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Posts Tagged ‘Litigation’

Video is Everywhere: Mind Your Manners in Public

Friday, February 24th, 2012

5610631522_53319bb4fe_o-1024x681 Video is Everywhere: Mind Your Manners in PublicI recently had a video forensic case that involved a dispute between an employer and a former employee. It was a disability case where the employee was collecting disability that they were not entitled to.

The employer’s insurance company hired a private investigator to follow the former employee and catch them on video doing activity that they claimed they could not do. During a deposition the former employee demonstrated how they had a very hard time getting up from a chair and walking across the room.

A few days before the deposition and a few days after the deposition the former employee was caught on video moving in ways they testified they could not during their deposition.

You would think that if a person is going to lie about how they are disabled they would be more careful in public to not act differently, especially with the risk of being caught on video.

We live in an extremely litigious society and many people are looking for an easy way out. An accident occurs at work and they leverage the accident to benefit their financial future. We have all seen the TV shows that catch these people spilling water on the floor then pretending to slip and fall in order to be able to file a law suit designed to compensate them so they have some financial security.

Then there are criminals, many of whom are addicted to drugs, who rob gas stations and convenience stores without considering that there may be video cameras and recorders on the property that can later identify them.

Regardless of your thought process when committing a crime or having fun in public, remember that you are more than likely almost always being recorded on camera. It’s worse to be caught in a lie on video than to be honest and live your life as intended. Money is the root of all evil and a powerful motivator.

I have seen it all after 28 years as a video forensic expert. Children being assaulted and abused, robberies and even murder all caught on video. I have testified in all types of cases that involve video evidence and the purpose of these videos is genuine. Video does not lie and eventually the truth does come out in litigation.

photo credit: big brother via photopin (license)

Appeal Cases on the Rise

Thursday, October 13th, 2011

952313_79933908-1024x685 Appeal Cases on the Rise

I have noticed lately that many Americans are being convicted of crimes that they are innocent of in the United States of America, instead of what is written in our constitution: when accused of a crime, we are guilty until proven innocent.

As a result, innocent people are imprisoned and appeal cases are at an all time high. As an audio and video forensic expert, I have experienced a growing percentage of case loads because of the appeal process; persons who have been convicted of a crime that they are innocent of. In these appeal cases, the audio and video forensic process is even
more important as the case continues in Appellant Courts.

The forensic process is similar in the appeal court, however; obtaining an original for forensic examination is hard, if not impossible. If the original is no longer available, the challenge is getting both the Court and the convicted to agree on the definition of what is available to serve as an original recording.

Once an original or working copy has been identified by both parties, it is the job of the forensic expert to help build the appeal case almost always using similar audio or video evidence that was used to convict. I often find that during the original trial, the audio and/or video evidence was not properly examined.

Some of the appeal cases I have worked on took place long after the original trial and included analogue audio or video evidence instead of digital. In fact, one case I am currently working on includes a VHS tape. It is interesting to me how a tangible VHS tape is sometimes available in some police investigations and other times not accessible. I find that few government agencies hold onto evidence long after a trial.

In the case where the original has been destroyed, the forensic expert has to rely on a copy to reveal any information to be used in the appeal case. Now the hurdle is to use forensic standards that are acceptable in the scientific community and apply those standards to a copy of the original evidence. This is where a great forensic expert can use all the tools available, both software and hardware, to help build the case.

Without the right software, hardware and experience, the forensic expert cannot properly determine the truths about audio and video evidence for the court.

Experienced forensic experts who have great credentials and understand appeal processes are worth the cost to retain. Expert witnesses help the court understand and interpret the evidence and any evidence anomalies so that the court can make an accurate decision on the case, civil, criminal or appeal.

This is often how the accused was convicted in the first place; lack of understanding by the court of the audio and/or video evidence. A complete understanding of the audio and/or video evidence causes even more restrain in the appeal process than the original trial.

