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Expert forensic video analysis a matter of urgency

Video evidence related to criminal proceedings often remains unexamined by experts while defendants languish in jail, Crystal Beach, Ont. forensic video analyst Michael Plaxton tells AdvocateDaily.com.

“This is the point that I try to hammer home all the time,” says Plaxton, principal of New Media Forensics, a company which provides expert video and photographic analysis for both Crown and defence clients.

“Get the video analyzed by someone who knows what they’re doing. Have it done properly, have it done soon, and it might save people a great deal of grief,” he says.

Currently, there are no regulations requiring that videos be submitted for expert analysis early in the prosecution of a case, Plaxton says.

Nor is there a requirement that the analysis be done by a certified professional, even though there is an international organization that provides advanced training and certification in the science of forensic video analysis, he says.

Plaxton is certified by the Law Enforcement Video Association (LEVA), and one of the only certified forensic video analysts who practises privately in Canada.

“There only about 60 board certified analysts, and most are employed by police departments. Certification is very rigorous. The success rate is less than 50 per cent,” Plaxton says.

“One of the things that ticks me off is people doing this kind of work with no background or training in it. Frequently, there is so much video that many police departments have to use their own officers to collect it. It is important to ensure that they’re doing it correctly.”

Plaxton strongly disagrees with investigators conducting their own analysis.

“There are two things wrong with it. They don’t have the proper training, and they have a built-in bias, whereas a forensic video analyst is required to be impartial,” he says.

Plaxton explains that every analyst, whether employed by a police department or not, is required to be independent.

“When you get into court, no matter who you are employed by, your role is to remain impartial and to assist the trier of fact. It is the job of the analyst to ensure that the jury or the judge understands everything about the video,” he says.

“I’ve had the advantage of viewing the video hundreds of times, frame by frame, backwards, forwards, and adjusting it to get the maximum detail out of it. There are tonnes of detail that a jury might not notice because they may only see it three or four times during the trial, and perhaps a few more times when they’re deliberating. There are plenty of little details you can miss when you’re just looking at the overall video.”

Plaxton points to technical issues that can be misleading to an untrained eye.

“Some little things they’re seeing may actually be an artifact. There may be some little glitch in the video that looks like something, but as an expert, I can see it’s actually a result of some technical issues,” he says.

Plaxton recounts the story of a client who made a purchase at a convenience store which was robbed 20 minutes later by a man wearing similar clothes. His client was subsequently arrested and jailed.

“The investigators, who were not in any way qualified to examine video, did a comparison of the video of the robbery and a re-enactment in the arrested man’s clothes. They saw the coat and buttons looked the same, and there was a ski pass hanging off the jacket," he says.

“So he was charged with armed robbery. He went to jail and didn’t make bail. Finally, after about 18 months his attorney brought the video to me for analysis.”

Plaxton quickly identified obvious differences in the clothes. After confirmation by a police video expert, the man was released.

“As a forensic video expert, it’s my job to make comparisons of clothing and provide an opinion on whether they’re consistent. The police didn’t do anything terribly wrong by doing a re-enactment using the suspect clothing. They acted in good faith. The problem is that it was the investigators themselves who made the comparison,” he says.

Plaxton says it's a classic example of confirmation bias.

“When they went to make their comparison, they had already decided, whether consciously or not. In their minds, they think they’ve got their guy. And so, when they compare the video, they tend to pick out the things that support that theory. The case could have been cleared up within a few days of the arrest, and the charges quickly dismissed, had an expert analyzed the video.”

In another case, Plaxton says he examined video relating to a young man who had been sitting in jail for three years.

“No one actually examined the video until I received it. The prosecution had not submitted the video for analysis, neither had the defence attorneys, so now we’re looking at three years down the road when it’s impossible to go back and see if there's other video that should have been collected,” he says.

Plaxton says such shortsightedness can take a tremendous toll on an accused person's life.

“You lose your job, your savings, maybe your spouse, and your home," he says.

"My biggest issue is with the idea of not getting somebody qualified as soon as possible because at this point, even if charges are dropped immediately, your life is a total shambles.”

Plaxton is adamant that there needs to be greater awareness of the need for expertise and urgency in these matters.

“If police departments are going to use frontline officers to do this sort of work — the collection of video evidence — I would like to see them receive some training so that they do it correctly," he says.

"Even if you don’t have the opportunity or the funding to hire a forensic video analyst or technician to do the actual collecting, it is still important that prosecutors and defence attorneys get the video to an analyst as soon as they can,” Plaxton says.

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