Expert Witness or Lay Witness: Who Decides and Why?
When I teach my Courtroom Testimony for Expert Witnesses course, a topic that frequently arises is how the decision is made as to whether to present an expert as an expert witness or a lay witness at trial. The decision may have significant ramifications and the purpose of this article is to explore that topic...
Frame by Frame Analysis and the Use of Spotlighting Accepted in Murder Prosecution
In R. v. Ahmed, 2021 ONSC 2141 (Ontario Superior Court of Justice), the defendant was charged with murder arising out of a shooting in an Ottawa nightclub. He admitted shooting the deceased but claimed that he acted in self defence and lacked the necessary intent for murder. Presentation and expert analysis of the video obtained...
Court Restricts Forensic Video Analyst in Image Comparison Opinion Evidence
In Canada and the United States, courts rarely limit the ability of a qualified forensic video analyst to provide image comparison opinions. Conversely, in the United Kingdom, the Forensic Science Regulator has placed significant restrictions on the use of evaluative opinions. For more on the UK situation, refer to the article on this...
Appellate Courts Weigh in on Authentication of Digital Media in Canada
Authentication of digital media by the tendering party is a precondition for admissibility at trial. The focus of this article is on assessing what level of proof is required in order to meet this requirement and the practical implications of this standard of proof. This article addresses the law and practice in Canada....
Defence Challenges Motion Tracking by Forensic Video Analyst: Too Helpful Perhaps?
The quintessential role of the expert witness in the courtroom is assistive by design. Expert witnesses are only permitted to testify if they possess scientific, technical, or other specialized knowledge that exceeds that of the lay person and only if their knowledge will assist the trier of fact to understand the evidence or...
Identification of Defendant in Video by Detective Causes Retrial
Who is permitted to express an opinion on identification of people shown in surveillance video? That was one of two issues before the Appellate Division of the Superior Court of New Jersey in State v. Sweet, 2019 WL 5250809. Issue 1 – Video Identification In Sweet, two detectives testified before the jury that the defendant...
Should Video Recordings of Monitors be Ruled Authentic?
In order to make sound, informed decisions about the content of videos tendered as evidence, it is preferable to have the original recording, or a copy that has been verified to be accurate, available for viewing and examination. Ordinarily, this is achieved by exporting the video files from the camera, DVR, server, computer...
Appellate Ruling on Authentication: Speculation of Impropriety Not Enough
Should video evidence be ruled inadmissible because an expert raises potential concerns regarding its authenticity? Mere speculation is insufficient to dislodge a prima facie showing of threshold authenticity according to the Court of Appeals of Oregon in State v. Sassarini, 300 Or.App 106 (Or.App., 2019), 452 P.3d 457. The Facts A dispute between neighboring property owners...
New “Forensic Talks” episode featuring Jonathan W. Hak, Q.C.
The New Year started with a wide-ranging interview by Eugene Liscio on several topics relating to expert witness testimony, the use of forensic science in the courtroom, digital media, and more. For an informative 45 minute chat, please have a peek!
Court Excludes Expert Testimony Not Covered in Expert Report
An expert who has been retained to analyze evidence and draft a report for use in litigation is generally not permitted to give testimony and express opinions beyond the contents of the report. There are sound legal and practical reasons for this limitation. This article examines a recent case illustrating this point and...