Exhibits, lies and videotape
Videos uploaded to social media—such as the one a Sacramento prosecutor is citing—are impossible to authenticate, says national forensics expert
Nigel Walker, swinging a black flag with an encircled white cross over his alt-right shoulder, strides past the state Capitol while explaining to an unseen videographer what it means to be a white nationalist. Decrying affirmative action, Walker says he wants “the same rights as every other race … to not be discriminated against.” Then he spots the crowd up ahead and calls for its attention:
He’s about to get it.
What happens next is the subject of a charged court battle involving three anti-fascist defendants accused of beating up white supremacists during a pro-Trump rally two summers ago. A video that purports to show a piece of the action, uploaded to YouTube and cited by the prosecution, could become its own legal drama.
“Nothing that’s been uploaded to a social media site like YouTube can be authenticated,” cautioned Edward Primeau, founder of Primeau Forensics, which conducts audio and video forensic investigations. “It lacks integrity and can’t be identified as representing what happened once it’s been uploaded to any social media channel.”
That could be a problem for the Sacramento County district attorney’s office, which was forced to show a portion of the video during a December 6 preliminary hearing—after the prosecution’s sole witness admitted he didn’t personally see the two fights allegedly involving the defendants. If the high-profile case becomes a higher-profile trial, the video could join an emerging legal quandary:
In an age where the White House used a doctored recording to falsely accuse a CNN reporter of assaulting a young aide during a Trump press conference, just how trustworthy is video?
Primeau, who testifies as an expert witness in legal cases involving video and audio footage, said courts are still catching up to the increasing susceptibility of 21st century media.
“This is all kind of new the way things are unfolding,” he told SN&R in a recent phone interview from his Michigan office.
“Every court is handling the question as it comes up” based on legal precedent and arguments made by the attorneys, the certified forensic consultant added. “Courts are having to handle this on a case by case basis.”
But there is a legal standard for establishing what constitutes admissible video evidence, say two Sacramento attorneys interviewed by SN&R. Former homicide prosecutor Noah Phillips and veteran civil rights attorney Stewart Katz say lawyers need one thing above all else to get video accepted by a judge: a witness who can testify that the video accurately depicts what they saw with their own eyes.
“You still need someone to come in to say … ’I was there. I saw it. That’s the way it looked,’” Phillips said. “If they don’t have that, there’s a gap.”
At last month’s preliminary hearing, California Highway Patrol Officer Donovan Ayres was unable to fill that gap. The prosecution’s only witness was positioned on the roof of the Capitol building the day of the riots and testified that his view of the fighting was obscured by tree canopies and the roof he was standing on. But Ayres said that Walker told him the video accurately showed what happened to him.
That should be enough to ensure the case advances, Katz said.
But for the video to be admitted at trial, Walker or an eyewitness with a better vantage point than Ayres would likely have to testify, Phillips and Katz said. As for how a jury interprets the evidence, that’s another story.
“Juries have been increasingly suspicious in general to prosecution evidence,” Katz said. “It’s a sign of the times.”
If that evidence is culled from social media, there’s good reason to be skeptical, Primeau said.
The problem with videos uploaded to platforms such as YouTube or Instagram is that there is no chain of custody, Primeau explained. That’s because once a video is uploaded to social media, it’s stripped of the metadata that can tell someone like him if it’s been doctored.
“We could deceive,” he said.
By way of example, Primeau cited a high-profile case the media consulted him about a few years ago: the 2014 police shooting of 17-year-old Laquan McDonald in Chicago. In October, a jury convicted former Chicago police Officer Jason Van Dyke of second-degree murder, basing its verdict partly on police dash-cam video showing the officer fire 16 times as the black teenager walked away.
Shortly after the police department released the video in 2015, a clip of it surfaced on YouTube with doctored audio intended to further inflame the public, Primeau said. The clip attracted more than a million views, and a number of articles debunking the faked audio.
Phillips has first-hand experience with citing uploaded video at trial. He said his approach was to subpoena the social media company and get a custodian of records to testify how the company receives and stores uploaded content. But he said the prosecution still needs an eyewitness to connect the dots between video and real life.
