial, the prosecution disclosed the witness’s report that contained various still images and a description of the work that was undertaken but stated that they did not seek to have him qualified as an expert witness. The defence objected on the basis that this report was an expert report and that it was required to be disclosed at least 21 days prior to trial. When addressing this objection, the prosecution sought to downplay the evidence and said it was being led for demonstrative purposes and that no opinions would be offered. Instead, the prosecution intended to question the witness “…on observations that he made on the video.” Oddly, but perhaps reflective of the prosecution’s error, they also disclosed the witness’s expert CV, which would not be necessary for a lay witness.
The trial judge overruled the defence objection based on the court’s view that the evidence of the witness consisted of enhanced images led for demonstrative purposes but also stated that the witness was not permitted to express any opinions. During his direct evidence, the witness stated that he is a certified forensic video examiner, a LEVA certified forensic video technician and is also certified by the IAI. He also talked about his work at his police agency and the many times that he has been qualified as an expert witness in court. A lay witness would not typically be asked these questions. Despite the admonition that the witness was not allowed to express opinions, he was asked to discuss the observations he made about the clothing worn by people and was also asked to opine on video format differences “…based on your training and experience.” The trial judge overruled an objection on this evidence.
The appellant was convicted at trial based on this evidence and a substantial amount of other evidence. One of the grounds of appeal was that the trial judge erred in admitting the evidence of the witness as lay testimony, rather than expert evidence. Counsel argued that the evidence should have been disallowed because the expert report was disclosed less than 21 days before trial and that the purpose of the notice requirement is so that the defence can properly prepare. Because the trial judge had some discretion on this notice requirement, the appellate court did not find this late discovery to be contrary to the discovery rules. However, the appellate court found that portions of the witness’s testimony was expert testimony and that his evidence was improperly admitted at trial. While that may suggest that the Court would overturn the conviction and order a new trial, there is a further consideration – whether the admission of the evidence amounted to a harmless error. After undertaking a harmless error analysis, the Court found that while the appellant was correct in his argument that the evidence should not have been admitted as lay testimony, it did not impact the soundness of the conviction because of the other evidence presented at trial that established the appellant’s guilt. Therefore, while the appellant ultimately won this battle, he did not win the war.
Commentary
This case and others like it illustrate the importance of the forensic video witness and the lawyer leading the evidence at trial having a thorough understanding of the evidence to be led and whether opinions will be requested of the witness on the witness stand. This is a not a difficult task. The witness knows the evidence. The difficulty that arose in Harris typically occurs for one or more of the following reasons. First, the lawyer did not request or receive the evidence in time to meet expert witness notice requirements and therefore decided to lead the evidence as lay testimony, presumably in the hope that no one would notice that it is expert evidence. Second, the lawyer leading the evidence received the evidence in sufficient time but did not assess the true nature of the evidence and the fact that opinion evidence was involved until too late. Third, the lawyer leading the evidence did not want to go through the effort of leading the evidence as expert evidence and chose to lead it as lay testimony but used the phrase “demonstrative evidence” to cover over the erroneous categorization. Fourth, the witness did not fully describe the extent of the evidence to be offered in the expert report, thus causing the lawyer to believe that no opinion evidence was involved. All these impediments to properly categorizing the evidence are self-inflicted injuries. With adequate preparation and discussion by the lawyer and the witness, this problem can be avoided.
Leading expert evidence requires more effort by counsel. An expert report and CV must be obtained, reviewed, and disclosed. Opposing counsel must be notified of the intention to lead expert evidence within prescribed time limits. A plan must be created for the evidence to be presented. A qualification voir dire will often be required at trial. These are not difficult steps. They require forethought and organization. Properly categorizing expert evidence is important because it will allow counsel and the witness much more latitude at trial. More valuable evidence can be presented if the witness is not restricted to only discussing process. Ultimately, it is the trier of fact who will benefit from the evidence and it will help them in their search for the truth. Having evidence disallowed based on incorrect categorization is entirely preventable.
What is the takeaway for the forensic video witness? Be proactive. Though the preliminary decision as to categorization is that of counsel (and ultimately the court), the witness must meet with counsel and clearly delineate what part of their evidence is merely process related (lay testimony) and what part consists of opinions by the witness (expert evidence). Though the witness is not an advocate, the witness should advocate for the evidence to be presented.