Best Practices for Audio and Video Evidence: Avoid Mistakes in Court!

Episode Notes

Transcript

The Digital Edge

Best Practices for Audio and Video Evidence: Avoid Mistakes in Court!

07/23/2020

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Intro: Welcome to The Digital Edge with Sharon Nelson and Jim Calloway, your hosts, both legal technologists, authors and lecturers invite industry professionals to discuss a new topic related to lawyers and technology. You’re listening to Legal Talk Network.

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Sharon D. Nelson: Welcome to the 151st edition of The Digital Edge: Lawyers and Technology. We’re glad to have you with us. I’m Sharon Nelson, President of Sensei Enterprises, an information technology, cybersecurity, and digital forensics firm in Fairfax, Virginia.

Jim Calloway: And I’m Jim Calloway, Director of the Oklahoma Bar Association’s Management Assistance Program. Today our topic is “Best Practices for Audio and Video Evidence: Avoid Mistakes in Court!”

Sharon D. Nelson: But first thanks to our sponsor Clio. Check out Clio’s Daily Matters podcast for the latest on legal in the COVID-19 era. Listen to daily matters at clio.com/daily or subscribe wherever you get your podcast.

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Jim Calloway: We would also like to thank our sponsor the Blackletter Podcast, a show dedicated to making law exciting and fun with informative interviews and advice from esteemed guests.

Thanks to Scorpion. Scorpion is the legal provider of marketing solutions for the legal industry. With nearly 20 years of experience serving attorneys, Scorpion can help you grow your practice. Learn more at scorpionlegal.com.

Today our guest is David Notowitz, the Founder and Lead Forensic Expert at the National Center for Audio and Video Forensics. He began his career as an editor, cameraman, and daily news segment producer at the Financial News Network, went on to produce and edit feature films and documentaries for television and theatrical release, and in 2001 was asked to work on his first court case as a forensic video expert. Since 2001 his audio, video, and smartphone forensics company, NCAVF, has grown to work on hundreds of cases per year across the country, with five full time employees headquartered in Los Angeles.

Thanks for joining us today, David.

David Notowitz: Thank you very much Sharon and Jim. It’s honored to be here. Only 151 episodes, really? I mean get — like get busy already guys, come on. Seriously though, I was going to share something that I thought about when I read how many episodes you guys have done.

The best ways to reap success in any business and in life is just showing up constantly and consistently and you’ve done that. It’s a crucial lesson. I think everyone here can take with your example that if someone has a goal, just show up and you have 151 episodes. Structure your time consistently, work on that goal, even if it’s half an hour a day or even half an hour a week, I love it.

Sharon D. Nelson: All right. Well thank you, we appreciate that and we’ll keep on showing up.

So tell us David, what got you into the world of audio and video forensics and commit to building a business in that field?

David Notowitz: So, I was editing and interested in television and film, shooting documentaries, doing corporate training videos and also event videos like weddings and bar mitzvahs videos, and a friend of mine, one of my best, I was actually the Best Man in his wedding, he’s a lawyer and he contacted me and he said could I help him with the case involved video. I was a little bit nervous of course because it’s a court case and you’re like — that’s like go to in front of a judge and testify and everything and I was very nervous about the idea, but we worked together. It went really well. I actually testified on that. That was in 2001 and he would give me like high-five afterwards, you did really well.

Five years later he called me again and said you know what, I have more video, I have another case. It was a very high-profile case in 2006, very high-profile, I mean the news was all over it, vans with their satellite dishes and everything, but we worked in that case, I was working in that case enough for probably year and a half. I was in the courtroom for a month helping him with this case, and that’s what got me realizing that I could do this for a living and I could focus on this.

And so from 2007 and onwards I really transitioned my business for a number of years, so until 2010 or so I was only doing court videos.

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The reason I got so many more jobs after that was because it was a high-profile case and all the lawyers were telling their friends about me.

Sharon D. Nelson: Well that’s good that when they talk about you in a good way, that’s a good thing.