“You can’t just take evidence off YouTube and expect that’s going to be competent evidence in court,” he said. “My 9-year-old can alter video now. I’m not kidding.”
We don’t yet know whether the Walker video will be allowed at trial, or even if there will be a trial.
The preliminary hearing was continued to January 22, when Sacramento Superior Court Judge Stacy Boulware Eurie will decide if enough probable cause exists to try Yvonne Felarca, Michael A. Williams and Porfirio Paz on felony assault and misdemeanor rioting charges. The judge is also expected to rule on a defense motion to dismiss all charges against the antifa three.
Walker, one of the purported victims, stars in one of the prosecution’s best pieces of evidence thus far: the 6-and-a-half-minute video uploaded to YouTube. But the video could also be an Achilles’ heel.
After Deputy District Attorney Paris Coleman acknowledged he couldn’t authenticate the video, Felarca’s attorney, Shanta Driver, objected to it being shown, telling the judge she had no way of knowing whether it had been manipulated or not. Coleman said that was an issue to settle at trial, an answer the judge seemed to accept. Boulware Eurie overruled the objection and let a portion of the video play.
The issue is particularly important for Felarca, leader of the leftist group By Any Means Necessary. The felony assault charge that Felarca faces is for attacking Walker, which the video allegedly depicts.
Coleman identified the video as “Nazi looking for trouble.” A YouTube video titled “Nazi looking for trouble gets a beat down in Sacramento,” uploaded November 17, 2016, by user YGGDRASIL, has nearly 6,000 views and depicts the same events as Coleman’s clip. Played in its entirety with audio, it shows the events leading up to the confrontation:
Walker reluctantly answers the questions of the unseen videographer as he walks alongside the Capitol. He wears a green cap, black T-shirt and red-streaked backpack, and hoists a flag with a white nationalist symbol. Summoning protesters with shouts of “antifa scum,” Walker waves the flag and back pedals.
A woman, her lower face covered, grabs Walker’s flag. Someone else sprays Walker in the face with an unidentified substance. Walker swings his pole at someone or something the camera doesn’t show, making audible contact. A man concealing his lower face comes up behind Walker and hits him in the head with an object. Walker cuts across the lawn and jogs the length of the sidewalk as someone shouts “let’s get him.”
“One person against a thousand,” Walker says.
“Fuck you Nazi,” someone shouts.
Walker cuts over to 10th Street, dodging a couple of hand-pitched projectiles along the way. He approaches officers with his hands up, then points at the demonstrators. “You see what they do? And they call me a Nazi!”
He catches his breath and calms his voice. “Sir, do you see this?” he asks one of the stone-faced officers. “Is there no action that’s gonna be taken?”
He raises his voice and points. “These violent anti-fascists, they’re not gonna have anything done to them, are they?”
Felarca enters the frame holding a poster and shouting, “Nazi scum, get the fuck off our streets!” She hip-checks him. “Get the fuck off our streets!” She pelts his midsection with small fists. She and others then yank Walker to the ground by his backpack and flag-stripped pole. A group starts kicking him. That’s when officers reenter the frame and pry people off Walker.
Along with felony assault, Felarca is charged with two riot-related misdemeanors, including one that alleges she was a ringleader. Katz said the video might actually help Felarca if it doesn’t show her participating in the more serious stomping.
“If you’re trying to avoid a felony, maybe that’s the best evidence she has,” he posited.
Before screening an abridged version of the video, Coleman downplayed the issue of its authenticity.
“It does not matter who took the picture, who took the video,” he said, as long as his witness could corroborate its content.
That was a problem for defense counsel, since Ayres, the witness, admitted he couldn’t identify combatants from his position atop the Capitol’s roof. Having Ayres narrate events he didn’t himself witness in a video that Coleman couldn’t source seemed unusual to Primeau, the video expert.
“I’m surprised that a judge let that play,” he said. “It’s kind of a mess is what it is.”
It’s the kind of mess that could grow if the public ever realizes just how fragile perceived reality is. For instance, Katz said, he knows an expert who trusts video evidence even less than eyewitness testimony, which is notoriously unreliable, “because he knew how malleable it was.”