Earlier this week, a jury heard closing arguments in the trial of Kyle Rittenhouse. Rittenhouse rose to national prominence in August 2020 after allegedly shooting three people at a Wisconsin protest, two of whom died, the third injured. Now, he stands trial for those alleged crimes.
One unexpected curveball: whether or not the prosecution should be allowed to use an iPad to zoom in on footage that allegedly shows Rittenhouse at the scene of the crime. The defense argued that when one uses the pinch-to-zoom feature available on Apple devices, it alters the footage:
“It uses artificial intelligence, or their logarithms, to create what they believe is happening,” said defense attorney Mark Richards. “So this isn’t actually enhanced video, this is Apple’s iPad programming creating what it thinks is there, not what necessarily is there.”
NOTE: Many publications that have published this quote allege that the defense meant “algorithms” rather than “logarithms.”
Prosecution insisted such alterations don’t happen, and that zooming is no different than putting a magnifying glass over a printed photograph. Judge Bruce Schroeder initially said the prosecution would have to bring in an expert to confirm this, otherwise they’d have to use the raw footage taken from a wider angle.
“I think as we see AI evolve, a new breed of validation questions may arise as the computer begins to generate life like images of events and people that do not exist,” says James Whitehead, Contact Discovery’s Associate Director of Digital Forensics, who has testified as an expert witness in other trials. “There’s an entire industry of applications… that leverage or skew the underlying digital photography [so we can] create panda face versions of ourselves.”
While the panda face apps might be an extreme example, Whitehead was also quick to clarify that the fact these apps exist doesn’t automatically mean the raw data is unreliable.
“These apps function because the underlying digital image is trustworthy as is the underlying technology,” he said. It’s perhaps paradoxical that as technology gets better, it almost becomes harder for people to trust it.
In court, Judge Schroeder admitted to not having a very good understanding of technology. “I know less than anyone in the room here I’m sure about all this stuff,” he said.
It’s easy for people who live and breathe tech to think that pinch-to-zoom is a standard feature that everyone is familiar with, but then… should that matter? How often laypeople use certain technology isn’t necessarily a good standard for whether or not that technology should be admissible in court.
If a judge knows they don’t understand a topic as Schroeder admits he doesn’t understand pinch-to-zoom technology, it does make some sense to err on the side of caution. Once a jury has seen evidence, the judge can’t change that if they later learn that evidence was unreliable. When judges know they’re out of their depth, deferring to experts before they make a call is quite reasonable.
“The fact finders are a diverse group of individuals,” says Whitehead. “We must remember that education of the fact finder isn’t a factor to be lightly regarded. The rules of evidence have evolved over the years as has the evidence. It’s still good practice to explain what you are leveraging and why it matters. If evidence or story is technical in nature, [it’s best to] have an expert on standby who can assist with the explanations.”
At the end of the day, criminal trials aren’t about what the Twitterverse thinks; they’re about what judges and juries think. Whether or not the prosecution should need an expert to confirm the validity of pinch-to-zoom footage is beside the point if a judge says they do.
Later in the trial, Judge Schroeder had a change of heart and said the jury could consider the enlarged footage, however he wasn’t shy about expressing his skepticism for it.
“You’re basing this extremely important segment of the evidence on something that I’m really queasy about,” Schroeder said. “I’m not going to give an instruction on it, but I’ve made my record on the high risk that I think it presents for the case.”
So what can other legal teams learn from this ruling?
For one, that just because technology seems commonplace, that doesn’t mean a judge will understand the ins and outs of the technology well enough to confidently make a ruling on its admissibility. Whitehead says people might be surprised at how often judges expect expert testimony for technology end-users might consider commonplace.
“Technology is wasted on the young, like naps and kindergarten,” he said. “Judges are often removed from the [supposedly] commonplace setting for which our matter may hinge.”
Be ready to defend any part of your case involving technology, and yes, that may even mean expert testimony when you don’t agree expert testimony is needed. In this case, Schroeder initially put the burden of proof on the party that presents that evidence, not the party trying to disqualify evidence. Could that open the door for other teams to cast doubt on opposition’s evidence even if they don’t have their own experts? After this tech debate in such a highly publicized trial, some attorneys that would’ve otherwise thought they can’t get evidence thrown out might try anyway. Even if evidence is ultimately admitted, a drawn out debate about its reliability could still shape jurors’ perceptions of that evidence. Having expert testimony at the ready can potentially prevent such a debate.
Another thing most legal teams know, but this case reinforces: don’t be overly reliant on one “smoking gun” if you can help it. Perhaps the prosecution will be able to get a conviction based on evidence besides their pinch-to-zoom footage. Only time will tell. The one constant of the legal world is that as much as we try to predict it, it remains unpredictable. You never know which evidence could be disqualified, so finding multiple “smoking guns” makes for a stronger case.