The objection is this man's unqualified. This man's not qualified to render any expert opinions about alteration of photographs, Your Honor.
I'm going to establish his qualifications. I just wanted to demonstrate -- I'm not even asking him for a conclusion.
It's a Kennedy conspiracy not -- He works repairing photo processing machines.
KEY QUOTEHe worked for years in the area of the alteration of negatives and photographic images, both still and motion picture.
It is true.
He worked -- he worked in optical effects. He knows exactly how photographs are altered legitimately and illegitimately. He was a staff consultant for the Select House Committee on Assassination. He's reviewed hundreds and thousands -- or hundreds, thousands of photographs for the purpose of determining both for authenticity and evidentiary value, both for the Assassination Committee and thereafter for his own research and writing.
He has not qualified as an expert other than in the Senate -- the House Select Committee that he was used as an expert. He has not testified -- he has not testified in a court of law as far as I know.
He testified in his deposition he never qualified as an expert, in court as an expert.
Ladies and gentlemen, we're going to excuse you for a little while. Don't talk about the case, don't form or express any opinions.
For the record, just while the jurors are here, too, mention was made of Exhibit 2036 in the last series and it should have been referred to as 2038.
The record will show that the jurors left the courtroom.
We're conducting a hearing under 402 of the evidence code with regard to the witness's qualifications.
Go ahead.
402 HEARING
VOIR DIRE DIRECT EXAMINATION BY MR. LEONARD:
First of all, to lay a foundation, what tests were you asked to accomplish or to undertake for the defense in this case, just in very general terms?
To examine the photographs and to render an opinion on whether I found any evidence of falsification.
Now, let's go back.
When did you first start your experience in the field of photography, generally?
And have you continued to be actively involved in the field of photography, generally, since then?
I was hired by a motion exhibit picture optical house in New York City and was hired as an optical technician.
And describe in as much detail as you can what you did, and with particular emphasis on the creation of alterated (sic) images of any kind in either motion picture or still photography?
In the motion picture optical field, a large percentage of the work that's done is specifically to alter images, adding titles, doing split screens, inserting images within another image.
I would say that probably between 60 and 75 percent of all the work that's done involves that.
Okay.
And how long did -- and in order to do that, just in general terms, what techniques did you use when you were working in this field?
Well, there are various different ways; matte insertion, split screens, using masking techniques either through film or through repositions of shutters, changing sizes, correcting irregularities, things of that nature. Product shots, inserting, say, a can of furniture spray or something of that nature within a background.
Okay.
And how long did you work in the field?
You described a job you had when you were working in optical effects in motion pictures.
Did you also work in the field of optical effects in still photography?
Well, as I said, I started in the optical field by 1969, and to a degree I'm still doing it today.
And with regard to still photography in particular, where was your first employment where you were involved in the creation of altered images for purposes of advertising or any other purpose?
Okay.
And what in particular, what types -- you gave the example of a product shot with a can inserted.
Just explain that a little bit more, and explain the process that you would go through with that?
Well, the most likely way, the way where it's usually done is you would have your product shot preshot to the sizing and position that you would want it to be on one piece of film, you would have a background on another piece of film.
You would photograph the product shot on to a piece of black-and white-high contrast film called Kodalith, K-o-d-a-l-i-t-h, you would then retouch the Kodalith to make sure that you have blacked out everything that you want to mask out of the image.
You then do a negative of the original Kodalith in what they call register -- a pin register.
THE COURT REPORTER: P-i-n?
You then take a piece of unexposed film or photographic paper, however you want to do it, and you photograph the product with the clear core matte which is black all around and clear in the center.
You then go back and take your background and the negative of the clear core matte which is called a black core matte. The purpose of a matte is to eliminate photographing a double image in the same space.
You then project that down or photograph that down, depending on the technique used, and what you're left with at the end is what's known as a composite image.
You would have the insert of your product shot against an existing background.
Now, that's what -- you've just described this process of creating an altered photographic image.
I take it that's something that's done in the photographic industry, particularly in advertising, frequently, correct?
Okay.
