Litigator’s Guide to Using Video for Direct or Cross-Examination

This is a step by step guide to creating a chaptered video and corresponding questions for a witness for use in court.

Open Microsoft Silverlight Encoder.

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This product is one of a few commercially available video editing tools which enable the user to create reference points inside video or audio files. The same can be done with, for example, Adobe Flash. I will be producing a lesson on the use of Microsoft OneNote to enable real-time refreshing or confrontation of a witness with an audio recording but I have been unable to use OneNote with video. That being said, the OneNote technique is quicker, simpler and more flexible than the approach outlined in this lesson.

Create a new Job.

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If you have used the program before you may have a job or a project already saved. If not, just import the video file you wish to use. I usually start these projects this way.

Open the movie and then start marking the important parts.

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1. Start your video or scrub the slider to a place you want to mark.

2. Select the checkboxes for both thumbnails and key frames.

3. Click CTRL + M to create a marker at a point in the video.

4. Type in the descriptive text in the Marker Value box.

5. Create additional markers using CTRL + M.

6. Continue to enter descriptive text in the Marker Value box for each marker.

NB: The movie depicted in this lesson is a sample movie provided with Windows. I make not claim to ownership or creation of this video and it is only included for illustrative purposes.

Export your Markers as an XML file for editing and use later.

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Click on the small cogwheel icon at the bottom left of the Markers frame. Select Export. You will be given the option to save your exported XML file for later. We will call this export “Questions” (this will be explained later in the lesson).

Create a folder in which to save your exported file.

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We will save the file Questions in the new folder Video Project.

Now to “Encode” your new Silverlight video.

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1. Choose a template unless you are familiar with the program language. I choose the Silverlight Default template because it has all the components I need and it is clean and doesn’t distract from the content, in my opinion.

2. By experimenting with the software you will find ways to enhance the video and audio, for example making the audio louder so that it will be heard in court.

3. Then simply click “Encode in the bottom left of the screen. The software will then build your movie. This can take a while especially if you choose a high quality video and/or audio format. I find that usually I want to focus on high quality audio and that the video is not as important for my purpose.

The Encode button…

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Near the bottom left of your screen.

Your movie encoding…

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When the computer is finished encoding, it is set by default to open up your movie in a web browser.

The Web Browser

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When the video is playing, you have the option of displaying the chapters you created when you chose to create a Marker. This chapter is accurate to the thousandth of a second! Wait until you see how to integrate use of the movie with your XML file. Imagine that instead of “Cut to the bird scene” the caption took you to the spot of a witness statement called “description of the attacker” or “number of gunshots”.

Now you can use this video in an even more powerful way when combined with the exported XML file.

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Open the XML file you saved as Questions in a text editing program. If you double click it then you will see it in a web browser but you can’t edit it.

Here it is in a web browser, the default program to display XML files…

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To be clear, this is only for the purpose of illustrating the XML content. Open it in a text editing program as in the next Step in the lesson.

To open in another program…

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1. Right click the icon for the file.

Opening the file for editing in a text editor.

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Select Open with Notepad++ if you have such a program or “Open With” and choose Notepad or a similar program.

Now you will have a document you can edit and manipulate.

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All you really want to keep it the time and the content of the marker. If you know how to create a macro this can be easy but if not it can be a bit time-consuming. The next step shows you what you are trying to get to…

The modified document

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This took me about a minute just by deleting unnecessary stuff and without using a macro. I find that I will generate about 30 to 45 markers for an hour of video so that would take about 5 minutes to prepare.

Reorganizing the document for Examination or Cross-Examination

You are now equipped with a precise references for questions based upon a video or audio statement. Some examples of usage include…

Combining two disparate ideas in the original video (or audio)

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You will notice that I moved the Woodchuck topic to near the top and now all the bird references are together at the end. I also decided to ask the witness about “More birds” before asking about “Cut to the bird scene”.

Suppose you need to ask your witness about the relationship between brown horses and woodchucks. Simply prepare by moving your questions. By keeping the time association, you can “refresh” or “confront” the witness with parts of the video or audio that are at any point in the video. Remember that your video is chaptered now and you are able to instantly jump to the points that correspond with your questions.

Here is the document with minor changes in Word.

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This simple example may help demonstrate how a much longer and more factually complex statement, perhaps containing lies or parts which a witness is reluctant to repeat, could be very specifically woven into a series of questions. For example, if a witness says “I can’t remember if there were lots of birds there” or “I only remember Tweety and Daffy”, the witness can be instantly confronted with the irrefutable truth. The same applies to oral statements by the witness and in fact that is how I use it 90% of the time. If the witness said “I am sure that the white horse was in the lead the entire time” the witness can be instantly corrected.

The speed and control of this approach is not possible with the old VHS tool. The DVD movie has proven to be nearly as cumbersome. Chaptered/markered media files are the way of the future for utilization of statements in the courtroom.

When clear and loud, they are superior to transcripts, and work well along with transcripts when it is necessary to slow things down and pick apart specific sentences. The power of the chaptered statement lies in instantaneous confrontation with an irrefutable record which relays the demeanour of the witness to the court, the witness and perhaps even the jury.

It is possible to number the markers as well, so that the chapters on display on the video screen do not contain any information and could not be said to persuade the viewing judge and/or jury.

Similarly, by becoming familiar with the exporting and importing of markers, one can import comments which were created in Word back into the video, rather than only exporting then out of the chaptered video.

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