THE AGE WE ARE IN
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DIGITAL EVIDENCE CAN BLOW YOUR CASE
One would probably need to be in a sequestered hermitage on the dark side of the moon without access to audio or video feed to not have seen or heard about some aspect of the Kyle Rittenhouse trial.
With some evidently pleased that the acquittal verdict seems to have upheld the ancient right of self-defense deeply embedded in Anglo-American law and others seeing the verdict as an indication that American justice simply is blind and in need of serious reforms — one thing is clear – America has a great political and social divide. One could posit that one hasn’t seen quite so irreconcilable perspectives since the original OJ verdict.
However, one thing that any seasoned court observer would not find surprising was what was described in the Kenosha News” [1] Blow up at Kyle Rittenhouse trial over enlarging Photos and Video [2]
As reporter are want to do – using language likely to evoke that of an Mixed Martial Arts match or a prize fight contest the writer Scott Bauer of the Associated Press in the Kenosha News article stated in breathless terms “Attorneys in Kyle Rittenhouse’s murder trial sparred for a second day over the technology used to zoom in on video and create enlarged images…” Prosecutors argued for enlarging key images … Much of the action that night was captured on sometimes hard-to-decipher cellphone video, as well as by a drone… The defense rested its case … but not before arguing with prosecutors about whether an enlarged image taken from a drone video could be admitted into evidence.”[3]
“A Wisconsin crime lab employee testified … that the software program adds pixels to the image and he could not say with certainty what color the added pixels are… If it is not the same as the original and colors were added to that, that is a distortion of what, in fact, the original photograph was,”[4]
The Prosecutor’s retort was “This is just not the age we’re in,” [emphasis added] …. “We are in an age where software is able to enlarge and do things.”
The disagreement arose after the Defense told prosecutors they would have to introduce an expert to prove that images taken from a drone were not distorted if they used the pinch-to-zoom function on an iPad to make them easier to see.[5]
Defense attorneys said they would object to the jury viewing the drone video. The same footage prompted a heated dispute earlier in the trial over technical questions of whether a still image taken from the video was distorted when it was enlarged. [emphasis added][6]
Judge Schroeder said he had “qualms” about admitting the video during the trial, but because it had already been shown in court, he would allow the jury to re-watch it during deliberations. But if it turns out the video should not have been admitted into evidence, “it’s going to be ugly,” Schroeder warned. He said the mistrial request will have to be addressed if there is a guilty verdict.[7]
OUR ADVERSARIAL SYSTEM
This kind of colloquy is perhaps as a good reminder as any that the American trial system is an adversarial system. “The adversary system by which legal disputes are settled in the United States promotes the idea that legal controversies are battles or contests to be fought and won using all available resources. The contemporary Anglo-American adversary system has gradually evolved, over several hundred years.[8]
No doubt Rittenhouse’s defense team were pleased to update their motion for mistrial to include claims of the prosecution withholding video evidence from defense. Not having a crystal ball as to the trial’s outcome one might guess that they were probably excited to be able to hedge their bets.
The motion for mistrial stated that “The video footage has been at the center of this case,” reads the motion from defense. “The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant.” [9]
A top self-defense lawyer and legal expert stated withholding video “absolutely calls for a mistrial with prejudice.”[10]
In the end the Jury’s verdict rendered the dispute over the reliability of this video evidence moot including the previous motion on introduction of a still photograph that was ostensibly altered by enlargement. In a case involving the most serious of charges and the prospects of life imprisonment having the outcome hinging upon whether a video or photograph is accurate, authentic and original is more than a little dramatic.
THE AGE OF DIGITAL PHOTOGRAPHS AND VIDEO
Certainly it highlights that “in the age we are in” our legal system is still wrestling with what do you with digital evidence now that we are well past the era of the photographic negatives which backstopped photographs. Negatives, after all could with relative ease be looked to ascertain accuracy, authenticity and originally.
Sometimes tragedies bequeath to society a better way forward. By way of example Fire Safety codes in this country have been enhanced and improved after each succeeding terrible fire of note.[11] In a similar vein this controversial case highlights how integral video and digital photograph evidence can be to modern trials. This no doubt follows from the adage that a picture tells a thousand words. Yet that is quite a gamble when digital evidence is so easily manipulatable.
~VJ Tabone
[1] https://www.kenoshanews.com/news/state-and-regional/crime-and-courts/blow-up-at-kyle-rittenhouse-trial-over-enlarging-photos-and-video/article_429cdb55-c13f-5ca9-966f-270793bd9ebc.html
[2] Ibid
[3] Ibid
[4] Ibid
[5] https://www.politico.com/news/2021/11/17/rittenhouse-lawyers-judge-trial-video-522908
[6] Ibid
[7] Ibid
[8]https://en.wikipedia.org/wiki/Adversarial_system#:~:text=The%20adversarial%20system%20or%20adversary,truth%20and%20pass%20judgment%20accordingly.
[9] https://www.dailywire.com/news/new-video-absolutely-calls-for-a-mistrial-with-prejudice-says-top-self-defense-lawyer?utm_campaign=dw_newsletter&utm_medium=email&utm_source=housefile&utm_content=non_member
[10] Ibid
[11] https://www.nfpa.org/~/media/Files/forms%20and%20premiums/101%20handbook/NFP101HB09_CHS1.pdf
Case Histories: Fires Influencing the Life Safety Code Paul E. Teague, M.A. Updated by Chief Ronald R. Farr