And that's the -- was that the type of work that you did for some period of time in New York in the position that you were describing?
Now, by virtue of your experience both in the -- in optical effects in film and also these optical effects in still photography, did you become knowledgeable about the various methods to alter photographs, including the one that you just mentioned?
Are you familiar with the indicia of those methods to alter photographs?
In other words, looking at a photograph or a negative to determine whether or not such alteration has taken place?
Okay.
Now, there came a time that you became engaged with the House Select Committee on Assassination; is that correct?
The House Assassination Committee or the House Committee on Assassinations, as it was formerly known, was an organization or group formed by Congress to investigate the work of the Warren Commission.
They were to study the Warren Report, to question witnesses that may not have been questioned by the Warren Commission, and to determine the accuracy or fallacy of the Warren Commission report.
Now, among the vast amount of evidence that this committee was investigating was certain photographic and motion picture evidence; is that correct?
Tell us, if you will, what role, if any, you had for the Committee in the analysis of this evidence, the gathering of it, the analysis of it, and in particular, for purposes of authenticity?
I was named as the committee staff photographic consultant. The work I did included identifying and defining images on film and photographs that were to be analyzed by the Committee, and in some cases analyzing them myself.
The Committee's formal life was 1977 to 1978. I was working for them and elements of the Committee for about six months prior to the official forming of the -- of the Committee itself, and their investigation, and for about another six months after they officially closed down as well.
Okay.
Describe for the Court, if you will, how often you would consult, and at least give an estimate of that, if you will?
It would vary. There might be times when there would be several days in a row. There would be times when a week would go by where there would be nothing, and two weeks would go by. In some cases it was a couple of hours. Sometimes it was by telephone. Sometimes it was in person. It involved testimony before the House Committee on the first day of the public hearings.
It would be impossible to give an exact description of the time involved because it varied. No two weeks were possibly ever the same.
There was a -- just so the Court has an idea of the type of materials we're talking about, there were two photographic or motion picture items that many of us are familiar with, that you had direct contact with or you analyzed; is that correct, with with regard to the House Select Committee?
Well, the one I'm thinking of is a rather famous picture of Lee Harvey Oswald in the backyard of his -- of his house, purportedly holding a rifle?
Did you -- there was also a motion picture that many of us have heard about called the Zapruder film.
Are you familiar with that?
(BY MR. LEONARD) Now, the Zapruder film was filmed -- shot by a bystander just as President Kennedy was shot?
The history that relates to that I had worked on the Zapruder film for some years prior to the creation of the House Committee. It was my releasing of the film on a TV show called "Good Night America" in 1975 that directly led to the House Committee being formed in the first place.
When the Committee was formed, I was hired as their staff photographic consultant, and I worked with the formal photographic panel in analyzing the Zapruder film and others. And we would have sessions where we would sit and study individual frames, where we would analyze motion, reaction time, possible indication of timing of shots, things of that nature.
You mentioned the photographic panel, were you a -- were you working in conjunction with the photographic panel?
Okay.
Now, you have continued -- you have written several -- you've written books about the Kennedy assassination; is that correct?
Is it fair to say that those -- that in preparing those books and in researching that, you had to look at, analyze, and examine, hundreds or thousands of photographs concerning the Kennedy assassination?
And in the course of that, did you have to make determinations as to whether or not photographs were authentic?
Have you been -- have you worked around photography in areas other than what you've described?
In other words, I've talked about optical effects and I've talked about both motion picture and still photography.
Have you worked in other fields relating to photography or other businesses? Let's put it that way.
I have. I have worked in areas where -- where I've done work with computers -- computers relating to photography, yes.
Have you had experience actually repairing various types of photographic processing machines?
Okay.
And by virtue of that experience, did you become familiar not only with the indicia of altered images and photographs and the manner in which photographs can be altered, but actually some of the machinery that's used in altering, the actual minutia of the machinery that's used?
Yes. Using -- using the -- the machinery you become familiar with it and the mechanical processes involved, yes.
From time to time have you -- have others consulted with you about the authenticity of photographs or the analysis of photographs?