For more information on how you can get a second opinion for the audio and video evidence in your case or the forensic process, call the provider of this article. Every case is unique and may benefit from forensic examination. The results are not always favorable but learning and understanding your evidence will help your lawyer know how to best lead you into the appeal process.

Video Forensics: Junk Science…or the Real Deal?

Friday, February 18th, 2011

2529145057_356a1a3bed_o-1024x599 Video Forensics: Junk Science…or the Real Deal?It seemed like a routine traffic stop…or was it? The police said they had probable cause, but did they? The video footage, retrieved from the very sophisticated, digital-video surveillance system mounted in the police car, shows tinted windows on the victim’s car; so how could the police see they had no seat belts on? Bringing in a video forensic expert helped bring truth to the courtroom and prove scientifically that probable cause was not met, and the case was dismissed.

A bank robber thought the baseball cap would hide his face from the surveillance cameras, but the installation company for the closed-circuit television system (CCTV) had experience working with a video forensic expert who helped them figure out how to best position the cameras so all activity in the bank could be caught on video. The thief got away with $780 dollars, but was quickly apprehended and identified through the aid of an expert; he’s now serving seven years for the heist.

In a fatal shooting that was caught on surveillance video, the accuser’s face was identified for a brief second. With a few simple forensic video applications, like clarification and enlargement, as well as importing a frame from PhotoShop, the shooter was identified and brought to justice.

No longer a unique aid to deterring crime or capturing the criminal actions of the unsavory (as well as recording the mundane, casual incidents of everyday life), CCTV is now so pervasive, it can be found in locations from convenience stores to sports arenas, mall parking lots to traffic corners…even in doggy boarding camps where you can check on your family pet from your Blackberry or your computer.

While the protests are rampant that CCTV is a violation of our Constitutional right to privacy – especially given the many ways in which CCTV is now being used – there is no doubt that its value is embraced by litigators, police departments, security stations, airports and so on. With human resources stretched thin, video surveillance has become a critical tool in the war on crime, putting millions of extra “eyes” on the job, 24 hours a day, seven days a week.

But what happens once the perpetrator or action in question has been caught on video? What’s next? What transpires can often be a quagmire of “he saw, she saw,” with differences of opinion varying widely, with convincing arguments presented by both defense and prosecuting attorneys, and sometimes, a manipulation of the facts spinning in favor of one party versus another. This is where a video forensics expert can prove or disprove the layman’s observations, providing authoritative information or testimony based on a keen eye and knowledge of the technology.

Yet, many argue that forensic video technology is a “junk science,” a term used in this instance to label the practice as having no merit or credibility, that which cannot be authenticated, analyzed, or supported by scientific data. Science, by it’s very meaning, refers to that which can be proven systematically, and “junk”…well, that word is self-explanatory! The main reasons forensic video technology is often branded a “junk science” are three-fold: First, there are no governing boards or licensing groups overseeing the video forensics profession, like you find in the legal or medical fields, for example. Because of this, theoretically, anyone could be touted as an expert, affecting the credibility and opinions of those with reputations previously held in high regard. Second, because video forensics is a complicated process and there are no standards on which to base testimony or proof – with no cohesiveness within the science itself – there can be wide gaps in opinions and observations. Third, because the technology and interpretation of video forensics (and audio) science can be difficult to understand by nonprofessionals, it’s often discounted as not having any value, especially by the side not presenting the video evidence in court.

Such is often the case in the courtroom where a Daubert motion can occur (in those states that have adopted its use). The word “Daubert” comes from an actual proceeding, taken from the U.S. Supreme Court’s Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) decision whereby the judges were directed to examine the scientific method beneath expert evidence, ruling what was scientifically relevant, reliable and admissible. In short, because of the Daubert case, The Supreme Court mandated that federal judges shall act as “gatekeepers” by deciding whether expert evidence be allowed before the jury.

If a Daubert motion is exercised, based on the Supreme Court’s opinion, the following is considered admissible scientific evidence: 1) evidence based on a theory or technique that can be tested; 2) the theory or technique has been reviewed by the expert’s peers; 3) the technique has a known error rate; and 4) there is general acceptance of the underlying science in the scientific community.