David Notowitz: Exactly and it was — it was a word-of-mouth and such a niche kind of skill, in a niche business, but I have realized, look there’s going to be a lot of surveillance video coming up now soon, a lot of body cameras and people are going to be having their homes hooked up with surveillance. I knew it was going to be a big thing and so I thought you know what, let’s get on the ground floor of this and create a business.

Jim Calloway: Well with all your vast and varied experience, what are some of the biggest mistakes you’ve seen attorneys make with their video evidence in court and what would you advise them to do differently?

David Notowitz: Yes, I’ve seen a lot of mistakes in court and I’ve taught a lot of attorneys based on all the mistakes that I’ve seen. I would say the biggest mistake and it’s a general statement is lack of preparation with their evidence. Now how can that be right, attorneys are great though at preparing for court, they have documents they read, they memorize testimony from depositions if they have them for their case, all the reports, everything they memorize all the important parts.

For some reasons still I find that when there’s video or audio evidence that comes into their hand, they don’t treat it the same. They say what it shows is what it is. They just assume what you see is what you get, and that’s not the case. You need to analyze it very carefully.  Every frame should be known and understood by the attorney, every frame that might be important.

You tell me like we’ll get into this little bit later too, but how many frames would you guys say a second is video, how many frames a second?

Sharon D. Nelson: I don’t have a clue, Jim do you?

Jim Calloway: Nope.

Sharon D. Nelson: Well we’re not going to testify in court obviously.

David Notowitz: Right, but it’s really important for people to know this. Normally frames per second on your — let’s say an iPhone or television, you’re watching 30 frames a second, 30 individual frames make up that video. Now, a lot of surveillance video might only run at two frames a second or four frames a second, so much less data is being captured by surveillance systems often. Not always, sometimes it’s more frames a second, but when it’s this small, there’s a lot of details that are lost or missed and that could be happening between the frames. That’s just one example. And the attorneys need to look through their evidence and really understand that, so they won’t be caught off guard.

And what happens is when the attorneys are not totally clear about their evidence, the other side and I can’t emphasize this enough, the other side and I’ve seen it in court, the attorney on the other side might misrepresent the evidence even in opening statements right in front of the jury, and so the jury hears this and guess what, you don’t argue, you don’t object to this misinformation that’s being given over even in the opening statements, because they’re not familiar enough with the evidence.

So spend the time with the evidence, get clear on it and that will help you do much better for your client.

Sharon D. Nelson: So, what are some of the important characteristics of video, like for instance, frame rate, image resolution and metadata, why are those significant to attorneys?

David Notowitz: All right. So we mentioned frame rate a little bit of reading, which is talking about typical videos we’re used to seeing is 30 frames a second, so that’s what our brain is used to see. If the frame rate is less than that, if the frame rate let’s say is two frames a second as I mentioned before or four frames, our brain will make up the space and kind of fill in the holes and the brain will think it’s smooth motion in some ways filling in the evidence almost, filling in something that’s really not there.

I had a case once where a police officer testified he saw someone punched someone else in the video. He saw the punch. I go back to the video evidence, the original evidence in the surveillance system at the gas station, look at the evidence, watched the video that the officer said he watched. There’s no punch seen. All you see is two people standing there and then you see a little movement from one guy and the very next frame, one of the guys on the ground.

So the officer actually assumed that there was the punch when there really wasn’t, that’s one piece, one characteristic, that’s very important is the frame rate, understanding it.

I will give another one, let’s say how about metadata. So metadata for your listeners is the data that’s embedded in any digital file and often it’ll tell you a lot of information that is not seen in the actual video or the actual audio.

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It might give you hints to what kind of device was used to record this evidence, which may tell you that the evidence you are looking at or listening to is not the highest resolution that you could get if you go back to the original video or the original audio. If the metadata tells you, you have a certain kind of camera that took the footage and yet the footage you have is not that resolution then you know something is wrong here.

So looking at the metadata can be very important to analyzing your evidence.

Jim Calloway: So do attorneys have to become experts at all of this audio and video technology to do a good job with their client’s evidence in court today?

