Frye Hearing

Nov 10th, 2014 - Filed under: Blog,Expert Witness,Testimony,Video Analysis

Last month I testified in a Frye Hearing in Los Angeles. The Office of the District Attorney retained me to challenge a defense expert in a case that involved both Forensic Video Analysis and Photographic/Video Comparison.

That ‘expert’ has testified 25 times in the past, but has had no training in Forensic Video Analysis or in any Comparative Science. His work experience was only peripherally related to video analysis. He does not have any certifications in video analysis, photographic analysis, or anything related to these fields.

His methods in video analysis and in comparisons are not considered best practices by any peers, any forensic organization, or in any publications. Additionally, his comparison method is a method that the Facial Identification Scientific Working Group (FISWG) specifically states is not appropriate for comparisons. Further, he identified artifacts as being features, which the Scientific Working Group for Imaging Technology (SWGIT) points out is something that should not be done.

Because this other ‘expert’ read my report prior to the hearing, he was able to rehabilitate himself somewhat. His testimony indicated that he did things differently than his report indicated. He had trouble answering any direct questions – even those asked by the defense attorney. He frequently rambled in his answers with the attorney having to ask the question again or otherwise bring him back on track. He claimed that he used methods that no one else uses and that he therefore has no peers in this field.

I took the stand in this hearing and listed the training that is available, the certifications that are available, the organizations that publish guidelines and best practices documents. I showed that the other ‘expert’ had no foundation for any of his work. For example, he stated that his measurements had a specific margin of error, but never explained how he derived that margin of error. The image had significant motion blur (from both camera and subject movement), was a night shot from a cell phone camera, was of low resolution (the head size was 30 X 30 pixels), the cell phone used a rolling shutter, it was a night image, etc. In addition, this ‘expert’ then rotated this poor quality image, causing further degradation. With the CCTV footage, he used a PDF file that he was provided with, and there is no indication that he ever asked for the original file. He did not recognize the aliasing artifacts in that image that were caused by the low resolution and also because the video was interlaced.

The result? The judge came half-way, and stated that he could not testify regarding the comparison, but that he could testify about the video quality. Since that wouldn’t benefit the defense (who he was working for), he didn’t testify at all.

But, what is the future for that expert? He is listed on the Los Angeles Superior Court Panel of Approved Experts. This means that when a defendant in LA County wants an expert, they can choose one from the list and ask the court for funding. This expert stated that he has worked over 150 cases and testified 25 times. The next public defender who chooses him may not know of his history – this wasn’t his first Frye challenge. He’s been admonished by a judge for talking to jurors in the hallway in one case, and also for giving a sentencing opinion while on the stand! He invents theories and rambles on and on to try to support them. And, he is still on that Panel of Experts.

What is the criteria to be on the Panel of Experts? One has to complete a form. It is one page. And, one has to attach a CV. I don’t know how one is approved. There are no references asked for, so it’s likely that none are checked. There is a space for Licensing information – but many expert fields don’t require licensing – although there may be certifications (but there are no questions about certifications, or other qualifications). Once one is on this list, I don’t think there is ever a review. I’ve never heard of someone being dropped from the list.

So, the next time a public defender in Los Angeles needs an expert, he or she will take a look at the approved list and see this expert’s name. That public defender may not have the time to search out the background of that expert, but instead may just assume that because he is on the list, he must be competent. It is a frightening situation. I hope that the LA Superior Courts will review the criteria used for placing (and retaining) individuals onto their experts panel.

In closing this post, I’ll point to a post on this topic by Jim Hoerricks. It’s a great read, with a bit more detail about the members of this panel in the category of video, audio, and image analysis.

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