Redirect examination of FBI photograph expert (1 of 2)

📄 Redirect examination of FBI photograph expert (1 of 2) — Thursday, January 16, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\16\REDIRECT-EXAMINATION-OF-FBI-PH.DOC

TRIAL

▲ Day 43 of 57

◀ Direct examination of FBI photograph expert Redirect examination of FBI photograph expert ▶

Examiner: Peter Gelblum
Called by: Defense • Date: Thursday, January 16, 1997 • Utterances: 120

Defense attorney Leonard cross-examines an FBI photograph expert who testified that the 'Flammer photographs' showing Simpson in the distinctive shoes are authentic. Leonard attacks the reliability and subjectivity of the expert's analysis — two to three minutes per negative, no formal standards for key judgments — and attempts to introduce evidence that the photographs are being commercially rented for $12,000–$18,000 per week, suggesting a financial motive to fabricate them. The court shuts down Leonard's attempt to introduce a document proving the rental price, prompting him to abruptly end his examination.

# 1 A:

Yes, sir.

# 2 Q:

Okay. Now, in your career as an FBI agent, you testified earlier that you had been involved in two or three cases a year involving questioned photographs, right?

# 3 A:

Approximately, yes.

# 4 Q:

Okay. Would you agree with me, sir, that it would be a very rare occasion that you would have access to what was purported to be the original negatives of questioned photographs when you undertook those examinations at the FBI?

# 5 A:

Yes, sir, that's true.

# 6 Q:

Very rare. Maybe once every two or three years, correct?

# 7 A:

I'd say it was probably correct, yes.

# 8 Q:

Now, you aren't testifying to this jury that you are 100 percent certain that these photographs are fake, are you?

# 9 A:

I'm testifying to this jury --

# 10 Q:

Can you answer my question yes or no?

# 11 A:

I don't know if I can answer that yes or no correctly.

# 12 Q:

Do you remember me asking you that question in the deposition recently and you answering that no, you can't say that? Do you remember that, sir?

# 13 A:

Yes, I did.

# 14 Q:

Is that your position now, before this jury, or do you want to change your position?

# 15 A:

No, I don't want to change my position. But I would like the question restated, if I could, 'cause I'm not sure what you mean by it.

# 16 Q:

You can ask -- Mr. Gelblum can restate it if he needs to. Now, you would agree with me, would you not, that if someone is motivated enough, and has access to the most advanced techniques and technology, they can create a fake photograph that is virtually impossible to detect? Would you agree with that?

# 17 MR. GELBLUM:

Objection, this was asked and answered the other day, Your Honor.

# 18 MR. LEONARD:

We're dealing with different photographs.

# 19 MR. GELBLUM:

Exact question.

# 20 THE COURT:

We'll give Mr. Leonard wide latitude.

# 21 A:

I would --

# 22 MR. LEONARD:

Thank you.

# 23 A:

I would say given enough time, equipment, money, talent, it would take all four together, and the concerted effort, yes, sir.

KEY QUOTE

# 24 Q:

(BY MR.

MR. LEONARD) They would probably need to be pretty considerably motivated, wouldn't they, sir?

# 25 A:

Yes, sir.

# 26 Q:

Now, you went up to Buffalo, what, on January 7?

# 27 A:

Yes, sir.

# 28 Q:

Spent about a total of little less than two hours actually looking at photographs?

# 29 A:

Little more than that. About two and a half hours physically looking at the photographs.

# 30 Q:

And one of the things you were looking for, of course, was this -- as you described before, any evidence of -- of digital manipulation, correct?

# 31 A:

That's correct.

# 32 Q:

And in order to do that, you had to look around carefully, microscopically, around the edge of each photograph, each negative, correct?

# 33 A:

Well, the edge itself is one spot that you look, but the presence of digital manipulation would not necessarily only show up on the edges.

# 34 Q:

So my question was, you had to carefully look around, microscopically, the edge of each negative, right?

# 35 A:

Yes, sir.

# 36 Q:

In order to do the evaluation properly?

# 37 A:

Yes, sir.

# 38 Q:

And you had to look around the edge of anywhere in the photograph, any particular element in the photograph that you were particularly interested in, correct?

# 39 A:

Correct.

# 40 Q:

And you had to do that carefully, and had to do that microscopically, millimeter by millimeter, correct?

# 41 A:

Yes, sir.

# 42 Q:

And it's your testimony that you did that with each and every negative, each and every print, is that right, sir?