Where this can adversely affect the admissible testimony of a video forensics expert is that judges are expected to examine and understand the methods of the expert and determine whether or not they are qualified to testify. Since there are no clear guidelines on which to base such credible witnesses, in many cases judges are left to render an opinion without adequate knowledge of the science.

Because of this, a Daubert motion can be used by either side of the litigation table to exclude evidence made by an expert which might support other proof, or further incriminate. Such was the case where the author of this article was called in to testify in a federal court drug trial on behalf of the defense. I was prepared to provide an expert, detailed opinion involving “voice recognition” evidence. But the prosecuting attorney convinced the judge to do a Daubert hearing, in an attempt to prove I wasn’t credible.

In this scenario, I was required to answer questions proving I was qualified to give the court an expert opinion on audio evidence. This included verifying I was a certified digital video expert; that I’d completed several successful court cases; that I’d published articles to support my expertise; and so forth. Yet, the court deemed me unqualified to testify, thus proving there are always two sides to every court case; that rulings can be based less on experience and fact, and sometime more by a lack of understanding the scientific nature of video/audio forensics by the court.

In 2007 Kelly Gorham, a vibrant nursing student from a small town in Maine, missing for nearly a month, was found murdered, the result of strangulation, and buried in a shallow grave on property owned by the father of her ex-fiancé, Jason Twardus. Having been jilted by Gorham two months prior to her disappearance, Twardus is accused of killing Gorham in Maine and burying her in his native state of New Hampshire. Twardus’ alibi was inconsistent with some of the evidence found.

Flash-forward to late 2009 when the murder case goes to trial…and crucial evidence based on video footage hangs in the balance. Friends and family of Gorham believe Twardus is the man seen on surveillance footage from a convenience store in Colebrook, N.H. the day after Gorham was last seen alive. The store is only a few miles from where Gorham’s body was found. The footage shows a car that appears to be the same color and make as Twardus’ vehicle, and the image of a man Gorham’s family swears is her ex-fiancé (even though his face is not discernable) based on his posture, baggy clothing, profile and characteristic walk.
The prosecution brought in video forensic analyst Grant Fredericks to verify the family’s contention. After questioning Fredericks extensively on his background and qualifications, the defense attorney called video forensics, as a whole, “voodoo science” and a “pseudoscience.” Fredericks contested the defense’s viewpoint during testimony, citing his ability to analyze beyond that of a layperson’s eye.

In addition to other aspects cited, the affidavit Fredericks submitted to the court states there is a “strong likelihood” the car seen in the security footage is Twardus’ green Subaru Impreza, and that the sweatshirt the man was wearing is “consistent with in every respect” to a sweat shirt seized by police from Twardus’ home. “That man cannot be eliminated, in my opinion, as the man in the video,” Fredericks said. However, as of this writing, the defense filed a motion to suppress the testimony of Fredericks, which the judge is expected to rule on sometime in early 2010.

The courts that accept video evidence – supported by a video forensic expert – are usually those that involve an experienced trial attorney, with admissibility boiling down to the strength of the presenting attorney’s argument. When accepted, video evidence can help a judge or jury understand a crime scene or situation more clearly. Admissibility is stronger if a video forensic expert is involved.

In another milestone U.S. Supreme Court ruling, setting precedence for how video evidence may be decided on in a court case, consider the outcome of Scott v. Harris (2007), where appellate courts were given more freedom to decide issues on summary judgment. In a summary judgment practice a court generally considers the evidence to be more conducive to the nonmovant (a “nonmovant” refers to the party not filing a motion).

The eventual case of Scott v. Harris was preceded by a high-speed chase whereby a Georgia county deputy, on the tail of the speeding vehicle, was given permission from his supervisor to employ a PIT maneuver (allowing the patrol car to pull alongside the vehicle and force it to spin out or exit the road in an effort to bring it to a standstill). Instead, deciding not to exercise the PIT maneuver, Deputy Scott pushed the rear bumper of the fleeing vehicle, resulting in the driver (Harris) losing control of the car, jumping an embankment, overturning and crashing – whereby Harris became a quadriplegic.

