Archive for the ‘Expert Witness’ Category

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.

LEVA Level 3 Training

I just got home from taking the LEVA (Law Enforcement and Emergency Services Video Association) Level 3 Course at the University of Indianapolis. It’s been a couple of years since I’ve taken a class through LEVA and this class reminded me of how great their training is!

I have previously mentioned the importance of training, and I try to attend at least one course every year. The Level 3 Course is very appropriate for all forensic video analysts to take, and it properly requires prerequisites of Level 1, 2, and the Video/Photographic Comparison classes. There is some quick review of concepts from those workshops, updates on legal cases involving video evidence (a case I worked on was discussed), then we are given a previously adjudicated case to work. We get two-and-one-half days to analyze the evidence, form an opinion, write a report, and prepare court charts. Then the testing begins. Our cases are presented in a Moot Court, with a Forensic Video Analyst (Scott Kuntz) and a Prosecuting Attorney (Jonathan Hak) questioning our evidence, our techniques, methodology, etc. There is also a written test, a practical test, and a comparison exercise to complete.

The course is complete, testing in most areas that a Forensic Video Analyst should be proficient in. The instruction is excellent. The casework is very representative of what I see in my business. And, the feedback is valuable. Any Forensic Video Analyst who hasn’t yet attended this course should sign up for the next offering as soon as they can. Any Forensic Video Analyst who hasn’t had any LEVA training at all is doing their agency or their clients a disservice.

Forensic Photographic Analysis – Reverse Projection

Oct 25th, 2013 - Filed under: Blog,Expert Witness,Image Analysis,Photography

Some cases are unique – and this will describe one of those. In this case plaintiff retained me to determine if a photograph of a part was broken. The part was a water jet from a bathtub spa. The person using the spa was injured, and the reason proffered was that one of the legs that hold the jet in place was broken. The hotel personnel recovered the broken jet, placed it on a table and took one photograph of it. Later, the jet was lost before any expert could analyze it.

I was retained to determine if the leg of the water jet in the photograph was broken. The jet had three legs and the one that was believed to be broken was the one on the back side when looking at the photograph. Looking at the photograph, that leg appeared to be at a slightly different angle, but defense claimed that the leg was not broken and that the slight difference in angle may have been from the angle of the photograph, the lighting, the focal length of the camera lens, or simply the way that the jet was positioned on the table – or perhaps it wasn’t at a slightly different angle at all.

Measuring the angles of the legs to the front of the jet wasn’t possible because we had only one image and the leg in question was on the back side of the jet. A 3-D model couldn’t be built because there was only one photograph. But, a reverse projection analysis could be done. Reverse projection involves taking a new photograph from the exact same position as the original image, then one can have the data needed to make comparisons, make measurements, compare lighting, etc.

In this case, plaintiff provided me with a new, unbroken, water jet of the same make and model as in the original photograph. I placed it on a table in the exact same position as in the original. I set up lights to exactly replicate the lighting in the original, with all highlights and shadows matching. I set my camera into the same position that was used in the original photograph, and I took the picture. Next, I created an overlay of the two photographs. The result was conclusive – everything on the two water jets matched except for the one leg. The leg had to be broken on the jet in the original photograph, as there was no other explanation for the difference in the two photographs. The difference between the angle of the leg in the original photograph and in the new photograph were measured, and made part of the illustration.

 

Countering Bad Science

When attorneys get a copy of opposing counsel’s expert reports, sometimes they are quite surprised by what they read – it’s just bad science. And, in these cases they will then retain their own expert to counter, and possibly quash, the other experts opinion. I’ve been retained in numerous cases to do this, and I’ll discuss four to illustrate the benefit this has, and to help illustrate the kind of work that I do.

Recently, the Los Angeles District Attorney’s Office retained me because they suspected that the forensic video analysis and photogrammetry performed by the defense wasn’t based on science. I was provided with the security video from the business where the crime occurred, and with the report by the defense expert. In this case, the defense expert lacked training and experience in video analysis, photography, and photogrammetry (she opined on all three of these disciplines in her report). She also didn’t follow best practices in the acquisition of the video, and didn’t apply any standard method to the photogrammetry. I provided a report that the prosecutor presented to the defense attorney, and the defense withdrew their experts report.

