Wednesday, April 28, 2010

Analyzing photo evidence.

It has been some time since I have blogged and with good reason.  I have been very busy the past few months working in back to back trials. All the cases were very interesting to say the least and they all had one common link, a plethora of photos. It has occurred to me over the years that there is tremendous value in studying photographic evidence with “fresh eyes”. All of my recent cases had a similar theme of the case team unearthing facts just with the photos. Facts that were either previously over-looked or perhaps just missed by prior counsel.

One particular case team I work with has made a habit of creating a “crime scene” review on the wall with photos. This allows for a chronology effect for ease of review and is very helpful. I have been able to recreate this effect with Cooliris and some careful numbering of photos in the digital environment. Reviewing photographic evidence with a logical progression is like telling a story and you would be amazed at what you may find.

As a trial consultant I may have only days to learn as much about a case as possible. Therefore, before review of key depositions and expert reports I am off to the photos (if any). I like to study visual aids to see what if anything jumps out at me or raises an eyebrow. A few years ago I was involved in a brutal rape case which was well photo documented by a large metropolitan police department. Amazingly the study of the photos by both me and the case team revealed potentially astonishing facts. Information which the investigating police officers had completely overlooked or just did not bother to report.

The case went on to settle but had it not the defense was armed with a battery of fantastic photo evidence questions. Questions which would have had any juror scratching their head and saying, “wow look at that…” Veteran case teams know common sense usually goes very far with jurors as opposed to combating expert mumbo jumbo.

Certainly the tampering of digital photos is an ongoing concern. However many of these suspicions can be relieved by the review of a competent forensics expert in any case. Not surprisingly I have seen recent juror questions inquiring about this very thing. After getting both counsel to agree to the authenticity of the photos the judge provided the jury with that instruction. The CSI effect strikes yet again!

In closing I would suggest to any case team that there may be fact patterns hidden in your photo or video evidence. Having a fresh set of eyes review this data whether a paralegal, consultant, associate or family member may reveal some surprising information. And this is information that your jurors may pick up on which in turn are potential questions which may go unanswered. Don’t leave them guessing in the deliberation room but rather arm them with all the visual tools they need to decide in your favor.

1 comment:

  1. Barry,

    I have to agree with your assessment of the importance of photos in trial. I think that most attorneys (not all) overlook the importance of the details in an array of photos. They can be very compelling.

    Since I left the private side of trial consulting and went to work for the Feds, I have been exposed to more video and photos than I care to remember. That said, each one CAN be important and MUST be explained to the jury. To paraphrase your comment, don't leave 'em hanging.

    Take care.