Okay.
Was there an occasion when the "National Enquirer" actually contacted you to authenticate the -- attempt to authenticate a photograph?
The situation was that someone had apparently come to them and represented a photograph of -- of voodoo -- a voodoo ritual or something of that nature, and there was an item within the picture that a photographer claimed was a photograph of a -- of a spirit or something that he had been able to conjure up and photograph.
And the "Enquirer" wanted me to authenticate it and --
No. As a matter of fact, I discovered that there was a natural explanation for that problem.
And just in general terms, how were you able to determine that, sir, for the "National Enquirer"?
I examined contact sheet, as I recall, and noticed that the image that he was talking about extended beyond the edge of the frame itself, indicating that it was a problem with, or a flaw with the film, as opposed to an image being photographed.
I don't have anything else for the purpose of voir dire.
VOIR DIRE CROSS-EXAMINATION BY MR. GELBLUM:
Mr. Groden, you've had no formal training whatsoever in learning how to determine the authenticity of photographs, correct?
And you never testified in court or qualified in court as an expert on photography, correct?
And these photographic processing equipment that you repair, that's like commercial photos, like one-hour photo kind of places?
You said that you first gained experience -- your first job of photography was this optical house in New York?
Yes.
There's no optical effects with motion pictures involved in the analysis of the Bruno Magli picture, is there?
Only -- only -- the only way it would be connected is the techniques, some of the techniques might be the same.
(BY MR. GELBLUM) "That," meaning the optical effects of the first job.
(Reading:) Q. That's done with motion
picture film? A. Yes. Q. Exclusively with motion
picture film? A. Yes. Q. Not done with videotape? A. No. Q. Or still photography film? A. You might have a still --
specific still photograph, maybe you
might want to animate on but you're not.
And you said that you worked with still photography optical effects with 2 by 2 Slides; is that right?
And page 18, line 24, to page 19, line 18 -- you didn't mention at your deposition anything about doing optical effects on still photography at that job, did you?
(BY MR. GELBLUM) Do you recall testifying at your deposition saying anything about working with 2 by 2 Slides, optical effects and still photography?
The House Select Committee, that's the next thing Mr. Leonard asked you about, that was about 18 years ago?
You testified for a few days -- I mean -- I'm sorry.
You worked for a few days here and there over a couple years, right?
And the testimony you talked about was not about altered photographs, was it, you gave on the first day of the hearings?
I don't recall. It went on for many hours. They may have asked about specific -- they asked questions relating to matters of photo work that needed to be done. This was at the outset of the hearing. And I was not allowed to volunteer specific information; I merely answered their questions.
But you were not -- you did not give any testimony about altered photographs at that testimony, did you?
Okay.
Now, the Oswald backyard photograph, you say you were the one who discovered it was fake; is that what you're saying?
Now, you said you also worked on the Kennedy -- on various photos relating to the assassination for the last 30 years?
Other than the House Committee, that's all been on your own time and for your own purposes, correct?
Not all of it. I did some -- some work for submission to the Rockefeller Commission and the Senate Select Committee on -- on Government. It was a Church Committee, actually.
-- did you mention that?
And what you said is, you looked at -- as soon as you looked at it, you immediately recognized that it was just a fake -- no, it wasn't a fake, it was a technical problem with the photograph?
You didn't have to do any complicated analysis to determine whether it had been altered, correct?
The analysis of -- of photographic images to determine whether or not they're altered, tell us what that boils down to, in the most basic terms?
The most basic -- most basic and simplest way to start dealing with it is observation, what you're capable of seeing and detecting with your eye, comparing it to experience.
Beyond that, you can use techniques of photograph photogrammetry for measurement to -- well, you would check to find out if there are -- are obvious cut lines or paste lines, or for digitalization, you'd worry about whether you could find pixels or things of that nature.
There's an endless variety, I would say.
But on this most basic level, it's a matter of observation. Sometimes it happens right away; sometimes it takes time. You just simply need to know in that data base, or whatever, if anything strikes you as being odd or not visually correct.