In a civil case that I previously posted about, the defense hired a photography expert to photograph the scene of an accident to illustrate the level of illumination. This expert photographed the wrong area, used the wrong equipment, and presented photographs that misrepresented the area. I was hired by plaintiff’s attorney to counter his testimony. I went to the scene and photographed the correct area following best practices and properly illustrated the illumination of the area. In addition, I provided cross examination questions, and the opposing expert basically admitted that he just followed directions of others and didn’t know if he photographed the correct area in the proper manner. This resulted in a multi-million dollar settlement for the plaintiff.

In a military court marshal case, the prosecution brought in an expert in photographic comparison. In this case, the expert didn’t follow standard protocols in their comparison and reached a conclusion that was well beyond what could be reached. The defense team brought me in to challenge this testimony. I provided the attorneys with the information they needed to understand the science of photographic comparison and to illustrate the weaknesses in the opposing expert’s report. I also provided cross examination questions, which were used, word-for-word, and resulted in the prosecutor asking defense counsel why they didn’t make a Daubert challenge. The reason was that they believed the strategy of showing the problems of the comparison was stronger then having it quashed in a Daubert hearing.

One last case was one in which the prosecution in a homicide case created a video to illustrate the illumination of the scene. A large segment of it totally misrepresented the scene, and the defense retained me to counter that evidence. I visited the scene and I wrote a report outlining all of the reasons why the police video misrepresented the scene. The defense presented my report to the judge and she ruled that the segment of video could not be used.

These cases involve three different aspects of my work – video analysis, forensic photography, and photographic comparison – but the common thread is that I was retained in each case because these attorneys needed someone to counter bad science presented by opposing counsel. In each case, the attorneys retaining me weren’t planning to use an expert until opposing counsel did so, and they needed someone to counter the bad science that was being presented.

“I need to tell others about you!”

I met with an investigator on a case last week to discuss her need for Forensic Video Analysis in a homicide case. During out meeting, she asked about the other work I do in photographic analysis and photography services. When I finished, she asked me for a handful of cards so she can let other investigators and attorneys know about my services – she said, “I need to tell others about you!” She had already viewed my website, but some of the things weren’t as clear as they could be, and I realized that I could do a better job in explaining what areas of expertise I work in, and when attorneys could use my services.

This post will just introduce this topic, and I’ll follow-up with more specific examples in the coming weeks. Here are the basics of what I do, in the coming posts I’ll discuss each area with examples from cases to illustrate how this applies to a variety of criminal and civil cases.

To begin with, my expertise is in forensic photography, photographic analysis, and video analysis.

In photography, I provide witness perspective photography, illustrative photography, accurate photographs of evidential items, injury photography, etc. I have photographed scenes to show evidence, to measure distances, to show what someone saw, etc.

In photographic analysis, I provide clarification of images that may be too dark, blurry, from a bad angle, etc. I also provide authentication – to determine if the image is a camera original; and if not, to determine if it represents what it purports to (if it’s been Photoshopped). And, I provide comparisons – is the subject in one photograph the same as a known object (same car, same person, same make and model of valve, etc.). I can also help determine the relationship of subjects in the photographs to each other.

In video analysis, I provide evaluation of the video (what is happening, and are there factors that can be causing someone to misinterpret the events in the video); comparison – is the subject in the video the same as the known object; clarification – stabilizing shaky video, deblurring, adjusting brightness and color, etc.); illustration – following the action in the video, synchronizing multiple video files together, combining video with maps, timestamps, or other events to give a more complete picture of the events.

And, of course, I can evaluate the work of opposing experts to see if they have provided a correct view of the evidence.

My next post will discuss a case I worked for the Los Angeles District Attorney’s Office recently that resulted in the defense withdrawing all of their proffered video evidence.

