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Experts should keep audience in mind when testifying: Plaxton

Careful preparation and keeping abreast of the latest advancements in their field is key for expert witnesses asked to testify at a criminal trial, says Crystal Beach, Ont., forensic video specialist Michael Plaxton.

"Any expert should keep himself up to date, through articles, seminars, and training," says Plaxton, principal at New Media Forensics, a company which provides video and photographic analysis for both Crown and defence clients.

Drawing on more than a decade of experience working in the field of digital imaging and forensic video analysis, Plaxton says expert witnesses must learn about the case when they are asked to testify.

"It's important to get together with the lawyer for a pretrial meeting to discuss what points will be brought up in court," he tells AdvocateDaily.com.

Plaxton says a pretrial meeting is vital to ensure he's prepared for questions asked by a client in court.

"They might suddenly ask, 'Is it possible that X is really Y?' and since I was not expecting that question, that can be problematic," he says.

"By the time I get around to being cross-examined, it's entirely possible my answer to the question will have escaped me since it is not part of my report."

During a pretrial meeting, he says his client could ask if an object shown on video in the hand of the accused could be a gun.

"At the meeting I'm going to say, 'Yes, that's possible, but understand that on cross-examination if I'm asked if it's possible that it is a cellphone in his hand, I'm going to give the same response, because I can't say one way or the other,'" Plaxton says.

Because of his extensive experience, he says some lawyers don't think the pretrial discussion with him is necessary, but he disagrees.

"I always say 'Let's get together for a couple of hours and discuss where you're going to go with your questions so that neither of us is surprised once I'm on the stand,'" Plaxton says.

A couple of days prior to the trial, he says he goes over the case material and refreshes his memory about the evidence, since many months may have passed since he was first introduced to it.

When giving testimony, he tries to talk in layman's terms, especially when addressing a jury.

"I carry around a lot of analogies in my head to make things a little easier for jurors to understand," he says. 

Plaxton gives the example of trying to explain how contrast and brightness can affect how an image is seen, so he tells jurors to think about how those qualities can be adjusted on a TV screen.

"When I am on the stand, I'm always conscious of who I am addressing, especially if it's a jury trial," Plaxton says. "I try to keep the technical mumbo jumbo to a minimum."

If it is a judge-only trial, he says he may be asked for technical clarification, giving an example from one of his past cases where the original evidence was contained on a mixture of digital video files and VHS tapes.

"When I was done giving my testimony, the judge, who said he failed science in high school, asked me if I could explain how I can make an exact duplicate of a VHS file in a digital format," Plaxton says.

"I could have sat there for five minutes talking about sampling rates and upsampling and thrown in a lot of physics, but instead, I just told him there is a standard set by the radio and television union," says Plaxton.

"If your equipment meets that particular standard, which mine does, then you can create an exact digital duplicate from a VHS recording, and that explanation was good enough for him," he says.

Plaxton, who is certified by the Law Enforcement Video Association, says technical knowledge and common sense are the main attributes an expert witness can bring to a trial.

"Certified forensic experts, like myself, are required to complete a specific number of hours of training each year in order to maintain our certification," he says.

They also need to be ready for rigid cross-examination, Plaxton says, recalling that a U.S. expert witness described the process as being similar to doing an oral presentation for your PhD, "Except the professors are throwing tomatoes at you as you're doing it."

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