And again, throughout your career you have examined thousands of photographs for purposes of determining whether they're authentic, correct?
And again, you were employed for some number of years actually creating duplicate and altered negatives, correct?
You were asked about the panel of photographic experts.
Was there a proficiency test that was done of the -- of the panel of photographic experts that you participated in?
Was there a -- was there an occasion when the panel of photographic experts was given some photographs, some of which were altered, some of which weren't, to determine whether or not they could figure out which ones were altered and which ones weren't?
At this point, Mr. Leonard, I was hopeful that the proceedings will assist the Court and in enlighten the Court about what this witness's expertise has to do with the --
-- examination that you wish to proffer him for, and thus far, I am at a loss to see what expertise you have reference to with regards to a particular examination.
What I can do is have him go through in summary fashion what I expect to elicit from him substantively, if that will be helpful. You can compare his experience with the --
I'd like -- it would be helpful to have an examination of this witness as to his experience or knowledge in that particular area that you are going to be inquiring about in this case.
(BY MR. LEONARD) You have undertaken an analysis of the -- the particular photographic image of Mr. Simpson with the Bruno Magli shoes?
Can you explain for the Court in summary fashion, what you did to examine the photograph and the surrounding photographs on the contact sheet and negative strip for purposes of determining whether or not you could discern whether this photograph was altered?
I examined the photograph itself. I examined the original that -- purports to be an original negative. I examined the surrounding frames, two contact sheets specifically, the one that this photograph is contained in and another one. I examined irregularities within the surrounding area on the negative itself, surrounding this particular frame, and made determinations dependent upon my observations of those items.
Would you like to see some of the specific exhibits we prepared, Your Honor, for purposes of illustrating this?
Well, I'm trying to understand what his expertise -- what the expertise is with regards to this exhibit.
Well, his expertise, Your Honor, he's done this for years, he's examined photographs, he's created duplicate altered photographs for purposes of -- professionally, and he's familiar with the methods that are used to do that.
And we can -- I can illustrate that. If you want me to go through his testimony, I will, so that he can demonstrate exactly what he's doing.
And that might make it easier for the Court to determine whether or not -- the question with regard to his expertise.
I don't know how else to do it, Your Honor.
This individual has --
Then you ought to know what the basis of his expertise is on that portion of that testimony.
His expertise is that he was in the business of creating altered images. The technology is -- is basically the same. There's some very simple techniques that are used. There are also some very complicated techniques.
Where -- it might be helpful to examine him as to what the techniques are and what his experience is with regard to his knowledge of it.
(BY MR. LEONARD) Can you describe for the court the general -- in general terms the techniques that are used to create altered photographic images?
First of all, let me ask you about motion picture film --
Motion picture film is -- most basic level, is a string or repetitive series of still photographs.
Okay.
And there are techniques used to create optical effects that involve creating altered images in some of the individual frames -- still frames; is that correct?
Okay.
And those techniques -- you utilized those techniques when you worked in optical effects; is that correct?
Okay.
Are those techniques, at their base, different from the techniques that are used to dup -- to create altered still photographs?
But when it comes to creating a duplicate altered image on a piece of film, okay, the techniques are basically the same as they would be for a still photographic alteration; is that correct?
Okay.
Now, describe for us in general terms the techniques that are used to create altered still photographic images?
There are several.
I would say the most common would be, as I mentioned before, manual matte insertion, where you create a matte and insert an image photographically.
Another technique would be cut and paste, whereby you would physically cut out an item -- photographic image and place it on top of another one and rephotograph it.
Or you could use an air brush technique, which is very similar to cut and paste, but varies in the fact that you're not just placing one on another but you're retouching it, spraying an additional image to help disguise the cut mark or a difference in grain pattern, things of that nature.
Lastly, and relatively new, is digitization, where it's done within the -- an electronic domain as opposed to a photographic or mechanical domain. The other techniques that I described are physically altering something that is a photographic image either onto film or on -- on photographic paper. The digitalization of an image is done within a computer, and that varies from the others more than any of the others do against themselves because you're altering the physical image electronically and you can regenerate them into a photographic image after the fact.