David Notowitz: And that’s a really good question. I mean attorneys, you don’t need to be an expert in the video and audio technology, no, you don’t need to be an expert in that, but you should become an expert with the specifics of your digital evidence. You need to become very familiar with it in order to ask the right questions during cross of your experts and witnesses.

We as a video and audio expert are brought in to trial a lot less than you might think. We have hundreds of cases a year, but we might only testify twelve times a year. So why is that, because our attorney clients learn about their evidence so well and they ask us questions so that they become experts on their evidence and then they ask their witnesses or their experts questions to bring out the facts that we taught them.

So they don’t need necessarily to bring us in and ask us the questions. It’s even better if they can bring out the facts and it’s be revealed so that can be revealed to the jury in a more natural way all the details that the evidence shows. Does that make sense?

Sharon D. Nelson: It does.

Jim Calloway: Well before we move on to our next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to the Digital Edge on the Legal Talk Network. Today our subject is, “Best Practices for Audio and Video Evidence: Avoid Mistakes in Court!”

Our guest today is David Notowitz, the Founder and Lead Forensic Expert at the National Center for Audio and Video Forensics. So David, how do you advise attorneys to set up and display video evidence in court? I know we do this kind of thing all the time and it seems to me that they just have a terrible time understanding how to do this correctly.

David Notowitz: Yeah, and it makes attorneys look so bad when they’re not prepared, especially if this happens in front of a jury. It’s embarrassing for the attorney, but it also makes them look less professional, less prepared and it hurts their — I think it hurts them for their client.

So yeah, setting up in court is so important and I’ve found that the best way to do it is to plan ahead and I’m going to give you some tips right now about this. Courthouses first of all, a lot of them are not modern, it’s very old, old technology. Some of them have been modernized.

In Los Angeles where I am there are some very new courthouses, but a lot of them are really old, they have really old technology, old cables, basically you can’t trust them to do anything with your audio and video evidence. So you have to bring in your own equipment. What does that mean? Well, a week before your trial I suggest you go in there, figure out which courtroom you’re going to have and ask the judge if you can go in there during lunch or at the end of the day whatever best for the judge and set up the actual equipment you’re going to use. Do a test with it. A week before or four days before test your flat-screen TV, test your speakers with the actual equipment you’re going to use, the computers, the cables, everything should be the same in the same room and make sure it works. That’s the first step.

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The next thing is to not necessarily operate it yourself. So have a paralegal or your second chair or a technician that you hire, such as our company even, to go in and operate the computer during the Trial, help with playback, because you don’t need to focus on that, you should focus on your argument, you should focus on the jury. You not have to worry about picking the right clip to play in your video or picking the right section of audio and cueing it up and get everything working, because that will distract you from the most important thing which is your case and the evidence.

So this is all very important. Make sure, another thing is that you know how to turn off or dim the courtroom lights if necessary, if it’s possible, to make your evidence show in the most optimal environment. Also do not use projection screens, okay people. If your evidence is important, if the details in your evidence is important, the projection screen systems will not show that evidence clearly, even if a flat-screen TV that you bring in, is a quarter of the size of your projection screen that is better to use than a projection system.

Sharon D. Nelson: You know one thing I would add David is that I know in most courthouses and certainly in ours, judges don’t want to hear questions about you coming in, there’s usually these days a courthouse technology office and they coordinate with the judge’s schedule, so usually it’s a courthouse technology office that you would call and they’ll do the scheduling with you, which is great, but David is right, it’s really important to go in and test, because we’ve seen cases where if you bring in say a DVD or something and it won’t operate in the court’s equipment, you’re just out, you can’t present your evidence.

So you have to go before to make sure that anything that you want to show will operate correctly, so that’s very sound advice indeed.

David Notowitz: I had a case recently in Virginia, while I was there, before I went I said are you the system is working well. Yes, we have flat-screen TVs, the most modern equipment, but I brought all my cables just in case, because you always have the backup, right.

Sharon D. Nelson: Right.

