COMMONWEALTH OF Plymouth, 55 SUPERIOR COURT CRIMINAL ACTION NO.: 81 365 COMMONWEALTH v. DARRELL ON ES I, let? Spivaek, hereby state the following to the best of my knowledge, information and belief: Sworn to under the penalties of perjury, this of April 2015. ivaeic, SnmmanuzLQaall?satiana I am the cwnerioperator of Coherent Legal Video, LLC and Coherent Investigations, the latter of which is a licensed investigation agency in Georgia and Florida, originally licensed in March, 1994. For the past ten years, I have specialized in forensic video analysis and evidence photography. 1 am currently certi?ed by the Forensic Video Certi?cation Board of the International Association for identi?cation as a Certi?ed Forensic Video Examiner, one of eighteen practitioners so certi?ed worldwide. My experience in the forensic video discipline includes operating specialized equipment including, but not limited to: laboratory grade VCRs with full ?eld time base correction, video vectorscopefwavefonn analyzers, specialized video monitors with undersean and pulse cross display capability, high density extended record time ?real time" VCRs, time lapse VCRs, multiplexers, and lossiess video digitizing equipment for Standard De?nition and High De?nition video. AFF. 077 With respect to forensic video analysis and image processing software, I have capericncc with the AvidIOcean Systems workstations with dTeetive? and dPlex Pro? softwareiplugins, Salient Stills VideoFocus Pro?, and Cognitech TriSuite? system consisting of VideoActivetE), Videclnvestigatort?, and AutoMeasure? modules. I developed the Cognitech TriSuite? End User Certi?cation course and currently serve as Senior insuuctor, teaching the course to law enforcement personnel from the United States, Canada, and allied nations semiannually at Cognitech's Pasadena, CA headquarters, and on site at approved customer locations, most recently at the FBI Forensic Audio, Video, and image Analysis Unit in Quantico, VA. 1 also serve as Director of Program Development for Digital Sununit International, a 501 non?profit organization that provides digital forensic training to law enforcement and prosecutorial agency personnel, and serve on the international Association for ldenti?cation's Digital Evidence Science and Practice Subcommittee. in addition to my private sector experience, I served as a Forensic Multimedia Analyst with the Las Vegas Metropolitan Police Department, and in that capacity, secured and processed video evidence ?'om analog and digital CCTV systems in armed robbery, commercial burglary, of?cer involved excessive force complaints, assault andlor battery, larceny, forgery, ?aud, sexual assault, and homicide investigations. My Specialized training in the forensic video discipline includes successful completion of the Law Enforcement and Emergency Services Video Association "Forensic Video Analysis and the Law" course, as well as personalized, hands-on training ?'om Leonid Rodin, founder of Cognitecb, Inc., one of the leading providers of forensic video acquisition hardware and image processing and close range photogrammetry software systems to law enforcement, military, and intelligence agencies. More generally, my technical training and education includes an Associate of Applied Science in Electronic Systems Technology from the Community College of the Air Force, and the following US Air Force technical naining courses: Precision Measurement Equipment Laboratory Specialist, RADIAC Instrument Repair and Calibration, and Physical, Dimensional, and Optical Calibration, all completed at the USAF Mctology Training Branch, Lowry AF B, GO. My publications consist of ?Introduction to Forensic Video Analysis?, SCALI Journal 22 (3) pg. 16-18 (2006), Technical Note prepared by the Special Rapporteur on extrajudicial, summary or arbitrary executions. Philip Alston. in relation to the authenticity ofthe "Channel 4 videotape oo-authored with Daniel Spitz, MD and Peter Diac available for download at the following URL: .011 t" at at lNot A "x Report of the Special Rapporteur on extrajudicial, saint-nary or arbitrary executions, Christof Heyns Addendum (Farensic Wdeo Analysis Supplemental Report re: Authenticity of Digital Hides/A udio Recording Puppet-ted Sri Lenka Executions) pg. 430 443, available at the following URL: -llw - .1 on a i - - AFF. 078 I have given the following presentations on the subject of forensic video analysis: ?Open Source Tools for Resurrecting Lost Multimedia Files, Metadata Analysis, and Image Processing". Digital Summit International 2012 ?Extraction and Display of Metadata in Digital Multiracdia Files?. South Carolina Association of Legal Investigators (SCALI) 2012 Spring Conference, Columbia, SC ?Inclusion of Forensic Video Analysis Within an Agency's Digital Forensic Program". High Tech Crime investigation Association (HTCLA) Ottawa, ON Chapter, February 7, 2012 ?Authentication of Questioned Digital Multimedia Files?. National Association of Technical lnvesti gators (NATIA) Southwest Regional Chapter 2010 Annual Conference; San Antonio, TX ?Forensic Video Analysis: Applications for lnves?gators". South Carolina Association of Legal Investigators (SCALI) 2010 Fall Conference, Columbia, SC ?Video Forensics Boot Camp" 32 Classroom Hour Training Course hosted by FDR, lnc., Ottawa, ON Canada ?Cognitcch Tri-Suite? Forensic Video Software Certi?cation Cause" Pasadena, CA "Cognitech Tti-Suite-Et Forensic Video Software Certi?cation Course" on-site at Federal Bureau of Investigation, Forensic Audio, Video Image Analysis Unit, Quantico, VA "Authentication of Questioned Digital Multimedia Files: A Case Study of the Sri Lanka Execution Videos" Digital Summit International 2011 "Hidden in Plain Sight: Detection and Recovery of PINfPassword Protected Data on SD and MMC Car Digital Summit International 2011 My professional affiliations consist of membership in good standing with the international Association for Identi?cation. My detailed Curriculum Vitae has been provided to counsel, and is available upon request. lhave reviewed the following materials in forming my opinions in this case: had . ?Polaroid SUPERCOLOR VHS Videotape. 2. Trial transcript excerpt of testimony by Brockton, MA Police Department Detective Joseph Smith. 3. Scienti?c Working Group on hanging Technology (SWGIT) Section 7, ?Best Practices for Forensic Video Analysis", Version 1.0 2009.01.16 4. Scienti?c Working Group on Imaging Technology (SWGIT) Section 14, ?Best Practices for Image Authentication", Version 1.1 201101.! 1 AFF. 079 5. Edwards, Thomas. "Video Tape Authenticity by Characteristic Switch Points: Is the Video Recording an Original or 15 It a Copy?" 2003. 6. Cain, Steve. "The Forensic Examination of Video Recordings." The Forensic Ernminer all 1999 (1999). ii. Koeuig, Bruce, Douglas Lacey, and Noel Herold. "Video and Audio Characteristics in VHS Overrecordings." Forensic Science Communications 8, no. 3 (2006}. Background At the request of Lisa Kavanaugh, Esq., Innocence Program Director of the Massachusetts Cumminee for Public Counsel Services, 1 have conducted a preliminary authenticity analysis of a questioned analog video/audio recording. Speci?cally, the questioned recording is :1 address interview with two police detectives also present. A detective who identi?ed himself as Joseph Smith stated at the beginning of the recording that the date was November 26, 1985 and the time was approximately 10:19 AM. At 12 minutes and 29.4 seconds after the recording begins, there is a break in continuity lasting approximately 13.541T seconds. During the majority of this break in continuity, a segment from a syndicated broadcast television show (?The Phil Silvers Show", conunonly known as ?Sgt. Bilko") is present. A review of the trial transcript indicates that Detective Smith claimed in his testimony that he inadvertently, somewhere along about the middle of the interview, pressed the record button on the V. C. R. as opposed to the play button and recorded about 20 seconds of a T.V. program." [sic] During the sidebar and voir dire by defense attorney Elias of Detective Smith, Mr. Eiias was apparently conlhsed about the sequence of events leading to the ?malfunction? resulting in destruction of evidence, and did not appreciate the signi?cance of over 13.5 seconds of content that had been recorded over. Indeed, both Mr. Elias and the Court made remarks that could be interpreted as their impression that the ?ctional character "Sgt. Bilko? was an actual person. The fact that a segment of the interview lasting at least 13.54? seconds was obliterated casts substantial doubt on the authenticity of the recording as a whole, because it is impossible to know what the participants of the interview said during the discontinuity. SWGIT Section 14, ?Best Practices for image Authentication", Version 1.1 2013.01.11 defines ?Continuity Issues" as follows, ?Continuity involves temporal inconsistencies in moving images, or inconsistencies of content within the scene in a still image. Examples include ?cut edits" in a video sequence and anachronism. Anachronism is image content incongruous for the date represented in the image. Similar analysis is done to detect incongruities of place and situation. Provenance issues involve the time, place, and manner of image creation. For instance, a photograph purporting to be an original of Abraham Lincoln recorded on modern ?lm would be