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Collecting, preserving digital evidence can make or break a case: Plaxton

Experience counts when dealing with crucial video evidence says Crystal Beach, Ont. forensic video analyst Michael Plaxton — a member of an elite crowd of only 57 forensic video analysts in the world certified by the Law Enforcement Video Association (LEVA).

"I have worked on many types of cases, but most of my career as a video analyst has involved homicides and robberies," Plaxton, who has testified as an expert witness in Ontario and Alberta courts, tells AdvocateDaily.com.

"Part of what I bring to the table is the knowledge of how to properly collect and preserve evidence to ensure it can be presented in court, says Plaxton, principal of New Media Forensics.

He recently announced he's now focused full-time on his consulting business after retiring from his position as a civilian forensic expert with the Hamilton Police Service for the past seven years. Previously, he served seven years with Durham Regional Police, five years with the Ontario Provincial Police and 23 years with the Canadian Armed Forces.

Plaxton says video surveillance can make or break a case for either the Crown or the defence. Storefront surveillance or cameras placed in strategic spots throughout a city could capture important data about an incident, he adds.

But like all other evidence, there are rules and procedures to ensure the courts are presented with images that are true and honest depictions of the events, Plaxton says.

"When we're dealing with evidence, we have to ensure it's the best quality and that means it has to be collected properly," he says. "It's not just a matter of going to the recorder and downloading the video. There are considerations that have to be taken into account to ensure that nothing changes when that video is retrieved."

Retrieving video evidence correctly is just the first step in collecting the data, Plaxton says. It must then be properly processed so that he can assure the courts what they are looking at is unaltered, he says.

"The analysis involves making sure everything is properly documented and done according to the standards of the Law Enforcement Video Association (LEVA)," he says. Part of the obligations to maintain his status as a certified analyst is to undergo a specific number of training hours annually and renew the certification every three years.

Plaxton says the standards set by LEVA are rigorous because there are "many technical things that can happen" between the moment of recording and its admission into court as evidence.

"That includes the downloading process, what I do with it afterwards and how I prepare it for the court," he says.

For example, a video where the image appears stretched indicates it may have been downloaded or processed incorrectly, Plaxton says.

"That could be important because if we're trying to identify a person on the video, a stretched-out version of it will give us the impression that he is heavier than he really is," he says.

"That's what happens when an inexperienced officer or technician downloads and handles the video," Plaxton says. "In that case, the video is not accurate and the inaccuracy hasn't been corrected."

A common error while downloading digital evidence is to check the time in the video, he says. Investigators often have only one chance to retrieve a key video because surveillance recorders copy over earlier data, Plaxton says.

He cites video evidence in a recent Hamilton murder trial where the video showed the suspects entering and leaving the premises.

"There was one camera that was important in establishing when two suspects went to a house, when they left it and whether they returned to the same area later," Plaxton explains. "Unfortunately, the police officer who collected the video didn't confirm the time the video was recorded. And when it was pointed out to him, he went back to the owner of the business the camera was in who said the clock was two hours fast.

"But the store owner had reset the clock so there was doubt as to the accuracy of the time," he says. "It was an important point of the trial, where the defence challenged the accuracy of that clock."

In private cases, it could be years before a video gets to Plaxton and it's often not possible to return to the recorder to determine if the clock was accurate.

"That is also true for determining how the video was obtained, and if there was a better way to have done it," he says.

Lawyers or police investigators should get a forensic video analyst involved in a case's video surveillance evidence as soon as possible, Plaxton says. If a defence attorney receives video evidence from investigators, he says an analyst should immediately review it to determine if it was obtained correctly.

"It's really important that they get that evidence to a certified analyst as soon as they can while there is still an opportunity to correct any problems," Plaxton says.

"An incident on video often lasts for a few minutes and it usually only takes me about an hour to look at the video and ascertain if it was obtained properly and then I can let the lawyer know if there's an issue with it," he says, adding it’s important to understand the sequence of events as they occurred.

Plaxton says he has a checklist that he goes through to ensure evidence is collected and handled properly.

"Unfortunately, police services may not have many qualified people to do this work," he says. "Very often it's just done by a road officer — they do the best they can, but they often don't have the training."

That checklist includes time checks, frame rate, aspect ratio, and proportionality of the image, video format and, if necessary, extracting the raw data of the video, Plaxton says. "Quite often I will use my tools that I know are forensically sound to access the hard drive, retrieve the raw data and do the conversion to a format that is playable," he explains.

"It's the in-depth understanding of what's happening to that video when you are getting it from the recorder that’s critical," Plaxton says. Expertise is required in the extraction of the evidence and also having the ability to explain any limitations, he says.

"Ultimately, my duty under the law is to the trier of fact to ensure they understand what the evidence means, its limitations and any changes that may have occurred resulting from the manner in which they were obtained," he says.

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