Okay.
Now, throughout the course of your career as a photographer, during the time that you were with the -- working with the Senate House Select Committee and also during the time you were working in optical effects or duplicating negatives, and up to the present time, including your research and analysis and examination of thousands of photographs relating to the Kennedy assassination, have you become familiar with all of these techniques, sir?
Okay.
Do you -- are you -- do you know and can you testify to the jury with regard to the indicia or the indications of these techniques in a still photograph?
Okay.
Have you undertaken a thorough review of the photographic image in this case and the surrounding images to determine whether or not there are indicia that the photograph has been altered?
Okay.
Now, one of the most basic elements to altering a photograph is the creation of a duplicate negative; isn't that correct?
Let's put it this way --
I'm sorry.
I was going to say a duplicate might be determined as being an exact copy of the original.
What you would do is do a copy negative or an altered negative that would -- could conceivably be referred to as a duplicate. It would not be an original, but it would be -- it would be an altered duplicate.
Let me put it to you this way: If you were going to alter a photograph such as this one, and you didn't want anybody to find out, what would you -- what's the basic -- one of the first things you'd have to do, sir, if you thought they were going to go back and investigate and look at the original source, that is what purports to be the original negative?
You would have to create a forgery, you'd have to create something that would purport to be an original negative.
Are there some very basic indicia that show you that a photograph -- that a negative is actually a duplicate negative and not an original negative?
Okay.
And can you describe some of those to the Court that you are familiar with by virtue of your experience in duplicating negatives, creating altered negatives, and by virtue of all your experience in analyzing photographs. Just give some of them to the Court.
If you were going to try to insert a photograph into another position, you'd need to position -- you'd need to know where it goes, you need to register it, something could fall out of register, something could create a false line. It's difficult to do it perfectly. There are usually some indications of -- of fakery that can be observed.
Now, these indications of fakery, sir, those are factors or phenomenon that you can -- that you can often readily identify and that are universal in photography? In other words, they're -- when you talk about out of register, you're talking about, for instance, a -- a frame in a line of film that's slightly out of kilter; is that correct?
You're also talking about, for instance, when you talk about register, with regard to color, you're talking about if it's -- if there is an item that's a certain color, that you don't see echoes of the color where it shouldn't be on the photograph, correct?
Okay.
And these are all things that you're familiar with by virtue of your 30 years experience as a photographer, as an analyst, as a researcher, as someone that was involved in optical effects and as one that was involved in the duplication of negatives, isn't that correct, sir?
Is there any doubt in your mind, sir -- I know you're not a professional witness.
Is there any doubt in your mind that you can sit in that stand and you're qualified to tell the jury the things you're going to tell them; is there any doubt?
Mr. Groden, the only time in your entire 51 years anybody has ever paid you a penny to determine the authenticity of a photograph is 14 years ago with the "National Enquirer" with this phony image of the voodoo ritual?
I was asked to pay for -- not asked to pay.
I was asked to determine other work -- tell you what, before I answer that, will you repeat the question, make sure I'm understanding it the way you're asking.
Other than this "National Enquirer" 14 years ago, when you looked at it, you immediately saw a problem, have you ever been paid by anybody to determine the authenticity of a photograph?
Someone came to me relating to a -- as I recall, a Korean political party. Photographs were taken, and the claim was being made by this -- this party that spirits were being conjured up for some kind of support. And the photographs were being published or were -- it was part of some kind of a legal situation in Korea, as I understand it, and they wanted me to determine whether or not the photographs had been physically altered in any way.
And that's it, that's the only time you've ever been asked by anybody, for money, to determine the authenticity of the photograph?
And what you do for a living, sir, is not determine the authenticity of photographs; you write books and produce videos about the Kennedy assassination, right?
I do repair work on photo processing machines, I do photo enlarging work, black-and white-photo laboratory work. That's about it.
Is that true?
Okay.
And you're not opining -- you talked about digitization for a while with Mr. Leonard.
You're are not opining there's any digitization involved here, are you?