suspect." In the context of this questioned recording, the precise length of material redacted cannot be determined, because although the length of the recording from. the points at which Detective Smith announced the beginning and ending times, he used two different time references, one behind him for the beginning, and his wristwatch for the ending time, and AFF. 080 there is no way to determine the error of offset in between these two time references at this point. The trial of this defendant took place in September, 1936, well before the existence of Forensic Video Analysis as a forensic discipline, and particularly, well before the development of now well recognized testing protocols for videotape generation determination and detection of undisclosed edit points. While authenticity analysis of static (photographic) images has been possible for decades, examination of questioned video recordings for authenticity was not well reported until the late 1990' with one of the ?rst lmown peer reviewed publications on the subject, Stove Cain's "The Forensic Examination of Video Recordings" publication in Fall, 1999. Therefore, there was no method for subjecting the videotape tendered as evidence to objective testing for the purpose of evaluating the veracity of Detective Smith's testimony at the time of the trial. Wales: Using a Panasonic ACE-1930 S-VHS with Time Base Correction as a source deck, I ingested the S-Video and stereo Le?iRight analog audio signals as an uncompressed .AVI (Audio Video Interleaved) ?le. analyzed the video segment with Cogrtimch Videolnvestigator? forensic video software, and exported still interlaced frame images as appropriate for illustration of switch point analysis generation determination and artifacts indicative of edit points. Frame 11 Containing Even and Odd Fields AFF. 081 In the following example interlaced home, more than two switch points are visible in the nnderscan region of the video, on non-adjacent lines. This is objective evidence that the tape submittui is not an original recording. Based on the number of switch points visible on multiple frames, the videotape is a copy, most likely a third generation recording, that is, a copy of a copy. Frame 245 with Swih Points Annotated Beginning at Frame 22461, the interview recording appears to be interrupted by a segment of a broadcast television program Phil Silvers Show?) 13.547 seconds in length. Analysis revealed artifacts that indicate that the interview was actually recorded over the broadcast television program. That is, the television program recording predates the intendew recording, and was recorded over using a Video Cassette Recorder (VCR) without a ?ying erase head. Speci?cally, the overreeording contains color errors, errors, linear audio hack partial loss, control tack modi?cationI and ?pull-down" segments, which are segments of video in which the underlying recording is progressively mplaeed by the new recording from top to bottom. The sequence of video segments is as follows: Frame 1 to 22460 (00: 12:3 3) - Source VCR blue screen and interview Frame 22461 to 22627 (00:12:39) - Underlying broadcast television program Frame 2638 to 22653 (00:12:40) - Loss of signal Frame 2654 to 22720 (00:12:42) Source VCR blue screen Frame 22721 to 46107 (00:25:42) Pull down segmentiinterview, then blue screen Shields-t:- AFF. 082 Frame 22461 Even Field with Cuinr Enars Visible to Underlying Program I AFF. 083 Frame 22741 with Pull-down Segment Note that the videotape contains source VCR blue screen from the end of the interview at 00:25:42 until 00:41:08, at which time the source VCR display indicates that the tape is being rewound. Consumes The explanation for the discontinuity provided by Detective Smith in his testimony, that be inadvertently, somewhere along about the middle of the interview, pressed the record button on the V. C. R. as opposed to the play button and recorded about 20 seconds of a program.? is objectively not possible. The broadcast television program was already present on the videotape, and overreeorded with the interview, except for the portion that was redacted. The copy of the videotape examined is consistent with a ?crash edit", that is, recording from a source VCR to a recording VCR without precise controls. The explanation offered by Detective Smith also de?es logic, because it would be unnecessary for him to press the play button in the middle of the recording, since it was already playing- The undisclosed editing of this videotape, speci?cally redacting a portion of the intendew, coupled with the objectively impossible explanation of ?inadvertent? destruction of the evidence disquali?es this recording as authentic. AFF. 084