# 43 A:

Each and every negative containing images of Mr. Simpson particularly.

# 44 Q:

And there were 30 of them?

# 45 A:

Yes, sir.

# 46 Q:

And you testified at your deposition that you spent, what, about two minutes on each negative; is that right?

# 47 A:

Somewhere between two and three minutes, I believe I said.

# 48 Q:

Now, you've also testified earlier that this isn't an exact science, what you do?

# 49 A:

That's true.

# 50 Q:

It involves some subjective judgments, right?

# 51 A:

Yes, sir.

# 52 Q:

Some calls about whether or not phenomenon that you see are indicia of fakery or otherwise innocent, correct?

# 53 A:

That's correct.

# 54 Q:

Now, you did find some scratches along the photographs or along the negatives that you saw up in Buffalo, correct?

# 55 A:

Scratches on the negatives themselves.

# 56 Q:

And also you found what you thought might be continuous scratches along the side of the negatives, correct?

# 57 A:

No, I found continuous scratches on both -- the bulk of the negatives on the sides and in the center.

# 58 Q:

Okay. And in the case of the Flammer photographs, sir, unlike the Scull photograph, you were unable to discern or reach a conclusion whether these scratches could have been caused by the camera or by some other mechanism; is that right?

# 59 A:

Yes, sir. I did not -- I did not attempt to determine if they were caused by either the camera mechanism or the processing mechanism. I just recognize that they were scratches.

# 60 Q:

And you also weren't able to match each scratch with -- in other words, as the scratch continued along the side, you weren't -- there were numerous of them, you told me there were many, many, many, and you were unable to match each of them up. Remember you testifying to that at the deposition?

# 61 A:

Yes, sir.

# 62 Q:

Now, this is an area where you had to make a subjective judgment; isn't that true?

# 63 A:

Yes, sir.

# 64 Q:

You told me that there are no standards to determine whether or not you can call a scratch continuous, that you just have to match up what you thought was a majority of the scratches. Do you remember that?

# 65 A:

Yes, sir.

# 66 Q:

That's something that's subjective, there's nothing -- there's no guidelines we look to, there's no books, there's no nothing that can tell us about that, right?

# 67 A:

That's correct.

# 68 Q:

That's just something that you have to decide yourself?

KEY QUOTE

# 69 A:

Yes, sir.

# 70 Q:

And that goes for your analysis of many of the phenomenon that we've been talking about, both with regard to the Flammer photographs and the Scull photograph, correct?

# 71 A:

Yes, sir.

# 72 Q:

Now, you had to obtain some of the materials from a fellow named Rob MacElroy, correct?

# 73 A:

That's correct.

# 74 Q:

And you had contacted MacElroy on, what, the 7th of January, or was it the 8th?

# 75 A:

I believe -- well, I believe late evening of the 7th he contacted me, also on the 8th, and then I believe also on the 10th and 11th I want to say.

# 76 Q:

Now, MacElroy told you that he was in New York at the time that he contacted you; is that correct?

# 77 A:

That's correct.

# 78 Q:

And he told you that he was there in an attempt to sell the Flammer photographs?

# 79 MR. GELBLUM:

Objection, hearsay.

# 80 THE COURT:

Sustained.

# 81 Q:

(BY MR. LEONARD) Was it important to you, sir, to try to determine whether or not there was, as you described earlier in your testimony, to have enough motivation -- you described four elements, and one of them was motivation to fake the photograph, right?

# 82 A:

Yes.

# 83 Q:

Would you agree with me that making a lot of money from a photograph would be -- could certainly provide motivation to fake photographs?

# 84 MR. GELBLUM:

Objection, argumentative, Your Honor.

# 85 Q:

(BY MR. LEONARD) Would you agree with me?

# 86 MR. GELBLUM:

Objection.

# 87 THE COURT:

Well, you may answer.

# 88 A:

That would seem like a logical motive, yes, sir.

# 89 Q:

(BY MR. LEONARD) And MacElroy told you that he was attempting to sell the photographs, correct?

# 90 A:

Yes.

# 91 MR. GELBLUM:

Objection, hearsay.

# 92 THE COURT:

I'll sustain that.

# 93 MR. GELBLUM:

Move that it be stricken.

# 94 Q:

(BY MR. LEONARD) I want you to assume, sir, for purposes of your analysis, the Flammer photographs are being rented, sir, for $12,000 a week, they're being rented to various media outlets. Does that affect your opinion in any way, sir?