Harris filed suit asserting that Scott violated his Fourth Amendment rights during the pursuit by using excessive force. After rulings in the lower courts denied Scott’s summary judgment motion on a qualified immunity claim, the matter went before the Supreme Court where, in an 8-1 ruling, they reversed and held that Scott’s effort to end the chase by forcing Harris off the road was justifiable and reasonable, and that Scott was entitled to immunity.

With a quadriplegic plaintiff looking for relief from the judicial system, how is that the Supreme Court found in Defendant Scott’s favor? In a rare and uncommon move for the Supreme Court, they accepted the presentation of video evidence of the chase, the main contributing factor that influenced the court’s decision. Writing for the Court, Justice Scalia concluded, “It is clear from the videotape (Harris) posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase,” thus contradicting Harris’ version of the facts.

In future cases where video evidence is introduced, litigants will be able to cite Scott v. Harris that a court, not a jury, is competent to decide issues usually left to the jury to determine, particularly where video evidence contradicts the nonmovant’s account of the facts.

While security footage can be used to support or refute criminal behaviors, or aid in civil cases, it has also proven valuable in uncovering police corruption and/or ineptness, and in fact, may be the best way to circumvent police lies and collusion.

In 2004, during the Republican National Convention in New York City, a massive number of protesters participated in a broad range of activities, resulting in over 1800 arrests, a record number for any political convention in the U.S. Most of those arrested were carrying out lawful and peaceful actions, yet the NYPD claimed disorderly conduct and fabricated a number of the charges. Video evidence, contradicting the assertions of the police, and much of it provided by private parties, proved the innocence of hundreds of people, with over 400 of the cases dropped.

In another incident last summer, near the Philadelphia airport, four friends made a 3:00 a.m. stop in a convenience store shortly after being involved in a minor fender-bender with their Mazda. The driver of the other vehicle, the son of a police officer, rear-ended the Mazda with his Buick, then left the scene after a purported exchange between the parties.

The Buick’s driver located his father, on duty that night, and the two set out to locate the Mazda, spotted in the store’s parking lot.
Moments after entering the store, 20-year-old Agnes Lawless was standing at the counter when Officer Lopez, father to the other driver, grabbed Lawless from behind and violently pushed her, striking her with his left hand and shoving and striking his gun in her face with his right hand. In a frantic struggle to defend herself, Lawless was arrested and charged with assaulting the officer.
Lawless and her friends filed complaints with the police department’s Internal Affairs division, but in many cases like this it’s the defendant’s word against that of the police…except when there’s surveillance video to prove one’s innocence. The case against Lawless was dropped after video footage from the store’s four security cameras were examined.

In some instances when viewing video evidence, such as with the Lawless incident, the truth is blatantly clear-cut, by even the untrained observer. But in many cases, the proof often falls into gray areas easily argued between opposing parties. When a video forensic expert’s observations, analysis and opinion are based on his own perceptions, experience and expertise, especially without a governing of the profession or widespread acceptance of the science, it’s easy to see why video forensics is sometimes discounted.

Yet, in a world laden with video technology, and with video surveillance systems in nearly every public environment you can imagine, the task of interpreting what is seen on video, including authenticating and clarifying the images, is not within the realm of the legal profession. When the “videotape” is rewound, it is best left to the experts who can help the court better understand the technology and circumstances as they relate to each incident. That is, unless you’re on the side of the fence that thinks video forensics is a bunch of bunk…er, junk. Ultimately, however, in this author’s opinion, especially given the amount of forensic video evidence surfacing in the courts today, the science of video forensics will soon earn the respect of all legal personnel.

 

 

 

photo credit: Security Camera Portrait via photopin (license)

Video Forensic Expert Edward J Primeau Curriculum Vitae

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