David Notowitz: So I show up in the Trial, show up in the courthouse. The TV was great, but the whole interface to plug into the TV was totally outdated and if I plugged in my computer which I tried, the resolution went down to about half size of our evidence, half the resolution. So I had to plug in directly from my computer into the TV and I did that on the fly because I’m very experienced, but thank God I had planned ahead and I brought all the cables I needed and I plugged in directly and it worked out well.

Sharon D. Nelson: Well, every good expert as you know David, every good expert carries a black bag full of crap.

David Notowitz: Exactly. Hey, that’s not nice.

Sharon D. Nelson: Well, it’s a lot of garbage in there until you need it and then it’s priceless.

David Notowitz: And you should see me trying to get through security with all these cables.

Sharon D. Nelson: Oh I know, yeah.

David Notowitz: You know all security at the bottom of the courtroom, courthouse, they have to someone call up to the court and saying, are you allowing this guy in with all this stuff, like yeah.

Sharon D. Nelson: Well, sometimes you have to depending on where you are, you have to get permission in advance so security has a note that you’re to be let in. In our case we were recognized so much that they don’t even ask anymore, which is a good thing. Can you tell us David about a case you’ve worked on where on the surface the video or the audio appears to tell a clear easy to understand story, but as you get into it, the data contained in the media reveals a story that tells the opposite story?

David Notowitz: Okay, okay, sure, sure. So, what comes to mind first is a very high-profile case we had 2018, so it’s been a while, but that’s why I can share it now. It was an OIS, an Officer-Involved Shooting in Minneapolis Minnesota, and a pretty violent case, criminal case where two officers are chasing a man and why it’s so controversial, it was two White officers chasing a Black man in Minneapolis and he was shot in the back and died during a chase. That looks really bad of course, and there were protests. Subways were closed, the streets were closed, this in 2018 in July, and the Police Oversight Committee for the whole state called me, because it’s analyzing this to see should the officers be charged and when you look at the videos which there were videos of course, because the body cameras were on.

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They were really bumpy, really hard to see what’s going on, everyone’s running at full force and honestly when you looked at it first, it looked like the officers just shot the guy in the back and it looked really bad for the officers at first.

But what we did was we stabilized the video frame by frame very carefully to see what happened and when we played it back at normal speed it looks really bad, but if you stabilize it and play it back in slow motion, zoom it in frame by frame you saw right before the suspect was shot he actually pulls out a gun and you see the edge of the gun come around him as he’s running and he’s slowly turning and that’s when the officer fired, that’s what the officer said. He said he saw the suspect turning with the gun, and once we saw that we realized that the officers were not at fault but they actually made a good shoot and all these protests that happened about shooting this guy in the back where it’s a complete overreaction way ahead of getting out the facts, figuring out what happened and it was pretty amazing and just a very fast time, within a couple of days we did this which was unprecedented with our rush, but we were doing it because of the crazy violence that was happening in the city at the time.

Jim Calloway: Well, as you know we’re very interested in technology with this podcast and so what kind of video and audio technologies are emerging right now that will make the work of an audio and video forensic expert more challenging and what technologies will make this work easier?

David Notowitz: So the challenging areas or because technology is being better and better, it’s easier to fake things, okay, it’s easier to create new audio, create new video that didn’t exist. It’s easier to edit things and that’s one of the tricks and difficulties we have, it’s always trying to evaluate, is this evidence authentic or not. But in terms of making things easier for us, we have a lot of tools that are allowing us to do that. One is extracting data from smartphones for example, recovering data from smartphones, recovering data from flash drives and hard drives. There’s a lot of really cool tools available to help us do that now and we do that a lot with our clients.

Another area is creation of 3D models that we have. So animation and 3D models that we have is becoming much easier now and less expensive. So determining the speed of a car or the height of a suspect seen in a video or the distances between people, distances between objects, we can do all this. We could do it before, but it was much more expensive and now these tools are now much less expensive and much easier to use to both do a 3D scan and also to make the measurements necessary for cases like this.