Expert Credentials

One of the first things that I get asked for when an attorney calls is a copy of my CV. An expert’s CV can tell you a lot, but when looking at a forensic photographer, photographic analyst, or video analyst, how should it be evaluated to make sure that you are getting a qualified expert? What should you be looking for on our CVs?

This week I’ll address work experience. In the coming weeks I’ll also discuss training, certifications, testimony experience, and some peripheral issues.

One thing to note is that there is a huge difference between the worlds of photography and video in the commercial world versus the forensics world. When searching for an expert, I would want someone with experience specifically in forensic or legal aspects of photography, or video analysis. Look at their work history and how many cases that they work in forensics. Ask how long they have worked in photography, photographic analysis, or video analysis; and what percentage of their work is forensic based. For me, I’ve been working in photography for over 30 years, and in forensics for over 20 years. I have fifteen years experience at a police department in the field of forensic photography, image analysis and video analysis.

Interestingly, the world of civil law and criminal law have their differences as well. I remember my first deposition in a civil case some eight years ago. It was unlike anything I had seen in the criminal cases I had worked. Your expert should understand their role in your case as well as the procedures regarding reports, depositions, court, etc.

The bottom line regarding experience – make sure your expert is experienced in their discipline, and also in the forensic application of that discipline. The workflow of the commercial photographer or post production video editor may be excellent in their own field, but may fall apart in a forensic environment.

Next week we’ll discuss what training to look for in your forensic video analyst, forensic photo analyst, or legal photographer.

In Photography and Video – We Want the Original Images

It always surprises me how often retaining attorneys send me digital copies of scanned color laser prints of photos in PDF format, or transcoded video files to do an analysis. Sometimes these images resemble their originals – sometimes they are a far cry from them.

To do the best enhancement, analysis, or authentication possible, originals are needed. Exact, logical copies of digital evidence is fine if the originals are digital.

With photographs, the original is the digital file as it came from the camera, or the negative from a film camera. If it’s a PDF, it is not the original.

With security digital video recorders, the original is an exact copy of the original data recorded by the DVR. If the file plays on a standard DVD player – it probably isn’t the original.

Determining if the still photos or video files are originals does involve more than simply determining whether the video plays on a standard DVD player, or if the still image file is in a JPEG file format – but those are good starts.

Whether you are using an expert or not – start demanding exact copies of the original visual evidence in your cases – it will make a significant difference in what that evidence can tell you.

Testimony Reviews

Apr 28th, 2010 - Filed under: Blog,Expert Witness,Testimony

When I am scheduled to testify in court, I sometimes notify colleagues in the area and invite them to watch me with the hope that they can provide me with feedback. I’ve done this for a number of years, and have gotten feedback from a few colleagues including Jack Nadelle from the Los Angeles District Attorney’s Office and Steve Everest from the King County Sheriff’s Office. In my testimony on a recent homicide case, Steve wrote a page of notes that included things like the percentage of time I made eye contact with the jury during my testimony, how comfortable I appeared, the way I addressed technical issues, my demeanor during direct and cross examination, etc. The feedback I’ve gotten from colleagues like Jack and Steve have helped me to do my best when presenting evidence and my opinions in court. I recommend that anyone who testifies in court have others watch them and provide feedback. A key part of any experts work is to explain evidence and opinions formed about that evidence in court – getting feedback about our testimony helps us do this better.

There is also a benefit to watching someone else provide testimony. I’ve participated in a couple of cases where I was able to watch the opposing expert witness testify. But, recently, Grant Fredericks was giving testimony in my area and he invited me to watch his testimony. I was able to see how he explains what observations he made when analyzing video evidence, how he presents that evidence, and how he answers the questions put forth to him, etc. Grant does an excellent job at explaining his opinions and the video evidence – I was able to take away some ideas to use in future cases. All expert witnesses should take the opportunity to watch other experts testify.

If you are an expert presenting evidence and opinions in court, watching others testify and getting feedback from others on your testimony are very valuable.