# 95 A:

No, sir.

# 96 Q:

Does it affect your opinion that they're being -- they're trying to rent that evidence to various news outlets for $18,000?

# 97 MR. GELBLUM:

Objection.

# 98 Q:

(BY MR. LEONARD) For -- till the end of jury --

# 99 MR. GELBLUM:

He's trying to get something in front of the jury that he can't get in front of through admissible means.

# 100 MR. LEONARD:

I can prove it up.

# 101 MR. GELBLUM:

Objection.

# 102 MR. PETROCELLI:

Objection.

# 103 THE COURT:

How many of you are going to object?

KEY QUOTE

# 104 MR. GELBLUM:

I am.

# 105 THE COURT:

Objection sustained. Mr. Leonard, you want to prove something up, prove it up with evidence.

# 106 MR. LEONARD:

May we approach?

# 107 THE COURT:

No. You are not permitted to prove up matters in this fashion.

# 108 MR. LEONARD:

I'd like to approach, Your Honor.

# 109 THE COURT:

No.

# 110 MR. LEONARD:

I have a document I'd like to show --

# 111 THE COURT:

Excuse me. I will not permit you to prove up that fact in that fashion.

# 112 MR. LEONARD:

Your Honor, you don't know what the document is.

# 113 THE COURT:

You're not going to prove it up with this witness during this examination.

# 114 MR. LEONARD:

May we approach, Your Honor?

# 115 THE COURT:

No. Now continue your examination.

# 116 MR. LEONARD:

I'd like to ask him if this document would affect his opinion.

# 117 MR. PETROCELLI:

He said it wouldn't.

# 118 THE COURT:

Continue your examination.

# 119 MR. LEONARD:

Your Honor, I have nothing further based on your ruling.

KEY QUOTE

# 120 THE COURT:

All right. Sit down. REDIRECT EXAMINATION BY MR. GELBLUM:

Temperature

tense

Key Quotes (4)

Witness

I would say given enough time, equipment, money, talent, it would take all four together, and the concerted effort, yes, sir.

Concedes that a sufficiently motivated and resourced party could create an undetectable fake photograph — the core premise of the defense's photo-fraud theory.

Witness

That's correct. That's just something that you have to decide yourself.

Admits there are no published standards or guidelines for determining whether scratches on negatives are 'continuous' — a key authentication criterion — undermining the scientific rigor of his analysis.

Mr. Leonard

I have nothing further based on your ruling.

Leonard signals the court's evidentiary ruling blocked his intended line of attack, dramatizing the suppression of what he claims is relevant impeachment evidence.

The Court

How many of you are going to object?

Rare moment of judicial exasperation when both Gelblum and Petrocelli simultaneously objected, highlighting the coordinated plaintiff response.

Evidence (3)

Informal

Flammer photographs — negatives and prints examined by witness in Buffalo on January 7-8

discussed, authentication methodology challenged

Informal

Scull photograph — contrasted with Flammer photographs regarding scratch analysis

discussed

Informal

Unidentified document Leonard claimed could prove photographs were being rented for $12,000–$18,000/week

proffered but excluded by court ruling

Notable Exchanges (2)

Mr. Leonard•The Court•Mr. Gelblum•Mr. Petrocelli

Leonard attempts to introduce rental-price figures for the Flammer photographs to establish financial motive for fabrication. Both Gelblum and Petrocelli object simultaneously. Court sustains and refuses to allow Leonard to approach or introduce a supporting document, prompting Leonard to end examination.

heated

Mr. Leonard•Witness

Leonard establishes that the expert spent only two to three minutes per negative, that scratch-continuity analysis has no published standards, and that the entire examination of 30 negatives took about two and a half hours — building a picture of insufficient rigor.

strategic

Light Moments (1)

The Court

Judge asks 'How many of you are going to object?' when both plaintiff attorneys object at the same moment.

Credibility Attacks (2)

⚔ FBI photograph expert

inadequate examination time / insufficient methodology

Leonard established the expert spent only two to three minutes per negative across 30 negatives in about two and a half hours, and that critical judgments (e.g., scratch continuity) rely on purely subjective standards with no published guidelines.

⚔ FBI photograph expert

prior inconsistent statement

Leonard confronted the witness with his deposition answer — that he could not say 100 percent the photographs are fake — to pin him to that position before the jury.

Objections

7 objections (4 sustained, 1 overruled)

Proceeding 8831 • 120 utterances • Defense witness

Civil Trial

Department 103