Another area that’s really cool now is that you know juries sometimes want to visit a scene of an incident, that can be very valuable. Attorneys want their juries to visit a scene of the incident. That can be very valuable but judges are sometimes reluctant to let that happen because you need a lot of expenses involved. You need a bus transportation, you need a lot more guards, the time to do this is takes a lot of time out of the court, but there are more tools now to bring the scene back into the courtroom, to allow a jury to walk through a location where an incident occurred. It’s not perfect but you can get like a 3D look, a 3D walk-through reconstructing an area to allow another level of information and option for attorneys as they question witnesses and walk them through an incident.

The last tool I want to bring up that comes to mind, are drones. Drones are amazing because they allow you to get into areas that were previously inaccessible. You couldn’t scan let’s say the middle of a freeway, middle of a highway or an intersection as easily. You would have to close off all the traffic. Well now you can bring up a drone potentially and scan an intersection or scan a private business, an area around a private business, where maybe you don’t have access to it, but you can fly a drone around the edges of the property and record enough data to get accurate scans and make measurements.

So a lot of new tools out there that are very useful and we use them all the time.

Jim Calloway: Well, before we move on to our next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to the Digital Edge on the Legal Talk Network. Today our subject is, “Best Practices for Audio and Video Evidence: Avoid Mistakes in Court!”

Our guest today is David Notowitz, the Founder and Lead Forensic Expert at the National Center for Audio and Video Forensics. So David, what are the limitations of audio and video forensics analysis and how have media portrayals of audio and video forensics created some skewed perspectives about what’s possible?

David Notowitz: Yeah. So the limits of audio and video forensic analysis is that, a lot of cameras today are still low resolution. They’re not good at shooting at night. They are not good at capturing what the eye sees and instead it’s like this grainy footage and when we see movies and TV all the time we always have someone yelling out, enhance, enhance, get closer, get closer and really we can only get so close, because it’s a limit and how many pixels there is in that original data. That’s what we’re limited to, we can only do what we have, what we’re given, what’s recorded, we can’t invent detail, and in the movies in TV that’s what — that’s what they pretend to do and it just builds up expectations that are not realistic.

Jim Calloway: Well speaking of not realistic deepfakes has been a hot topic for the last year or two, what are some approaches for making sure the video or audio evidence is truthful and hasn’t been manipulated and how do you see these processes evolving as the technologies become more sophisticated?

David Notowitz: Yeah, I get question about deepfakes a lot, and it’s a really good question. Deepfakes are when someone basically just fakes a video, and every month the technology is getting better, but at the same time we have ways of trying to analyze the deepfakes as best we can to look for mistakes in the fake video. It’s a back and forth kind of process where someone’s getting better at creating deepfakes and someone else is getting better at analyzing the deepfakes. It’s going to get really difficult after a while to prove that a video is not faked.

So how do we solve this, what’s going to happen in court. What’s going to happen with the evidence? It’s going to come down to I think what’s called a chain of evidence. You’re going to have to prove how the video got created and who had ownership of that video or that audio from the beginning, that’s what’s going to end up happening. We are going to have to have a really good chain of evidence from beginning of the recording until it’s presented in court.

Sharon D. Nelson: Well, thank you so much, David. We’re really grateful that you were with us today and I know a lot of folks are interested in audio and video forensic analysis and now it’s presented in court. So they got a whole encapsulated explanation of all that today. So thank you so much for taking the time to be with us. We’re very grateful.

David Notowitz: Oh, thanks. It’s been my pleasure. I hope the listeners have something they learned they can take back to their practice, help their clients with the evidence.

Sharon D. Nelson: And that does it for this edition of The Digital Edge: Lawyers and Technology; and remember, you can subscribe to all of the editions of this podcast at legaltalknetwork.com or on Apple Podcasts. And if you enjoyed our podcast, please rate us in Apple Podcasts.

Jim Calloway: Thanks for joining us. Goodbye Ms. Sharon.

Sharon D. Nelson: Happy Trails, Cowboy.

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