All right.
And Mr. Leonard keeps saying that you worked in the field of creating altered photographic images.
When did you do that?
You didn't tell me about that at your deposition.
When did you do that?
I did that for all the years that I was involved in motion picture optical affects and -- and slide work.
At your deposition you didn't mention that; you said all you do is duplicate and enlarge, right?
Your Honor, I think that the witness has demonstrated -- look, he's not an academic, not a professional witness, but I believe the witness has demonstrated that he has sufficient knowledge and experience in this field, particularly in recognizing a duplicate altered photographic image, which is what he's doing here, to be able to testify to this jury.
Mr. Gelblum obviously has the right to cross-examine him on his -- on the extent of his qualifications, but I would suggest that that goes to the weight of his testimony as opposed to whether or not he's actually qualified.
And I think that, again, we have demonstrated by virtue of his practical experience, by virtue of the experience he's had with the committee, also on his own -- I mean when I -- I guess what I find a little disturbing is that this gentleman is -- does -- well, I'm not trying to predict Your Honor's problem or any kind of a ruling but --
To the extent Your Honor might have a concern that part of the experience that he has is when he was doing his own research, I don't know why that shouldn't be taken into account, and so I would suggest that he has absolute sufficient experience and knowledge in this field to be able to testify to this jury.
Again, if Mr. Gelblum chooses to cross-examine him on his qualifications, that would be to the weight.
That's all going to be laid out for the jury.
Your Honor, the man clearly isn't qualified to do this -- to testify on this score.
Under Evidence Code Section 720(a), he has to show if they were knowledge, skill, training, education or training to qualify him as an expert.
He admitted he has no education and no training whatsoever in this field; none.
All he's done 20 years ago -- if you look -- he worked 14 years ago, worked for the "National Enquirer," saw some haze five years ago, looked at something for somebody in Korea, saw fog on the picture. He's never been paid other than those two times to determine authenticity.
He's never qualified as an expert because he's not an expert.
His work is in the area of the Kennedy assassination. He knows a lot about the film footage and the photography, the still photos. That doesn't -- with regard to -- with respect to the Kennedy assassination, simply that he sits around his house, looks at photos and determines whether they're fake, and publishes books saying he thinks they're fake.
That doesn't qualify him as an expert.
What qualifies him is training, education, experience.
And I submit to you that the indicia of experience that's relevant is somebody else recognizing he's an expert and using him for that.
He just sits around, literally, and decides whether he thinks a picture is a fake or not, discusses it with other people in the assassination research community and they have their quarrels, and publishes whatever he wants to publish. Doesn't make an expert.
It would be misleading to the jury to allow this man with his feeble qualifications to get up and talk about this picture being a fake.
It would appear to me that this witness has done a little bit more than what you describe.
He's indicated that he's done work in a field that would involve alterations or work with photographs, negatives. He states he's age 51, he states he commenced working in the field of photography in 1969.
Whether his experience is such, and his testimony is such that his testimony will be credible or not will certainly be subjected to your vigorous cross-examination.
But for the purposes of establishing a basis on which to allow a witness to testify as an expert does not require formal training, does not require a degree and does not require prior experience as an expert witness. It simply requires some degree of knowledge or some degree of training, formal or otherwise, that would enable him to testify beyond that which would be allowed as a lay witness.
I think it would be fair to characterize this witness as something more than a lay witness.
So the Court will allow him to offer that evidence.
The witness apparently has created some additional material since his deposition that they intend to use. And I don't think that's appropriate.
I want to remind the Court, they took this position rigorously with regard to our experts, anything they did after their deposition, and the Court would not let us use it or rely on it.
These are audio visual aids. There's nothing new substantively. It's the same photographs.
It's a Kennedy conspiracy not -- He works repairing photo processing machines.
I got 100 percent.
It would be misleading to the jury to allow this man with his feeble qualifications to get up and talk about this picture being a fake.
I think it would be fair to characterize this witness as something more than a lay witness. So the Court will allow him to offer that evidence.
As the man says, he knows how to fake slides.